Exhibit 3.02
AMENDED AND RESTATED BYLAWS OF UNITED STATES ANTIMONY CORPORATION
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RESTATED BYLAWS
OF
UNITED STATES ANTIMONY CORPORATION
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Pursuant to Section 35-1-234 of the Montana Business
Corporation Act, the undersigned corporation restates in their
entirety the Bylaws of United States Antimony Corporation as
initially filed on January 15, 1970:
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of
the corporation required by the Montana Business Corporation Act
("MBCA") to be continuously maintained in the state of Montana may,
but need not, be the same as any of its principal places of
business in the state of Montana. In any case, the corporation's
registered office shall be the business office of the registered
agent required by the MBCA to be continuously maintained in the
state of Montana. The address of the registered office may be
changed from time to time by the Board of Directors or the
president of the corporation by delivering a statement to the
Montana Secretary of State containing the information required by
the MBCA. (Mont. Code Ann. Sections 35-1-313 and 35-1-314.)
Section 1.2 Principal Office; Other Offices. The
corporation may also have and maintain an office or principal place
of business in Thompson Falls, Montana, or at such other place as
may be fixed by the Board of Directors, and may also have offices
at such other places, both within and without the state of Montana,
as the Board of Directors may from time to time determine or the
business of the corporation may require.
ARTICLE II
CORPORATE SEAL
Section 2.1 Corporate Seal. The corporation may have a
corporate seal, which may be altered at will by the Board of
Directors. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner
reproduced. (Mont. Code Ann. Section 35-1-115(2)).
ARTICLE III
SHAREHOLDERS' MEETINGS
Section 3.1 Place of Meetings. The Board of Directors
may designate any place, either within or without the state of
Montana, as the place of meeting for any annual meeting or for any
special meeting of shareholders called by or at the direction of
the Board of Directors. A waiver of notice signed by all
shareholders entitled to vote at a meeting may designate any place,
either within or without the state of Montana, as the place for the
holding of such meeting. If no place is designated by the Board of
Directors or if a special meeting be called otherwise than by or at
the direction of the Board of Directors, the place of meeting shall
be the principal office of the corporation. (Mont. Code Ann.
Sections 35-1-516(2) and 35-1-517(3)).
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Section 3.2 Annual Meetings. The annual meeting of the
shareholders of the corporation shall be held on the second Tuesday
in the month of March in each year at the hour of 2:00 p.m. (except
that if said date is a holiday, the meeting shall be held the next
day at said time), or on such other date and at such other time
which may from time to time be designated by the Board of
Directors, for the purpose of electing directors and for the
transaction of such other business as may properly come before the
meeting. The failure to hold an annual meeting at the time stated
or otherwise designated as provided herein shall not affect the
validity of any corporate action. (Mont. Code Ann. Section 35-1-
516).
Section 3.3 Special Meetings. Special meetings of the
shareholders of the corporation may be called at any time, for any
purpose or purposes, by the Board of Directors or the president of
the corporation or by the holders of at least ten percent (10%) of
the votes entitled to be cast on any issue proposed to be
considered at the meeting (provided that such holders sign, date
and deliver to the corporation's secretary one or more written
demands for the meeting describing the purpose(s) for which it is
to be held) or by the person or persons authorized to do so by the
Restated Articles of Incorporation. Special meetings of the
shareholders of the corporation may not be called by any other
person or persons. (Mont. Code Ann. Section 35-1-517(1)).
Section 3.4 Notice of Meetings. The corporation shall
notify shareholders of the date, time and place of each annual and
special shareholders' meeting no fewer than ten (10) nor more than
sixty (60) days before the meeting date. Unless otherwise required
by law or the Restated Articles of Incorporation, the corporation
is required to give notice of a meeting only to shareholders
entitled to vote at the meeting. Unless otherwise required by law
or the Restated Articles of Incorporation, notice of an annual
meeting need not include a description of the purpose or purposes
for which the meeting is called. Notice of a special meeting must
include a description of the purpose or purposes for which the
meeting is called. Only business within the purpose(s) described
in the special meeting notice may be conducted at such special
meeting. (Mont. Code Ann. Sections 35-1-517(1),(4), 35-1-520).
Section 3.5 Waiver of Notice. Notice of any meeting of
shareholders may be waived in writing, signed by the person
entitled to notice thereof and delivered to the corporation for
inclusion in the corporate minutes or filing with the corporate
records, either before or after the date and time stated in the
notice. A shareholder's attendance at a meeting waives objection
to lack of notice or defective notice of the meeting unless the
shareholder at the beginning of the meeting objects to holding the
meeting or transacting business at the meeting, and further waives
objection to consideration of a particular matter at the meeting
that is not within the purpose of purposes described in the meeting
notice unless the shareholder objects to considering the matter
when it is presented. Any shareholder so waiving notice of such
meeting shall be bound by the proceedings of any such meeting in
all respects as if due notice thereof had been given. (Mont. Code
Ann. Section 35-1-521).
Section 3.6 Voting Groups. "Voting group" means all
shares of one (1) or more classes or series that under the Restated
Articles of Incorporation or the MBCA are entitled to vote and be
counted together collectively on a matter at a meeting of
shareholders. All shares entitled by the Restated Articles of
Incorporation or the MBCA to vote generally on the matter are for
that purpose a single voting group. If the Restated Articles of
Incorporation authorize the
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election of all or a specified number of directors by the holders
of one (1) or more authorized classes of shares, such class, or
classes, of shares is a separate voting group for purposes of the
election of directors. (Mont. Code Ann. Sections35-1-113(26), 35-
1-420).
Section 3.7 Quorum. Shares entitled to vote as a separate
voting group may take action at a meeting only if a quorum of those
shares exists with respect to that matter. Unless the MBCA or the
Restated Articles of Incorporation impose a greater requirement, a
majority of the votes, represented in person or by proxy, entitled
to be cast on a matter by the voting group shall constitute a
quorum of that voting group for action on that matter. Once a
share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and
any adjournment thereof unless a new record date is or must be set
for that adjourned meeting. (Mont. Code Ann. Sections 35-1-
528(1),(2), 35-1-530(1)).
Section 3.8 Adjournment and Notice of Adjourned
Meetings. Any meeting of shareholders at which a quorum is
present, whether annual or special, may be adjourned from time to
time by the vote of a majority of the votes entitled to be cast at
the meeting. If an annual or special shareholders' meeting is
adjourned to a different date, time or place, notice need not be
given of the new date, time or place if the new date, time or place
is announced at the meeting before adjournment. If a new record
date for the adjourned meeting is or must be fixed under Section
7.4, however, notice of the adjourned meeting must be given under
this Section to persons who are shareholders as of the new record
date. At the adjourned meeting the corporation may transact any
business which might have been transacted at the original meeting.
(Mont. Code Ann. Section35-1-520(5)).
Section 3.9 Proxies. At all meetings of shareholders, a
shareholder may vote either in person or by proxy. A shareholder
may appoint a proxy to vote or otherwise act for that shareholder
by signing an appointment form, either personally or by attorney-
in-fact, or
by transmitting or authorizing the transmission of an appointment
by telegram, cablegram, telephone, fax, e-mail, internet, or other
means of electronic transmission, provided that the transmission
contains sufficient information to demonstrate that the
transmission was authorized by the shareholder. The secretary of
the corporation or other officer or agent that receives the
transmission shall determine whether or not the transmission was
authorized by the shareholder based on the information contained in
the transmission. The signature provisions of Section 3.11 of
these Bylaws pertaining to proxies do not apply to transmissions
that are determined to be authorized under the provisions of this
Section. An appointment of proxy is effective upon receipt, before
or at the time of the meeting, by the secretary of the corporation
or other officer or agent authorized to tabulate votes. No proxy
shall be valid after eleven (11) months from the date of its
execution, unless otherwise expressly provided in the appointment
form. An appointment of a proxy is revocable by the shareholder
unless the appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an interest as
defined in the MBCA. The death or incapacity of the shareholder
appointing a proxy does not affect the right of the corporation to
accept the proxy's authority unless notice of the death or
incapacity is received by the secretary or other officer or agent
authorized to tabulate votes before the proxy exercises the proxy's
authority under the appointment. An irrevocable proxy is revoked
when the interest with which it is coupled is extinguished.
Subject to Section 3.12 of these Bylaws and to any express
limitation on the proxy's authority appearing on the face of the
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appointment form, the corporation is entitled to accept the proxy's
vote or other action as that of the shareholder making the
appointment. (Mont. Code Ann. Section 35-1-525).
Section 3.10 Voting Rights (Cumulative Voting). Only
shares are entitled to vote. Except as otherwise provided by law,
only persons in whose names shares stand on the stock records of
the corporation on the record date, as provided in Sections 3.12
and 7.4 of these Bylaws, shall be entitled to vote on any matter.
Unless the Restated Articles of Incorporation provide otherwise,
each outstanding share, regardless of class, is entitled to one (1)
vote on each matter voted on at a shareholders' meeting. If a
quorum exists, action on a matter, other than the election of
directors, by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing
the action, unless the Restated Articles of Incorporation or the
MBCA require a greater number of affirmative votes. Unless
otherwise provided in the Restated Articles of Incorporation,
directors are elected by a plurality of the votes cast by the
shares entitled to vote in the election at a meeting at which a
quorum is present. At each election for directors each shareholder
entitled to vote at such election shall have the right to cumulate
his votes by multiplying the number of votes he is entitled to cast
by the number of directors for whom he is entitled to vote and
casting the product for a single candidate or distributing the
product among two or more candidates. (Mont. Code Ann. Sections 35-
1-524(1), 35-1-528(3), 35-1-531).
Section 3.11 Corporation's Acceptance of Votes . (Mont.
Code Ann. Section 35-1-527).
(1) If the name signed on a vote, consent, waiver, or proxy
appointment corresponds to the name of a shareholder, the
corporation if acting in good faith is entitled to accept the vote,
consent, waiver, or proxy appointment and give it effect as the act
of the shareholder.
(2) If the name signed on a vote, consent, waiver, or proxy
appointment does not correspond to the name of its shareholder, the
corporation if acting in good faith is nevertheless entitled to
accept the vote, consent, waiver, or proxy appointment and give it
effect as the act of the shareholder if:
(a) The shareholder is an entity and the name signed
purports to be that of an officer or agent of the entity;
(b) The name signed purports to be that of an
administrator, executor, guardian, or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary
status acceptable to the corporation has been presented with
respect to the vote, consent, waiver, or proxy appointment;
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation
requests, evidence of this status acceptable to the corporation has
been presented with respect to the vote, consent, waiver, or proxy
appointment;
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if
the corporation requests, evidence acceptable
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to the corporation of the signatory's authority to sign for the
shareholder has been presented with respect to the vote, consent,
waiver, or proxy appointment; or
(e) Two or more persons are the shareholder as cotenants
or fiduciaries and the name signed purports to be the name of at
least one of the co-owners and the person signing appears to be
acting on behalf of all the co-owners.
(3) The corporation is entitled to reject a vote, consent,
waiver, or proxy appointment if the secretary or other officer or
agent authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on
it or about the signatory's authority to sign for the shareholder.
(4) The corporation is not entitled to vote treasury shares.
Absent special circumstances, the corporation's shares are not
entitled to vote if they are owned, directly or indirectly, by a
second corporation, domestic or foreign, and if this corporation
owns, directly or indirectly, a majority of the shares entitled to
vote for directors of the second corporation; provided, however,
that this provision does not limit the power of the corporation to
vote any shares, including its own shares, held by it in a
fiduciary capacity. (Mont. Code Ann. Section 35-1-524).
Section 3.12 List of Shareholders. After fixing a record
date for a meeting, the corporation shall prepare an alphabetical
list of the names of all its shareholders who are entitled to
notice of such meeting. The list must be arranged by voting group,
and within each voting group by class or series of shares, and show
the address and the number of shares registered in the name of each
shareholder. The shareholders' list must be available for
inspection by any shareholder, beginning two (2) business days
after notice is given of the meeting for which the list was
prepared and continuing through the meeting, at the corporation's
principal office or at a place identified in the meeting notice in
the city where the meeting will be held. A shareholder, his agent,
or attorney is entitled on written demand to inspect and, subject
to the requirements of Mont. Code Ann. Section 35-1-1107(3), to
copy the list, during regular business hours and at his expense,
during the period it is available for inspection. The corporation
shall make the shareholders' list available at the meeting, and any
shareholder, his agent, or attorney is entitled to inspect the list
at any time during the meeting or any adjournment. Refusal or
failure to prepare or make available the shareholders list does not
affect the validity of action taken at the meeting. (Mont. Code
Ann. Section 35-1-523).
Section 3.13 Conduct of Meeting. At every meeting of
shareholders, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the president, or, if
the president is absent, the most senior vice president present, or
in the absence of any such officer, a chairman of the meeting
chosen by a majority in interest of the shareholders entitled to
vote, present in person or by proxy, shall act as chairman. The
secretary or, in his absence, an assistant secretary directed to do
so by the president, shall act as secretary of the meeting.
Section 3.14 Action Without Meeting. Action required or
permitted by MBCA to be taken at a shareholders' meeting may be
taken without a meeting if the action is taken by all the
shareholders entitled to vote on the action. The action must be
evidenced by one (1) or more
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written consents describing the action taken, signed by all the
shareholders entitled to vote on the action, and delivered to the
corporation for inclusion in the minutes or filing with the
corporate records. A consent signed under this Section has the
effect of a meeting vote and may be described as such in any
document. If the MBCA requires that notice of proposed action be
given to nonvoting shareholders and the action is to be taken by
unanimous consent of the voting shareholders, the corporation must
give its nonvoting shareholders written notice of the proposed
action at least ten (10) days before the action is taken. The
notice must contain or be accompanied by the same material that,
under the MBCA, would have been required to be sent to nonvoting
shareholders in a notice of meeting at which the proposed action
would have been submitted to the shareholders for action. (Mont.
Code Ann. Section 35-1-519).
Section 3.15 Nomination of Directors. Nominations of
persons for election to the Board of Directors of this corporation
at the annual meeting of shareholders may be made at such meeting
by or at the direction of the Board of Directors, by any nominating
committee or person appointed by the Board of Directors, or by any
shareholder of the corporation entitled to vote for the election of
directors at the meeting who timely complies with the notice
procedures herein set forth. To be timely, a shareholder's notice
must be delivered to, or mailed to and received by, the secretary
of the corporation at the corporation's principal executive offices
not later than the December 31 immediately preceding the annual
meeting.
Section 3.16 Business Introduced by Shareholders at
Annual Meetings. Where business introduced by a shareholder is
not specified in the notice of annual meeting, then (in addition to
any other applicable requirements) for business to be properly
introduced by a shareholder at an annual meeting of shareholders,
the shareholder must have given timely notice thereof in writing to
the secretary of the corporation. To be timely, a shareholder's
notice must be delivered to, or mailed to and received by, the
secretary of the corporation in the same manner and subject to the
same time requirements provided in Section 3.15 of these Bylaws for
shareholder notice of nominations to the Board of Directors. A
shareholder's notice must set forth, as to each matter the
shareholder proposes to bring before the meeting, (a) a brief
description of the business desired to be brought before the
meeting and the reasons for conducting such business at the
meeting, (b) the name and record address of the shareholder
proposing such business, (c) the class, series and number of shares
of the corporation's stock which are beneficially owned by the
shareholder, and (d) any material interest of the shareholder in
such business.
ARTICLE IV
DIRECTORS
Section 4.1 Powers. All corporate powers must be exercised
by and under the authority, and the business and affairs of the
corporation must be managed under the direction, of the Board of
Directors, subject to any limitations set forth in the Restated
Articles of Incorporation or any shareholder agreement authorized
by the MBCA. (Mont. Code Ann. Sections 35-1-416(2), 35-1-820).
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Section 4.2 Fixed-Size Board; Qualifications. The number of
directors presently authorized is three (3). The number of
directors may be fixed or changed from time to time by the Board of
Directors or the shareholders; provided that the Board may not
increase or decrease by more than thirty (30) percent the number of
directors last approved by the shareholders. After shares are
issued, only the shareholders may change from a fixed size Board to
a variable-range size Board or change the range for the size of the
Board. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent
director. A director need not be a resident of the state of
Montana or a shareholder of the corporation unless so required by
the Restated Articles of Incorporation. If for any cause the
directors shall not have been elected at an annual meeting, they
may be elected as soon thereafter as convenient at a special
meeting of the shareholders called for that purpose in the manner
provided by law or in these Bylaws. (Mont. Code Ann. Sections 35-
1-418, 35-1-419 and 35-1-421(3)).
Section 4.3 Term. The terms of the initial directors shall
expire at the first shareholders meeting at which directors are
elected. Directors are elected at the first annual meeting of
shareholders and at each annual meeting thereafter. Each director
shall serve until the next annual meeting of shareholders and
thereafter, despite the expiration of his term, until his successor
is duly elected and qualifies, or until there is a decrease in the
number of directors, or until his earlier death, resignation or
removal. (Mont. Code Ann. Sections 35-1-419, 35-1-421).
Section 4.4 Resignation. A director may resign at any time
by delivering written notice to the Board of Directors, its
chairman, or the corporation. A resignation is effective when the
notice is delivered unless the notice specifies a later effective
date, in which event the resignation shall become effective at such
later time. Unless specified in such notice, the acceptance of any
such resignation shall not be necessary to make it effective.
(Mont. Code Ann. Section 35-1-423).
Section 4.5 Removal. The shareholders may remove one (1)
or more directors with or without cause unless the Articles of
Incorporation provide that directors may be removed only for cause.
If cumulative voting is authorized, a director may not be removed
if the votes cast against the director's removal would be
sufficient to elect him if cumulatively voted at an election of the
entire board of directors or, if there are classes of directors, at
an election of the class of directors of which the director is a
part. If cumulative voting is not authorized, a director or the
entire Board of Directors may be removed only by a vote of the
holders of two-thirds of the shares entitled to vote at an election
of directors unless otherwise provided by the Restated Articles of
Incorporation. A director may be removed by the shareholders only
at a meeting called for the purpose of removing him; and the
meeting notice must state that the purposes, or one of the
purposes, of the meeting is removal of the director. (Mont. Code
Ann. Section 35-1-424(1), (3), (4)).
Section 4.6 Newly Created Directorships and Vacancies.
Unless the Articles of Incorporation provide otherwise, newly
created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause
may be filled by the affirmative vote of a majority of the
remaining directors then in office even if they constitute fewer
than a quorum of the authorized Board of Directors, or may be
filled by the shareholders. A director elected to fill
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a vacancy shall be elected for the unexpired term of his
predecessor in office. (Mont. Code Ann. Sections 35-1-421(4), 35-
1-426(1)).
Section 4.7 Meetings.
(1) Annual Meetings. The annual meeting of the Board of
Directors shall be held immediately after the annual meeting of
shareholders and at the place where such meeting is held. No
notice of an annual meeting of the Board of Directors shall be
necessary; and such meeting shall be held for the purpose of
electing officers and transacting such other business as may
lawfully come before it.
(2) Place of Meetings. Regular and special meetings of the
Board of Directors, or of any committee designated by the Board,
may be held at any place within or without the state of Montana.
(Mont. Code Ann. Section 35-1-431(1)).
(3) Telephone Meetings. Unless the Restated Articles of
Incorporation provide otherwise, the Board of Directors may permit
any or all directors to participate in a regular or special meeting
by, or conduct the meeting through the use of, any means of
communication by which all directors participating may
simultaneously hear each other during the meeting. A director
participating in a meeting by this means is considered to be
present in person at the meeting. (Mont. Code Ann. Section 35-1-
431(2)).
(4) Notice of Meetings. Notice of the date, time and place
of any regular or special meeting of the Board of Directors shall
be delivered at least two (2) days prior to the meeting; provided
that the Board of Directors may provide, by resolution, the date,
time and place, either within or without the state of Montana, for
the holding of regular meetings without notice other than such
resolution. Neither the business to be transacted at, nor the
purpose or purposes of, any regular or special meeting of the Board
of Directors need be specified in the notice or waiver of notice of
such meeting. (Mont. Code Ann. Section 35-1-433).
(5) Waiver of Notice. A director may waive any notice
required by the MBCA, the Restated Articles of Incorporation or
these Bylaws at any time before or after the date and time stated
in the notice. Except as otherwise provided below in this Section
4.7(5), such waiver must be in a writing signed by the director and
filed with the minutes or corporate records. The attendance of a
director at or participation in a meeting shall constitute a waiver
of notice of such meeting unless the director, at the beginning of
the meeting, or promptly upon his arrival, objects to holding the
meeting or transacting any business at the meeting and does not
vote for or assent to any action taken at the meeting. (Mont. Code
Ann. Section 35-1-434).
Section 4.8 Quorum and Voting.
(1) Quorum. Unless the Restated Articles of Incorporation or
these Bylaws require a greater number or unless otherwise
specifically provided by the MBCA, a quorum of the Board of
Directors consists of (a) a majority of the fixed number of
directors if the corporation has a fixed board size or (b) a
majority of the number of directors prescribed, or if no number is
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prescribed the number in office immediately before the meeting
begins, if the corporation has a variable-range size board. (Mont.
Code Ann. Section 35-1-435(1)).
(2) Majority Vote. If a quorum is present when a vote is
taken, the affirmative vote of the majority of the directors
present shall be the act of the Board of Directors, unless the
Restated Articles of Incorporation or these Bylaws require the vote
of a greater number of directors. (Mont. Code Ann. Section 35-1-
435(3)).
(3) Deemed Assent. A director of the corporation who is
present at a meeting of the Board of Directors (or any committee
thereof) at which action on any corporate matter is taken is deemed
to have assented to the action taken unless (a) he objects at the
beginning of the meeting, or promptly upon his arrival, to holding
it or transacting business at the meeting, (b) his dissent or
abstention from the action taken is entered in the minutes of the
meeting, or (c) he delivers written notice of his dissent or
abstention to the presiding officer of the meeting before its
adjournment or to the corporation immediately after the adjournment
of the meeting. Such right to dissent is not available to a
director who voted in favor of the action taken. (Mont. Code Ann.
Section 35-1-435(4), (5)).
Section 4.9 Action Without a Meeting. Unless otherwise
provided by the Restated Articles of Incorporation, any action
required or permitted by the MBCA to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without
a meeting if the action is taken by all members of the Board or of
the committee, as the case may be. The action must be evidenced by
one or more written consents describing the action taken, signed by
each member of the Board of Directors or of the committee, as the
case may be, and included in the minutes or filed with the
corporate records reflecting the action taken. Action taken under
this Section is effective when the last director signed the
consent, unless the consent specifies a different effective date.
A consent signed under this Section has the effect of a meeting
vote and may be described as such in any document. (Mont. Code
Ann. Section 35-1-432).
Section 4.10 Fees and Compensation. Unless the Restated
Articles of Incorporation provide otherwise, the Board of Directors
may fix the compensation of directors. Such compensation may
include a fixed fee or salary payable in cash or the corporation's
stock or any combination thereof, with or without expenses of
attendance, for serving on the Board of Directors and attendance at
each meeting of the Board of Directors and at each meeting of any
committee of the Board of Directors. Nothing herein contained
shall be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, consultant,
employee, or otherwise and receiving compensation therefor. (Mont.
Code Ann. Section 35-1-427).
Section 4.11 General Standards for Directors. A director
shall discharge his duties as director, including his duties as a
member of any committee of the Board of Directors on which he may
serve, in good faith, with the care an ordinarily prudent person in
a similar position would exercise under similar circumstances, and
in a manner he reasonably believes to be in the best interests of
the corporation. In discharging his duties, a director shall be
entitled to rely on information, opinions, reports or statements,
including financial statements and other financial data, if
prepared or presented by:
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(a) One (1) or more officers or employees of the
corporation whom the director reasonably believes to be reliable
and competent in the matters presented;
(b) Attorneys, public accountants or other persons as to
matters the director reasonably believes are within the person's
professional or expert competence; or
(c) A committee of the Board of which he is not a member
if the director reasonably believes the committee merits
confidence.
A director is not acting in good faith if he has knowledge
concerning the matter in question that makes such reliance
otherwise permitted by this Section unwarranted. (Mont. Code Ann.
Section 35-1-418).
Section 4.12 Committees. (Mont. Code Ann. Section35-1-439).
(1) Unless the Restated Articles of Incorporation provide
otherwise, the Board of Directors may create one or more committees
and appoint members of the Board of Directors to serve on them.
Each committee must have two or more members, each of whom shall
serve at the pleasure of the Board of Directors.
(2) The creation of a committee and appointment of members to
it must be approved by the greater of:
(a) A majority of all the directors in office when the
action is taken; or
(b) The number of directors required by the Restated
Articles of Incorporation or Section 4.8(2) of these Bylaws to take
action.
(3) Sections 4.7 through 4.9 of these Bylaws, which govern
meetings, notice and waiver of notice, action without meetings, and
quorum and voting requirements of the Board of Directors, apply to
committees and their members as well.
(4) To the extent specified by the Board of Directors or in
the Restated Articles of Incorporation or these Bylaws, each
committee may exercise the authority of the Board of Directors
under Section 4.1 of these Bylaws.
(5) A committee may not, however:
(a) Authorize distributions;
(b) Approve or propose to shareholders action that the
MBCA requires be approved by shareholders;
(c) Fill vacancies on the Board of Directors or on any
of its committees;
(d) Amend the Restated Articles of Incorporation;
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(e) Adopt, amend, or repeal the Bylaws;
(f) Approve a plan of merger not requiring shareholder
approval;
(g) Authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the Board of
Directors; or
(h) Authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and
relative rights, preferences, and limitations of a class or series
of shares, except that the Board of Directors may authorize a
committee, or a senior executive officer of the corporation, to do
so within limits specifically prescribed by the Board of Directors.
(6) The creation of, delegation of authority to, or action by
a committee does not alone constitute compliance of a director with
the standards of conduct described in the MBCA or Section 4.11 of
these Bylaws.
ARTICLE V
DIRECTOR CONFLICTS OF INTEREST
Section 5.1 Definitions. (Mont. Code Ann. Section 35-1-
461). In Sections 5.1 through 5.4 of these Bylaws:
(1) "Conflicting interest" with respect to a corporation
means the interest a director of the corporation has respecting a
transaction effected or proposed to be effected by the corporation
or by a subsidiary of the corporation or any other entity in which
the corporation has a controlling interest if:
(a) Regardless of whether the transaction is brought
before the Board of Directors of the corporation for action, the
director knows at the time of commitment that he or a related
person is a party to the transaction or has a beneficial financial
interest in or is so closely linked to the transaction and the
transaction is of such financial significance to the director or a
related person that the interest would reasonably be expected to
exert an influence on the director's judgment the director were
called upon to vote on the action; or
(b) The transaction is brought, or is of such character
and significance to the corporation that it would in the normal
course be brought, before the Board of Directors of the corporation
for action and the director knows at the time of commitment that
any of the following persons is either a party to the transaction
or has a beneficial financial interest in or is so closely linked
to the transaction and the transaction is of such financial
significance to the person that the interest would reasonably be
expected to exert an influence on the director's judgment if the
director were called upon to vote on the transaction:
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(i) An entity, other than the corporation, of
which the director is a director, general partner, agent, or
employee;
(ii) A person that controls one or more of the
entities specified in subclause (i) of this subsection or an entity
that is controlled by, or is under common control with, one or more
of the entities specified in subclause (i) of this subsection; or
(iii) An individual who is a principal,
general partner, or employer of the director.
(2) "Director's conflicting interest transaction", with
respect to a corporation, means a transaction effected or proposed
to be effected by the corporation or by a subsidiary of the
corporation or any other entity in which the corporation has a
controlling interest in which transaction a director of the
corporation has a conflicting interest.
(3) "Related person" means:
(a) The spouse or a parent or sibling of a spouse of the
director;
(b) A child, grandchild, sibling, parent or spouse of
any child, grandchild, sibling, or parent of the director;
(c) An individual having the same residence as the
director;
(d) A trust or estate of which an individual specified
in this subsection (3) is a substantial beneficiary; or
(e) A trust, estate, incompetent person, conservatee, or
minor for whom the director is a fiduciary.
(4) "Required disclosure" means disclosure by the director,
who has a conflicting interest, of:
(a) The existence and nature of his conflicting
interest; and
(b) All facts known to the director respecting the
subject matter of the transaction that an ordinarily prudent person
would reasonably believe to be material to a judgment about whether
or not to proceed with the transaction.
(5) "Time of commitment" respecting a transaction means the
time when the transaction is consummated or, if made pursuant to
contract, the time when the corporation or its subsidiary or the
entity in which it has a controlling interest becomes contractually
obligated so that its unilateral withdrawal from the transaction
would entail significant loss, liability, or other damage.
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Section 5.2 Permissible Transactions. The corporation may
enter into a director's conflict of interest transaction if either
directors' action or shareholders' action respecting the
transaction is taken at any time in compliance with Sections 5.3 or
5.4 of these Bylaws, respectively. (Mont. Code Ann. Section 35-1-
462).
Section 5.3 Directors' Action. (Mont. Code Ann. Section
35-1-463).
(1) For purposes of Section 5.2 of these Bylaws, directors'
action respecting a transaction is effective if the transaction
received the affirmative vote of a majority, but no fewer than two
(2), of those qualified directors on the Board of Directors or on
an empowered committee of the Board who voted on the transaction
after either required disclosure to them, to the extent the
information was not known by them, or compliance with subsection
(2) of this Section. Action by a committee is so effective only if
all its members are qualified directors or its members are either
all the qualified directors on the Board or are appointed by the
affirmative vote of a majority of the qualified directors on the
Board.
(2) If a director has a conflicting interest respecting a
transaction but neither the director nor a related person of the
director specified in Section 5.1(3)(a) of these Bylaws is a party
to the transaction, and if the director has a duty under law or
professional canon or a duty of confidentiality to another person
respecting information relating to the transaction such that the
director may not make the disclosure described in Section 5.1(4)(b)
of these Bylaws then disclosure is sufficient for purposes of
subsection (1) of this Section if the director:
(a) Discloses to the directors voting on the transaction
the existence and nature of the conflicting interest and informs
them of the character and limitations imposed by that duty before
their vote on the transaction; and
(b) Plays no part, directly or indirectly, in their
deliberations or vote.
(2) A majority, but no fewer than two (2), of all the
qualified directors on the Board of Directors or on the committee
constitutes a quorum for purposes of action that complies with this
Section. Directors' action that otherwise complies with this
Section is not affected by the presence or vote of a director who
is not a qualified director.
(3) For purposes of this Section, "qualified director" means,
with respect to a director's conflicting interest transaction, any
director who does not have either a conflicting interest respecting
the transaction or a familial, financial, professional, or
employment relationship with a second director who does have a
conflicting interest respecting the transaction, which relationship
would, in the circumstances, reasonably be expected to exert an
influence on the first director's judgment when voting on the
transaction.
Section 5.4 Shareholders' Action. (Mont. Code Ann.
Section 35-1-464).
(1) For purposes of Section 5.2 of these Bylaws,
shareholders' action respecting a transaction is effective if a
majority of the votes entitled to be cast by the holders of all
qualified shares were cast in favor of the transaction after:
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(a) Notice to shareholders describing the director's
conflicting interest transaction;
(b) Provision of the information referred to in
subsection (3) of this Section; and
(c) Required disclosure to the shareholders who voted on
the transaction, to the extent the information was not known by
them.
(2) A majority of the votes entitled to be cast by the
holders of all qualified shares constitutes a quorum for purposes
of action that complies with this Section. Subject to the
provisions of subsection (3) of this Section, shareholders' action
that otherwise complies with this Section is not affected by the
presence of shareholders, or the voting, of shares that are not
qualified shares.
(3) For purposes of compliance with subsection (1) of this
Section, a director who has a conflicting interest respecting the
transaction shall, before the shareholders' vote, inform the
secretary or other office or agent of the corporation authorized to
tabulate votes of the number of all shares and the identity of
persons holding or controlling the vote of all shares that the
director knows are beneficially owned by or the voting of which is
controlled by the director or by a related person of the director,
or both.
(4) For purposes of this Section, "qualified shares" means
any shares entitled to be voted with respect to the director's
conflicting interest transaction except shares that, to the
knowledge, before the vote, of the secretary, or other officer or
agent of the corporation authorized to tabulate votes, are
beneficially owned or the voting of which is controlled by a
director who has a conflicting interest respecting the transaction
or by a related person of the director, or both.
ARTICLE VI
OFFICERS
Section 6.1 Officers Designated. The officers of the
corporation consist of a president, a secretary and a treasurer,
each of whom shall be appointed by the Board of Directors. The
Board of Directors or the president may appoint such other officers
or assistant officers as may be deemed necessary or desirable. The
same individual may simultaneously hold more than one office.
(Mont. Code Ann. Section 35-1-441).
Section 6.2 Tenure and Duties of Officers.
(1) Term of Office. Each officer shall hold office at the
pleasure of the Board of Directors or until death, resignation or
removal. If the office of any officer becomes vacant for any
reason, the vacancy may be filled by the Board of Directors.
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(2) The President. The president shall be the principal
executive officer of the corporation and, subject to the control of
the Board of Directors, shall in general supervise and control all
of the business and affairs of the corporation. If so authorized
by the Board of Directors, he may appoint such other officers or
assistant officers as he deems appropriate to the conduct of the
corporation's business. He shall, when present, preside at all
meetings of the shareholders and of the Board of Directors. He may
sign, with the secretary or any other proper officer of the
corporation thereunto authorized by the Board of Directors,
certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors
has authorized to be executed, except in cases where the signing
and execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or
executed; and in general the president shall perform all duties
commonly incident to the office of president and such other duties
as may be prescribed by the Board of Directors from time to time.
(Mont. Code Ann. Section 35-1-441(2)).
(3) The Vice President. In the absence of the president or
in the event of his removal, resignation, death, or inability or
refusal to act, the vice president (or in the event there is more
than one vice president, the vice presidents in the order
designated at the time of their election, or in the absence of any
designation, then in the order of their election) shall perform the
duties of the president and, when so acting, shall have all the
powers of and be subject to all the restrictions upon the
president. Any vice president may sign, with the secretary or an
assistant secretary, certificates for shares of the corporation;
and the vice president shall perform other duties commonly incident
to the office of vice president and such other duties as from time
to time may be assigned to him by the president or by the Board of
Directors.
(4) The Secretary. The secretary shall: (i) attend all
meetings and keep the minutes of the meetings and other proceedings
of the shareholders and of the Board of Directors in one or more
books provided for that purpose; (ii) see that all notices are duly
given in accordance with the provisions of these Bylaws or as
required by law; (iii) be custodian of and responsible for
authentication of the corporate records, and be custodian of the
seal of the corporation and see that seal of the corporation is
affixed to all documents the execution of which on behalf of the
corporation under its seal is duly authorized; (iv) keep a register
of the post office address of each shareholder which shall be
furnished to the secretary by such shareholder; (v) sign, with the
president, or a vice president, certificates for shares of the
corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; (vi) have general charge of
the stock transfer books of the corporation; and (vii) in general
perform all duties commonly incident to the office of secretary and
such other duties as from time to time may be assigned to him by
the president or by the Board of Directors. (Mont. Code Ann.
Section 35-1-441(3)).
(5) The Treasurer. The treasurer shall: (i) have charge and
custody of and be responsible for all funds and securities of the
corporation; (ii) receive and give receipts for monies due and
payable to the corporation from any source whatsoever, and deposit
all such monies in the name of the corporation in such banks, trust
companies or other depositories as shall be selected in accordance
with the provisions of Article VIII of these Bylaws; and (iii) in
general perform all of the duties commonly incident to the office
of treasurer and such other duties as from time to time may be
assigned to him by the president or by the Board of Directors.
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If required by the Board of Directors, the treasurer shall give a
bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the Board of Directors shall determine.
(6) Assistant Secretaries and Assistant Treasurers. The
assistant secretaries, when authorized by the Board of Directors,
may sign with the president or a vice president certificates for
shares of the corporation the issuance of which shall have been
authorized by a resolution of the Board of Directors. 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. The assistant secretaries and treasurers, in general,
shall perform such duties as shall be assigned to them by the
secretary or the treasurer, or by the president or the Board of
Directors.
Section 6.3 Resignations. Any officer may resign at any
time by delivering written notice to the corporation. A
resignation is effective when the notice is delivered unless the
notice specifies a later effective date, in which event the
resignation shall become effective at such later time. Unless
otherwise specified in such notice, the acceptance of any such
resignation shall not be necessary to make it effective. (Mont.
Code Ann. Section 35-1-444(1)).
Section 6.4 Removal. The Board of Directors may remove any
officer at any time without or without cause. (Mont. Code Ann.
Section 35-1-444(2)).
Section 6.5 Contract Rights. An officer's removal does
not affect the officer's contract rights, if any, with the
corporation. An officer's resignation does not affect the
corporation's contract rights, if any, with the officer.
Section 6.6 Compensation. The compensation of the officers
shall be fixed from time to time by the Board of Directors. No
officer shall be prevented from receiving such compensation by
reason of the fact that such officer is also a director of the
corporation.
Section 6.7 Standards of Conduct. (Mont. Code Ann.
Section 35-1-443).
(1) An officer with discretionary authority shall discharge
his duties under that authority:
(a) In good faith;
(b) With the care an ordinarily prudent person in a
similar position would exercise under similar circumstances; and
(c) In a manner the officer reasonably believes to be in
the best interests of the corporation.
(2) In discharging his duties, an officer is entitled to rely
on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or
presented by:
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(a) One or more officers or employees of the corporation
whom the officer reasonably believes to be reliable and competent
in the matters presented; or
(b) Attorneys, public accountants, or other persons as
to matters the officer reasonably believes are within the person's
professional or expert competence.
(3) An officer is not acting in good faith if he has
knowledge concerning the matter in question that makes reliance
otherwise permitted by subsection (2) of this Section unwarranted.
ARTICLE VII
SHARES OF STOCK AND OTHER SECURITIES
Section 7.1 Form and Execution of Certificates.
Certificates representing shares of the corporation shall be in
such form as shall be determined by the Board of Directors. At a
minimum, each share certificate must state on its face: (a) the
name of the corporation and that it is organized under the law of
the state of Montana; (b) the name of the person to whom the
certificate is issued; and (c) the number and class of shares and
the designation of the series, if any, that the certificate
represents. If the corporation is authorized to issue different
classes of shares or different series within a class, the
designations, relative rights, preferences, and limitations
applicable to each class, the variations in rights, preferences,
and limitations determined for each series, and the authority of
the Board of Directors to determine variations for future series,
must be summarized on the front or back of each certificate.
Alternatively, each certificate may state conspicuously on its
front or back that the corporation will furnish the shareholder
this information on request in writing and without charge. Share
certificates shall be signed by the president or a vice president
and by the secretary or an assistant secretary and may be sealed
with the corporate seal or a facsimile thereof. The signatures of
any such officer upon a share certificate may be a facsimile. If
the person who signed, either manually or in facsimile, a share
certificate no longer holds office when the certificate is issued,
the certificate is nevertheless valid. (Mont. Code Ann. Section
35-1-626).
Section 7.2 Lost Certificates. The corporation may issue
a new share certificate in place of any certificate theretofore
issued by the corporation alleged to have been lost, stolen,
destroyed or mutilated; and the corporation may require the owner
of such lost, stolen destroyed or mutilated certificate, or his
legal representative, to give the corporation a bond sufficient to
indemnify it against any claim that may be made against the
corporation on account of the alleged loss, theft, destruction or
mutilation of any such certificate or the issuance of such new
certificate.
Section 7.3 Transfers. Each share certificate shall be
consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer shall be
cancelled; and, except as provided in Section 7.2 of these Bylaws
or as authorized by the Board of Directors, no new certificate
shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled. Transfer of
record of shares of stock of the
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corporation shall be made only on the stock transfer books of the
corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the secretary of the
corporation, and (except as provided in Section 7.2 of these
Bylaws) on surrender for cancellation of a properly endorsed
certificate or certificates for a like number of shares.
Section 7.4 Fixing Record Dates. In order that the
corporation may determine the shareholders entitled to notice of or
to vote at any meeting of shareholders or any adjournment thereof,
or to express consent to corporate action in writing without a
meeting, or to receive payment of any dividend or other
distribution or allotment of any rights or to exercise any rights
in respect of any change, conversion or exchange of stock, or to
demand a special meeting, or to take any other action, the Board of
Directors may fix a future date as a record date. A record date
may not be more than seventy (70) days before the meeting or action
requiring a determination of shareholders. If no record date is
fixed by the Board of Directors: (a) the record date for
determining shareholders entitled to notice of and to vote at an
annual or special meeting of shareholders is the day before the
first notice is delivered to shareholders; (b) the record date for
determining shareholders entitled to express consent to corporate
action in writing without a meeting shall be the day on which the
first shareholder signs the consent; (c) the record date for
determining shareholders entitled to demand a special meeting is
the date the first shareholder signs the demand; (d) the record
date for determining shareholders entitled to a distribution, other
than one involving a repurchase or reacquisition of shares, is the
date of Board of Directors authorizes the distribution; and (e) the
record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination
of shareholders entitled to notice of or to vote at a shareholders'
meeting is effective for any adjournment of the meeting unless the
Board of Directors fixes a new record date, which it must do if the
meeting is adjourned to a date more than one hundred twenty (120)
days after the date fixed for the original meeting. (Mont. Code
Ann. Sections 35-1-712(2); 35-1-517(2); 35-1-519(2); 35-1-520(4);
35-1-522).
Section 7.5 Issuance, Transfer and Registration of
Shares. (Mont. Code Ann. Section 35-1-623(2), (3), (5)).
(1) The Board of Directors may authorize shares to be issued
for consideration consisting of any tangible or intangible property
or benefit to the corporation, including cash, promissory notes,
services performed, contracts for services to be performed, or
other securities of the corporation.
(2) Before the corporation issues shares, the Board of
Directors must determine that the consideration received or to be
received for shares to be issued is adequate.
(3) The corporation may place in escrow shares issued for a
contract for future services or benefits or a promissory note, or
the corporation may also make other arrangements to restrict the
transfer of the shares and may credit distributions in respect of
the shares against their purchase price until the services are
performed, the note is paid, or the benefits received.
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If the services are not performed, the note is not paid, or the
benefits are not received, the shares escrowed or restricted and
the distributions credited may be canceled in whole or in part.
(4) The Board of Directors may make such rules and
regulations, not inconsistent with law or with these Bylaws, as it
may deem advisable concerning the issuance, transfer and
registration of certificates for shares of stock of the
corporation. The Board of Directors may appoint a transfer agent
or registrar of transfers, or both, and may require all
certificates for shares of the corporation to bear the signature of
either or both.
Section 7.6 Registered Shareholders. The corporation
shall be entitled to recognize the exclusive right of a person duly
registered in its books as the owner of its shares to receive
dividends and to vote as such owner, to receive notice, and for all
other purposes incident to ownership of such shares, and 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 Montana law.
Section 7.7 Execution of Other Securities. All bonds,
debentures and other corporate securities of the corporation, other
than share certificates, may be signed by the president or any vice
president, or such other person as may be authorized by the Board
of Directors; and the corporate seal may be impressed thereon or a
facsimile of such seal imprinted thereon and attested by the
signature of the secretary or an assistant secretary; provided,
however, that where any such bond, debenture or other corporate
security shall be authenticated by the manual signature of a
trustee under an indenture pursuant to which such bond, debenture
or other corporate security shall be issued, the signatures of the
persons signing and attesting the corporate seal on such bond,
debenture or other corporate security may be the imprint facsimile
of the signature of such persons. Interest coupons appertaining to
any such bond, debenture or other corporate security, authenticated
by a trustee as aforesaid, shall be signed by the treasurer or an
assistant treasurer of the corporation or such other person as may
be authorized by the Board of Directors, or be imprinted thereon
the facsimile signature of such person. In case any officer who
shall have signed or attested any bond, debenture or other
corporate security, or whose facsimile signature shall appear
thereon or on any such interest coupon, shall have ceased to be
such officer before the bond, debenture or other corporate security
so signed or attested shall have been delivered, such bond,
debenture or other corporate security nevertheless may be adopted
by the corporation and issued and delivered as though the person
who signed the same or whose facsimile signature shall have been
used thereon had not ceased to be such officer of the corporation.
ARTICLE VIII
EXECUTION OF CORPORATE INSTRUMENTS AND
VOTING OF SECURITIES OWNED BY THE CORPORATION
Section 8.1 Execution of Corporate Instruments. The
Board of Directors may, in its discretion, determine the method and
designate the signatory officer or officers, or other person or
persons, to execute on behalf
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of the corporation any corporate instrument or document, or to sign
the corporation's name on behalf of the corporation, or to enter
into contracts on behalf of the corporation, except where otherwise
provided by law or these Bylaws; and such execution or signature
shall be binding upon the corporation. Authorization granted to
any person hereunder may be general or confined to specific
instances.
Unless otherwise specifically determined by the Board of
Directors or otherwise required by law, promissory notes, deeds of
trust, mortgages and other evidences of indebtedness of the
corporation, and certificates of shares of stock owned by the
corporation shall be executed, signed or endorsed by the president
or any vice president and by the secretary or treasurer or any
assistant secretary or assistant treasurer. All other instruments
and documents requiring the corporate signature may be executed as
aforesaid or in such manner as may be directed by the Board of
Directors.
Section 8.2 Loans. No loan shall be contracted on behalf
of the corporation and no evidence of indebtedness shall be issued
in its name unless authorized by resolution of the Board of
Directors. Such authorization may be general or confined to
specific instances.
Section 8.3 Deposits and Checks. 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, securities brokerage firms or other depositories as the
Board of Directors may select. All checks and drafts drawn on
banks or other depositories on funds to the credit of the
corporation or in special accounts of the corporation shall be
signed by such person or persons as the Board of Directors shall
authorize to do so. Such authorization may be general or confined
to specific instances.
Section 8.4 Voting of Securities Owned by the
Corporation. All stock and other securities of other corporations
owned or held by the corporation for itself, or for other parties
in any capacity, shall be voted, and all proxies with respect
thereto shall be executed, by the person authorized to do so by
resolution of the Board of Directors, or, in the absence of such
authorization, by the president or any vice president.
ARTICLE IX
DIVIDENDS
Section 9.1 Declaration and Payment of Dividends.
Dividends upon the capital stock of the corporation, subject to
restriction by the Restated Articles of Incorporation and the
limitations in Mont. Code Ann. Section 35-1-712(3), may be declared
by the Board of Directors pursuant to law at any regular or special
meeting. Dividends may be paid by the corporation in cash,
property or, subject to restriction by the Restated Articles of
Incorporation and the MBCA, in shares of its stock. (Mont. Code
Ann. Sections 35-1-624(1),(2), 35-1-712(1),(3)).
Section 9.2 Dividend 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 may from time to time, in its absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property
of the corporation, or for such other purpose as the Board of
Directors shall think
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conducive to the interests of the corporation; and the Board of
Directors may modify or abolish any such reserve in the manner in
which it was created.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 10.1 Scope of Indemnification. The corporation
shall indemnify and advance funds to or for the benefit of the
directors and officers of the corporation to the fullest extent
permitted by the MBCA, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader
indemnification rights than the MBCA permitted the corporation to
provide prior to such amendment).
Section 10.2 Mandatory Indemnification of Directors. The
corporation shall indemnify a director who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to
which the director was a party because he is or was a director of
the corporation, against reasonable expenses incurred by him in
connection with the proceeding. (Mont. Code Ann. Section 35-1-453).
Section 10.3 Further Indemnification of Directors.
(Mont. Code Ann. Section 35-1-452).
(1) Except as otherwise provided in this Section 10.3, an
individual made a party to a proceeding because he is or was a
director may be indemnified against liability incurred in the
proceeding if:
(a) He conducted himself in good faith;
(b) He reasonably believed:
(i) In the case of conduct in his official
capacity with the corporation, that his conduct was in the
corporation's best interests; and
(ii) In all other cases, that his conduct was
at least not opposed to the corporation's best interests; and
(c) In the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
(2) A director's conduct with respect to an employee benefit
plan for a purpose the director reasonably believed to be in the
interests of the participants in and beneficiaries of the plan is
conduct that satisfies the requirement of subsection (1)(b)(ii) of
this Section.
(3) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, a determination that the director did
not meet the standard of conduct described in this Section.
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(4) The corporation may not indemnify a director under this
section:
(a) In connection with a proceeding by or in the right
of the corporation in which the director was adjudged liable to the
corporation; or
(b) In connection with any other proceeding charging
improper personal benefit to the director, whether or not involving
action in the director's official capacity, in which the director
was adjudged liable on the basis that personal benefit was
improperly received by the director.
(5) Indemnification permitted under this Section in
connection with a proceeding by or in the right of the corporation
is limited to reasonable expenses incurred in connection with the
proceeding.
Section 10.4 Advance for Expenses. (Mont. Code Ann.
Sections 35-1-454).
(1) The corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(a) The director furnishes the corporation a written
affirmation of the director's good faith belief that the director
has met the standard of conduct described in Section 10.3(1) of
these Bylaws;
(b) The director furnishes the corporation a written
undertaking, executed personally or on the director's behalf, to
repay the advance if it is ultimately determined that the director
did not meet the standard of conduct described in Section 10.3(1)
of these Bylaws; and
(c) A determination is made that the facts then known to
those making the determination would not preclude indemnification
under the MBCA.
(2) The undertaking required by subsection (1)(b) of this
Section must be an unlimited general obligation of the director but
need not be secured and may be accepted without reference to
financial ability to make repayment.
Section 10.5 Determination of Indemnification. (Mont.
Code Ann. Section 35-1-456).
(1) The corporation may not indemnify a director under
Section 10.3 of these Bylaws unless a determination has been made
that indemnification of the director is permissible in the
circumstances because the director has met the standard of conduct
set forth in Section 10.3(1) of these Bylaws.
(2) The determination must be made:
(a) By the Board of Directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding;
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(b) If a quorum cannot be obtained under subsection
(2)(a) of this Section, by majority vote of a committee designated
by the Board of Directors, in which designated directors who are
parties may participate, consisting solely of two or more directors
not at the time parties to the proceeding;
(c) By special legal counsel:
(i) Selected by the Board of Directors or its
committee in the manner prescribed in subsection (2)(a) or (2)(b)
of this Section; or
(ii) If a quorum of the Board of Directors
cannot be obtained under subsection (2)(a) of this Section and a
committee cannot be designated under subsection (2)(b) of this
Section, selected by majority vote of the full Board of Directors
in which selected directors who are parties may participate; or
(d) By the shareholders, but shares owned by or voted
under the control of directors who are at the time parties to the
proceeding may not be voted on the determination.
Section 10.6 Indemnification of Officers. Unless the
corporation's Restated Articles of Incorporation provide otherwise:
(1) An officer of the corporation who is not a director is
entitled to mandatory indemnification under Section 10.2 of these
Bylaws and is entitled to apply for court-ordered indemnification
under Mont. Code Ann. Section 35-1-455 to the same extent as a
director;
(2) The corporation may indemnify and advance expenses under
the MBCA to an officer, employee, or agent of the corporation who
is not a director to the same extent as to a director; and
(3) The corporation may also indemnify and advance expenses
to an officer, employee, or agent who is not a director to the
extent, consistent with public policy, that may be provided by its
Restated Articles of Incorporation, these Bylaws, general or
specific action of its Board of Directors, or contract. (Mont.
Code Ann. Section 35-1-457).
Section 10.7 Insurance. The corporation may purchase and
maintain insurance on behalf of an individual who is or was a
director, officer, employee, or agent of the corporation or who,
while a director, officer, employee, or agent of the corporation,
is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted
against or incurred by him in that capacity or arising from his
status as a director, officer, employee, or agent, whether or not
the corporation would have power to indemnify him against the same
liability under Section 10.2 or Section 10.3 of these Bylaws.
(Mont. Code Ann. Section 35-1-458).
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Section 10.8 Definitions. (Mont. Code Ann. Section 35-1-
451). In Sections 10.1 through 10.8 of these Bylaws:
(1) "Corporation" includes any domestic or foreign
predecessor entity of a corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of the transaction.
(2)(a) "Director" means an individual who is or was a
director of the corporation or an individual who, while a director
of the corporation, is or was serving at the corporation's request
as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee benefit plan at
the corporation's request if the director's duties to the
corporation include duties or services by him to the plan or to
participants in or beneficiaries of the plan.
(b) Director includes, unless the context requires
otherwise, the estate or personal representative of a director.
(3) "Expenses" include attorney fees.
(4) "Liability" means the obligation to pay a judgment,
settlement, penalty, or fine, including an excise tax assessed with
respect to an employee benefit plan, or to pay reasonable expenses
incurred with respect to a proceeding.
(5)(a) "Official capacity" means:
(i) When used with respect to a director, the
office of director in a corporation; or
(ii) When used with respect to an individual other than
a director, as contemplated in Section 10.6 of these Bylaws, the
office in a corporation held by the officer or the employment or
agency relationship undertaken by the employee or agent on behalf
of the corporation.
(b) Official capacity does not include service for any
other foreign or domestic corporation or any partnership, joint
venture, trust, employee benefit plan, or other enterprise.
(6) "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
(7) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
Section 10.9 Amendments. Any repeal or modification of this
Article X shall only be prospective and shall not affect the rights
under this Article X in effect at the time of the alleged
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occurrence of any action or omission to act that is the cause of
any proceeding against any director or officer.
Section 10.10 Saving Clause. If this Article X of these
Bylaws or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the corporation shall
nevertheless indemnify each director and may nevertheless indemnify
each officer to the full extent permitted by any applicable portion
of this Article X that shall not have been invalidated, or by any
other applicable law.
ARTICLE XI
NOTICES
Section 11.1 Methods of Notice.
(1) Any notice under the MBCA or these Bylaws must be in
writing unless oral notice is reasonable under circumstances.
(2) Notice may be communicated in person; by telephone,
telegraph, teletype, facsimile, or other form of wire or wireless
communication; or by mail or private carrier. If these forms of
personal notice are impracticable, notice may be communicated by a
newspaper of general circulation in the area where it is published
or by radio, television, or other form of public broadcast
communication.
(3) It shall not be necessary that the same method of giving
notice be employed in respect of all directors or shareholders.
One permissible method may be employed in respect of any one or
more directors or shareholders, and any other permissible method or
methods may be employed in respect of any other or others. (Mont.
Code Ann. Section 35-1-116(1), (2)).
Section 11.2 Notice to Corporation. Written notice to the
corporation may be addressed to its registered agent at its
registered office or to the corporation or its secretary at its
principal office shown in its most recent annual report filed with
the Montana Secretary of State. (Mont. Code Ann. Section 35-1-
116(4)).
Section 11.3 Effective Date of Notice. (Mont. Code Ann.
Section 35-1-116(3), (5), (6)).
(1) Written notice by the corporation to its shareholders, if
in a comprehensible form, is effective when mailed if it is mailed
postpaid and correctly addressed to the shareholder's address shown
in the corporation's current record of shareholders.
(2) Except as provided in subsection (1) of this Section,
written notice, if in a comprehensible form, is effective at the
earliest of the following:
(a) When received;
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(b) Five (5) days after its deposit in the United States
mail, as evidenced by the postmark, if mailed postpaid with correct
postage; or
(c) On the date shown on the return receipt, if sent by
certified mail, return receipt requested, and the receipt is signed
by or on behalf of the addressee.
(3) Oral notice is effective when communicated if
communicated in a comprehensible manner.
Section 11.4 Address Unknown. If no address of a
shareholder or director be known, notice may be sent to the office
of the corporation required to be maintained pursuant to Section
11.2 of these Bylaws.
Section 11.5 Affidavit of Mailing. An affidavit of
mailing, executed by a duly authorized and competent employee of
the corporation or its transfer agent appointed with respect to the
class of stock affected, specifying the name and address or the
names and addresses of the shareholder or shareholders, or director
or directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall be conclusive
evidence of the statements therein contained.
Section 11.6 Failure to Receive Notice. The period or
limitation of time within which any shareholder may exercise any
option or right, or enjoy any privilege or benefit, or be required
to act, or within which any director may exercise any power or
right, or enjoy any privilege, pursuant to any notice sent him in
the manner above provided, shall not be affected or extended in any
manner by the failure of such shareholder or such director to
receive such notice.
Section 11.7 Notice to Person with Whom Communication
is Unlawful. Whenever notice is required to be given, under any
provision of law or of the Restated Articles of Incorporation or
Bylaws of the corporation, to any person with whom communication is
unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice had
been duly given. In the event that the action taken by the
corporation is such as to require the filing of a certificate under
any provision of the MBCA, the certificate shall state, if such is
the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom
communication is unlawful.
ARTICLE XII
RECORDS AND REPORTS
Section 12.1 Corporate Records. (Mont. Code Ann. Section
35-1-1106).
(1) The corporation shall keep as permanent records minutes
of all meetings of its shareholders and Board of Directors, a
record of all actions taken by the shareholders or Board
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of Directors without a meeting, and a record of all actions taken
by a committee of the Board of Directors in place of the Board of
Directors on behalf of the corporation.
(2) The corporation shall maintain appropriate accounting
records.
(3) The corporation or its agent shall maintain a record of
its shareholders, in a form that permits preparation of a list of
the names and addresses of all shareholders, in alphabetical order
by class of shares showing the number and class of shares held by
each.
(4) The corporation shall maintain its records in written
form or in another form capable of conversion into written form
within a reasonable time.
(5) The corporation shall keep a copy of the following
records at its principal office or a location from which the
records may be recovered within two (2) business days:
(a) Its Articles or Restated Articles of Incorporation
and all amendments to them currently in effect;
(b) Its Bylaws or Restated Bylaws and all amendments to
them currently in effect;
(c) Resolutions adopted by its Board of Directors
creating one or more classes or series of shares and fixing their
relative rights, preferences, and limitations if shares issued
pursuant to those resolutions are outstanding;
(d) The minutes of all shareholders' meetings and
records of all action taken by shareholders without a meeting for
the past three (3) years;
(e) The financial statements available to shareholders
for the past three (3) years under Mont. Code Ann. Section 35-1-
1110;
(f) A list of the names and business addresses of its
current directors and officers; and
(g) Its most recent annual report delivered to the
Montana Secretary of State.
Section 12.2 Inspection of Records by Shareholders. In
addition to the rights of a shareholder under Section 3.12 of these
Bylaws:
(1) A shareholder of the corporation is entitled to inspect
and copy, during regular business hours at the corporation's
principal office, any of the records of the corporation described
in Section 12.1(5) of these Bylaws if the shareholder gives the
corporation written notice of the demand at least five (5) business
days before the date on which the shareholder wishes to inspect and
copy.
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(2) A shareholder of the corporation is entitled to inspect
and copy, during regular business hours at a reasonable location
specified by the corporation, any of the following records of the
corporation if the shareholder meets the requirements of subsection
(3) of this Section and gives the corporation written notice of the
demand at least five (5) days before the date on which the
shareholder wishes to inspect and copy:
(a) Excerpts from minutes of any meeting of the Board of
Directors, records of any action of a committee of the Board of
Directors while acting in place of the Board of Directors on behalf
of the corporation, minutes of any meeting of the shareholders, and
records of action taken by the shareholders or Board of Directors
without a meeting, to the extent not subject to inspection under
subsection (1) of this Section;
(b) Accounting records of the corporation; and
(c) The record of shareholders.
(3) A shareholder may inspect and copy the records described
in subsection (2) of this Section only if:
(a) The demand is made in good faith and for a proper
purpose;
(b) The shareholder describes with reasonable
particularity the purpose and the records the shareholder desires
to inspect;
(c) The records are directly connected with the
shareholder's purpose; and
(d) The shareholder has been a shareholder of record for
at least six (6) months preceding the demand or the shareholder is
a holder of record of at least five (5) percent of all the
outstanding shares of the corporation
(4) For purposes of this Section, "shareholder" includes a
beneficial owner whose shares are held in a voting trust or by a
nominee on the shareholder's behalf. (Mont. Code Ann. Section35-1-
1107).
Section 12.3 Scope of Inspection Right.
(1) A shareholder's agent or attorney has the same inspection
and copying rights as the shareholder the agent or attorney
represents.
(2) The right to copy records under Section 12.2 of these
Bylaws includes, if reasonable, the right to receive copies made by
photographic, xerographic, or other means.
(3) The corporation may impose a reasonable charge, covering
the costs of labor and material, for copies of documents provided
to the shareholders. The charge may not exceed the estimated cost
of production or reproduction of the records.
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(4) The corporation may comply with a shareholder's demand to
inspect the record of shareholders under Section 12.2(2)(c) of
these Bylaws by providing the shareholder with a list of
shareholders that was compiled no earlier than the date of the
shareholder's demand. (Mont. Code Ann. Section 35-1-1108).
Section 12.4 Financial Statements to Shareholders. Upon
the written request of any shareholder of the corporation, the
corporation shall mail to the shareholder its most recent financial
statements showing in reasonable detail its assets and liabilities
and the results of its operations. (Mont. Code Ann. Section 35-1-
1110).
Section 12.5 Other Reports to Shareholders.
(1) If the corporation indemnifies or advances expenses to a
director under the MBCA or Article X of these Bylaws in connection
with a proceeding by or in the right of the corporation, the
corporation shall report the indemnification or advance in writing
to the shareholders with or before the notice of the next
shareholders' meeting.
(2) If the corporation issues or authorizes the issuance of
shares for promissory notes or for promises to render services in
the future, the corporation shall report in writing to the
shareholders the number of shares authorized or issued and the
consideration received by the corporation with or before the notice
of the next shareholders' meeting. (Mont. Code Ann. Section 35-1-
1111).
Section 12.6 Annual Report to Secretary of State.
(1) The corporation shall deliver to the Secretary of State
for filing an annual report that sets forth:
(a) The name of the corporation and the state or country
under whose law it is incorporated;
(b) The mailing address and, if different, street
address of its registered office and the name of its registered
agent at that office in this state;
(c) The address of its principal office;
(d) The names and business addresses of its directors
and principal officers;
(e) A brief description of the nature of its business;
(f) The total number of authorized shares, itemized
by class and series, if any, within each class; and
(g) The total number of issued and outstanding shares,
itemized by class and series, if any, within each class.
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(2) Information in the annual report must be current as of
the date the annual report is executed on behalf of the
corporation.
(3) The first annual report must be delivered to the Montana
Secretary of State between January 1 and April 15 of the year
following the calendar year in which the corporation was
incorporated. Subsequent annual reports must be delivered to the
Montana Secretary of State between January 1 and April 15. (Mont.
Code Ann. Section 35-1-1104).
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1 Amendment by Board of Directors or
Shareholders. (Mont. Code Ann. Section 35-1-234).
(1) The Board of Directors may amend or repeal these Bylaws
unless:
(a) The Restated Articles of Incorporation or the MBCA
reserve this power exclusively to the shareholders in whole or
part; or
(b) The shareholders in amending, adding, or repealing
a particular Bylaw provide expressly that the Board of Directors
may not amend or repeal that Bylaw.
(2) The shareholders may amend or repeal these Bylaws even
though the Bylaws may also be amended or repealed by the Board of
Directors.
Section 13.2 Interpretation; Severability. These Bylaws may
contain any provision for managing the business and regulating the
affairs of the corporation that is not inconsistent with law or the
Restated Articles of Incorporation. In the event any provision of
these Bylaws is inconsistent with law or the Articles of
Incorporation, such law or Restated Articles of Incorporation shall
govern. If any one or more of the provisions contained in these
Bylaws, or any application thereof, shall be invalid, illegal or
unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions contained herein and any
other application thereof shall not in any way be affected or
impaired thereby. (Mont. Code Ann. Sections 35-1-236(2); 35-1-
115(3)).
Section 13.3 Fiscal Year. The fiscal year of the
corporation shall begin on the 1st day of January and end on the
31st day of December in each year.
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The foregoing Restated Bylaws of United States Antimony
Corporation, a Montana corporation, were adopted by the Board of
Directors of the corporation effective on the 31st day of October,
2000.
/s/______________________________
Secretary
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