KINAM GOLD INC.
BY-LAWS
ARTICLE I
Stockholders
Section 1.1 Annual Meetings. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place either within or
without the State of Nevada as may be designated by the Board of Directors from
time to time. Any other proper business may be transacted at the annual meeting.
Section 1.2 Special Meetings. Special meetings of stockholders may be
called at any time by the Chairman of the Board, if any; the Vice Chairman of
the Board, if any; the President or the Board of Directors, to be held at such
date, time and place either within or without the State of Nevada as may be
stated in the notice of the meeting. A special meeting of stockholders shall be
called by the Secretary upon the written request of stockholders who together
own of record a majority of the outstanding stock of each class entitled to vote
at such meeting. Such written request must state the purpose of the meeting.
Section 1.3 Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and the
purpose or purposes for which the meeting is called. Unless otherwise provided
by law, the written notice of any meeting shall be given not less than ten nor
more than sixty days before the date of the meeting to each stockholder entitled
to vote at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
Section 1.4 Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty 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.
Section 1.5 Quorum. At each meeting of stockholders, except where
otherwise provided by law or the articles of incorporation or these by-laws, the
holders of a majority of the outstanding shares of each class of stock entitled
to vote at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, two or more classes or
series of stock shall be considered a single class if the holders thereof are
entitled to vote together as a single class at the meeting. In the absence of a
quorum, the stockholders so present may, by majority vote, adjourn the meeting
from time to time in the manner provided by Section 1.4 of these by-laws until a
quorum shall attend. Shares of its own capital stock belonging on the record
date for the meeting to the Corporation or to another corporation, if a majority
of the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6 Organization. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any; or in his absence, by the Vice
Chairman of the Board, if any; or in his absence by the President, or in his
absence by the Executive Vice President, if any; or in his absence by a Vice
President; or in the absence of the foregoing persons, by a chairman chosen at
the meeting. The Secretary shall act as secretary of the meeting, but in the
absence of the Secretary, the Chairman of the meeting may appoint any person to
act as secretary of the meeting.
Section 1.7 Voting; Proxies. Unless otherwise provided in the articles
of incorporation, each stockholder entitled to vote at any meeting of
stockholders shall be entitled to one vote for each share of stock held by him
or her which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporation action in writing without a meeting may authorize another person
or persons to act for him or her by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date with the Secretary of the Corporation. Voting at
meetings of stockholders need not be by written ballot unless the holders of a
majority of the outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy at such meeting shall so determine. At all
meetings of stockholders for the election of directors, a plurality of the votes
cast shall be sufficient to elect. All other elections and questions shall,
unless otherwise provided by law or by the articles of incorporation or these
by-laws, be decided by the vote of the holders of a majority of the outstanding
shares of all classes of stock entitled to vote thereon present in person or by
proxy at the meeting, provided that (except as otherwise required by law or by
the articles of incorporation) the Board of Directors may require a larger vote
upon any election or question.
Section 1.8 Fixing Date for Determination of Stockholders of Record. 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
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 nor less
than ten days before the date of such meeting or more than sixty days prior to
any other action, as applicable. If no record date is fixed: (1) 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; (2) the record date
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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 expressed; and (3) 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 a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
Section 1.9 List of Stockholders Entitled to Vote. The Secretary shall
prepare and make available, at least ten 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 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.
Section 1.10 Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the articles of incorporation, any action required by law
to be taken at any annual or special meeting of stockholders of the Corporation,
or any action which may be taken at any annual or special meeting of such
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.
Section 1.11 Inspectors of Election. Prior to any meeting of
stockholders, the Board of Directors or the President shall appoint one or more
inspectors to act at such meeting and make a written report thereof and may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no such inspector or alternate is able to act at the
meeting of stockholders, the person presiding at the meeting shall appoint one
or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain the number of shares
outstanding and the voting power of each, determine the shares represented at
the meeting and the validity of proxies and ballots, count all votes and
ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint or retain
other persons to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls. In determining the
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validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted therewith, any
information provided by a stockholder who submits a proxy by telegram, cablegram
or other electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and records of
the Corporation; and, they may also consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider other
reliable information for such purpose, they shall, at the time they make their
certification, specify the precise information considered by them, including the
person or persons from whom they obtained the information, when the information
was obtained, the means by which the information was obtained and the basis for
the inspectors' belief that such information is accurate and reliable.
ARTICLE II
Board of Directors
Section 2.1 Powers; Number; Qualifications. The business and affairs of
the Corporation shall be managed by the Board of Directors, except as may be
otherwise provided by law or in the articles of incorporation. The Board shall
consist of one or more members, the number thereof to be determined from time to
time by the Board or by the stockholders. Directors need not be stockholders.
Section 2.2 Election; Term of Office; Resignation; Removal; Vacancies.
Each director shall hold office until the annual meeting of stockholders next
succeeding his election and until his successor is elected and qualified or
until his earlier resignation or removal. Subject to the rights of holders of
any class or series of stock having a preference over the Common Stock of the
Corporation as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or the Nominating Committee of
the Board of Directors or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election as director
at a meeting only if written notice of such stockholder's intent to make such
nomination or nominations has been timely given to the Secretary of the
Corporation. To be timely, a stockholder's notice must be received at the
principal executive office of the Corporation not later than (i) with respect to
an election to be held at an annual meeting of stockholders, ninety days prior
to the anniversary date of the immediately preceding annual meeting, and (ii)
with respect to an election to be held at a special meeting of stockholders for
the election of directors, the close of business on the tenth day following the
date on which notice of such meeting is first given to stockholders. Each such
notice shall set forth: (a) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) the number of shares of the Corporation owned of record and
beneficially by the stockholder; (d) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (e) such other information
regarding each nominee proposed by such stockholder as would be required to be
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included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (f) the consent of each nominee to serve
as a director of the Corporation if so elected. The presiding officer of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
Any director may resign at any time upon written notice to the Board of
Directors or to the President or Secretary of the Corporation. Such resignation
shall take effect at the time specified therein, and unless otherwise specified
therein, no acceptance of such resignation shall be necessary to make it
effective. The stockholders may remove any director with or without cause at any
time. Unless otherwise provided in the articles of incorporation or these
by-laws, vacancies and newly created directorships resulting from any increase
in the authorized number of directors or from any other cause may be filled by a
majority of the directors then in office, although less than a quorum, or by the
sole remaining director.
Section 2.3 Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Nevada and
at such times as the Board may from time to time determine, and if so
determined, notice thereof need not be given.
Section 2.4 Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of Nevada
whenever called by the Chairman of the Board, if any; by the President or by any
two directors. Reasonable notice thereof shall be given by the person or persons
calling the meeting.
Section 2.5 Telephonic Meetings Permitted. Unless otherwise restricted
by the articles of incorporation or these by-laws, members of the Board of
Directors, or any committee designated by the Board, may participate in a
meeting of the Board or of 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, and participation in a
meeting pursuant to this by-law shall constitute presence in person at such
meeting.
Section 2.6 Quorum; Vote Required for Action. At all meetings of the
Board of Directors, one-third of the entire Board shall constitute a quorum for
the transaction of business. The vote of a majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board unless the
articles of incorporation or these by-laws shall require a vote of a greater
number. In case at any meeting of the Board a quorum shall not be present, the
members of the Board present may adjourn the meeting from time to time until a
quorum shall attend.
Section 2.7 Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any; or in his absence by the
Vice Chairman of the Board, if any; or in his absence by the President, or in
his absence, by the Executive Vice President, if any; or in their absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in the absence of the Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.8 Informal Action by Directors. Unless otherwise restricted
by the articles of incorporation or these by-laws, any action required or
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permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board or
of such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee.
Section 2.9 Powers of Attorney. The Board of Directors may authorize
any officer or officers of the Corporation to confer all kinds of powers of
attorney upon any person, persons or entities (including power of attorney in
favor of lawyers, solicitors or judicial agents, in order to enable them to
carry on and perform the legal representation of the Corporation or any of its
subsidiaries in connection with any judicial process), with all the faculties
and powers that he, she or they may deem necessary or advisable, and also to
revoke the same in whole or in part.
ARTICLE III
Committees
Section 3.1 Committees. The Board of Directors 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 of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he, she or they constitute a quorum, may (but are not
required to) unanimously appoint another member of the Board to act at the
meeting in 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 all the powers and authority of the Board in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committees shall have power or authority in reference to amending the articles
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 dissolution, removing or
indemnifying directors or amending these by-laws; and, unless the resolution
expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
Section 3.2 Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of a provision by the
Board or a provision in the rules of such committee to the contrary, a majority
of the entire authorized number of members of such committee shall constitute a
quorum for the transaction of business, the vote of a majority of the members
present at a meeting at the time of such vote if a quorum is then present shall
be the act of such committee, and in other respects each committee shall conduct
its business in the same manner as the Board conducts its business pursuant to
Article II of these by-laws.
Section 3.3 Audit Committee. The Board of Directors shall, by
resolution passed by a majority of the entire Board of Directors, designate an
Audit Committee to consist of not less than two nor more than five Directors.
The Audit Committee shall be comprised solely of directors of the Corporation
who are independent of management and free from any relationship that, in the
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opinion of the Corporation's Board of Directors, would interfere with the
exercise of independent judgment as a committee member. No director who is also
an officer or employee of the Corporation or of any direct or indirect
subsidiary of the Corporation, shall be a member of the Audit Committee. The
Board of Directors shall designate one of the members of the Audit Committee as
Chairman of the Audit Committee. The Audit Committee shall recommend to the
Board the firm of independent public accountants which shall conduct the annual
audit of the accounts of the Corporation and the nature and scope of the audit,
which shall be in accordance with generally accepted auditing practices; and it
shall furnish the Board of Directors with a written report at least annually
containing its recommendations and any comments it may desire to make about the
financial organization or accounting practices of the Corporation and the
qualifications or performance of its past or proposed auditing firm. The Board
of Directors shall have power at any time to fill vacancies in, to change the
membership of, or to dissolve the Audit Committee and the Audit Committee shall
not have power to fill any vacancies in such Committee. The Audit Committee
shall elect its secretary and may designate such other assistants as it shall
from time to time deem necessary. Two members of the Audit Committee shall
constitute a quorum for meetings. The Audit Committee shall keep minutes of its
meetings, in which minutes shall be recorded all action taken, and such action
shall be reported to the Board at the meeting next succeeding such action.
Section 3.4 Nominating Committee. The Board of Directors shall, by
resolution passed by a majority of the entire Board, designate a Nominating
Committee to consist of two or more Directors. The Board of Directors shall
designate one of the members of the Nominating Committee as Chairman of the
Committee. The Nominating Committee shall recommend to the Board prospective
members of the Board of Directors. The Board shall have the power at any time to
fill vacancies in, to change the membership of, or to dissolve the Nominating
Committee and the Nominating Committee shall not have the power to fill any
vacancies in such Committee. The Nominating Committee shall elect its secretary
and may designate such other assistants as it may from time to time deem
necessary. A majority of the members of the Nominating Committee shall
constitute a quorum. The Nominating Committee shall keep minutes of its
meetings, in which shall be recorded all action taken, and all action of the
Nominating Committee shall be reported to the Board at the meeting next
succeeding such action.
ARTICLE IV
Officers
Section 4.1 Officers; Election; Qualification; Term of Office;
Resignation; Removal; Vacancies. As soon as practicable after the annual meeting
of stockholders in each year, the Board of Directors shall elect a President, a
Secretary and a Treasurer, and it may, if it so determines, elect from among its
members a Chairman of the Board and a vice Chairman of the Board. The Board may
also elect a Chief Executive Officer, a Chief Financial Officer, an Executive
Vice President, one or more Vice Presidents, one or more Assistant Treasurers, a
Controller and one or more Assistant Controllers, and may give any of them such
further designations or alternate titles as it considers desirable. Each such
officer shall hold office until the first meeting of the Board after the annual
meeting of stockholders next succeeding his or her election, and until his or
her successor is elected and qualified or until his or her earlier resignation
or removal. Any officer may resign at any time upon written notice to the Board
or to the President or the Secretary of the Corporation. Such resignation shall
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take effect at the time specified therein, and unless otherwise specified
therein, no acceptance of such resignation shall be necessary or without cause
at any time. Any such removal shall be without prejudice to the contractual
rights of such officer, if any, with the Corporation, but the election or
appointment of an officer shall not of itself create contractual rights. Any
number of offices may be held by the same person. Any vacancy occurring in any
office of the Corporation by death, resignation, removal or otherwise may be
filled for the unexpired portion of the term by the Board at any regular or
special meeting.
Section 4.2 Chairman of the Board. The Chairman of the Board, if any,
shall preside at all meetings of the Board of Directors and of the stockholders
at which time he or she shall be present and shall have and may exercise such
powers as are, from time to time, assigned by the Board and as may be provided
by law.
Section 4.3 Vice Chairman of the Board. In the absence of the Chairman
of the Board, the Vice Chairman of the Board, if any, shall preside at all
meetings of the Board of Directors and of the stockholders at which he or she
shall be present. He or she shall have and may exercise such powers as are, from
time to time, assigned by the Board and as may be provided by law.
Section 4.4 President. In the absence of the Chairman of the Board and
Vice Chairman of the Board, the President shall preside at all meetings of the
Board of Directors and of the stockholders at which he or she shall be present.
The President shall have general charge and supervision of the business of the
Corporation and, in general, shall perform all duties incident to the office of
president of a corporation, and such other duties as, from time to time, may be
assigned by the Board or as may be provided by law.
Section 4.5 Executive Vice President. The Executive Vice President, if
any, shall, under the direction of the President, share the general charge of
the operations of the Corporation. In the absence or inability to act of the
President, the Executive Vice President shall act in place of and instead of the
President during such absence or inability.
Section 4.6 Vice Presidents. The Vice President or Vice Presidents, at
the request of the President or in the absence of the President and the
Executive Vice President (if any) or during their inability to act, shall
perform the duties of the President, and when so acting shall have the powers of
the President. If there be more than one Vice President, the Board of Directors
may determine which one or more of the Vice Presidents shall perform any of such
duties; or, if such determination is not made by the Board, the President may
make such determination; otherwise, any of the Vice Presidents may perform any
of such duties. The Vice President or Vice Presidents shall have such other
powers and perform such other duties as may be assigned by the Board or the
President, or as may be provided by law.
Section 4.7 Secretary. The Secretary shall record all the proceedings
of the meetings of the stockholders and the Board of Directors and of any
committees in a book to be kept for that purpose; shall see that all notices are
duly given in accordance with the provisions of these by-laws or as required by
law; shall be custodian of the records of the Corporation; may affix the
corporate seal to any document the execution of which, on behalf of the
Corporation, is duly authorized, and when so affixed may attest the same; and,
in general, shall perform all duties incident to the office of secretary of a
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corporation, and such other duties as, from time to time, may be assigned by the
Board or the President, or as may be provided by law.
Section 4.8 Assistant Secretaries. Any one of the Assistant Secretaries
may, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary. Each Assistant Secretary shall perform
such other duties as the Board of Directors may prescribe or as the President
may delegate.
Section 4.9 Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by or under
authority of the Board of Directors. If required by the Board, the Treasurer
shall give a bond for the faithful discharge of his duties, with such surety or
sureties as the Board may determine; shall keep or cause to be kept full and
accurate records of all receipts and disbursements in books of the Corporation
and shall render to the President and to the Board, whenever requested, an
account of the financial condition of the Corporation; and, in general, shall
perform all the duties incident to the office of treasurer of a corporation, and
such other duties as may be assigned by the Board or the President, or as may be
provided by law.
Section 4.10 Assistant Treasurers. Any one of the Assistant Treasurers
may, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer. Each Assistant Treasurer shall perform
such other duties as the Board of Directors may prescribe or as the President
may delegate.
Section 4.11 Controller. The Controller shall be the chief accounting
officer of the Corporation. The Controller shall keep adequate records of all
assets, liabilities and transactions of the Corporation and shall have adequate
audits thereof currently and regularly made. In conjunction with other officers,
the Controller shall initiate and enforce measures and procedures whereby the
business of the Corporation shall be conducted with maximum safety, efficiency
and economy. The Controller shall perform all duties incident to the office of
controller and such other duties as the Board of Directors may prescribe or as
the President may delegate.
Section 4.12 Assistant Controllers. Any one of the Assistant
Controllers may, in the absence or disability of the Controller, perform the
duties and exercise the power of the Controller. Each Assistant Controller shall
perform such other duties as the Board of Directors may prescribe or as the
President may delegate to him.
Section 4.13 Other Officers. The Board of Directors may from time to
time elect such other officers, agents or employees, and may delegate to them
such powers and duties as it may deem desirable.
ARTICLE V
Stock
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Section 5.1 Certificates. 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, if any;
or the President or a 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 the holder in the Corporation. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. 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, it may be issued by the Corporation with the same effect as if he or she
were such officer, transfer agent or registrar at the date of issue.
Section 5.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of
New Certificates. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or the legal representative of the owner, to
give the Corporation a bond sufficient to indemnify it 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 such new certificate.
ARTICLE VI
Indemnification and Insurance
Section 6.1 Right to Indemnification. Each person who was or is a party
or is threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action or inaction in an official
capacity or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by the laws of Nevada, as the same exist or may
hereafter be amended, against all costs, charges, expenses, liabilities and
losses (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) actually and reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
Section 6.2 hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred in
this Article shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Nevada Revised
Statutes require, the payment of such expenses incurred by a director, officer
or employee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
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benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking by or on behalf of such
director, officer or employee to repay all amounts so advanced if it shall
ultimately be determined that such director, officer or employee is not entitled
to be indemnified under this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors, officers and employees. For purposes of this Article VI, the term
"Corporation" shall include any predecessor of the Corporation and any
constituent corporation (including any constituent of a constituent) absorbed by
the Corporation in a consolidation or merger.
Section 6.2 Right of Claimant to Bring Suit. If a claim under Section
6.1 of this Article is not paid in full by the Corporation within thirty days
after written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim; and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has failed to meet a standard of
conduct which makes it permissible under Nevada law for the Corporation to
indemnify the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is permissible in the circumstances
because he or she has met such standard of conduct, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
failed to meet such standard of conduct.
Section 6.3 Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the articles of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 6.4 Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself, any director, officer, employee or
agent of the Corporation and any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise against any such
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Nevada Revised Statutes.
Section 6.5 Expenses as a Witness. To the extent that any director,
officer, employee or agent of the Corporation is by reason of such position, or
a position with another entity at the request of the Corporation, a witness in
any action, suit or proceeding, he or she shall be indemnified against all costs
and expenses actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.
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Section 6.6 Indemnity Agreements. The Corporation may enter into
agreements with any director, officer, employee or agent of the Corporation
providing for indemnification to the full extent permitted by the laws of
Nevada.
ARTICLE VII
Miscellaneous
Section 7.1 Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 7.2 Seal. The Corporation may have a corporate seal which shall
have the name of the Corporation inscribed thereon and shall be in such form as
may be approved from time to time by the Board of Directors. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section 7.3 Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Whenever notice is required to be given by law or under any
provision of the articles of incorporation or these by-laws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person 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 stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice unless so required by the articles of incorporation or
these by-laws.
Section 7.4 Interested Directors; Quorum. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (1) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board or the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (2) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (3) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board, a committee thereof or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board or of a committee which authorizes the contract
or transaction.
Section 7.5 Form of Records. Any records maintained by the Corporation
in the regular course of its business, including its stock ledger, books of
account and minute books, may be kept on, or be in the form of, punch cards,
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magnetic tape, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
Section 7.6 Voting Other Stocks. Unless otherwise directed by the Board
of Directors, the President or the Executive Vice President or any Vice
President or the Secretary or Treasurer may vote any shares of stock issued by
another corporation and owned by the Corporation at any stockholders' meeting of
such other corporation and the President, the Executive Vice President, any Vice
President or the Secretary or Treasurer shall have the authority in behalf of
the Corporation to execute and deliver a proxy or proxies for any stockholders'
meeting or give any stockholders' consent in respect of the shares of stock of
such other corporation owned by the Corporation.
Section 7.7 Amendment of By-Laws. These by-laws may be altered or
repealed and new by-laws made by the Board of Directors, but the stockholders
may make additional by-laws and may alter or repeal any by-law whether or not
adopted by them.
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