UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15 (d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 9, 1998
(January 30, 1998)
HOMESTAKE MINING COMPANY
(Exact name of Registrant as specified in its charter)
Delaware 1-8736 94-2934609
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation)
650 California Street, San Francisco, California 94108-2788
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 981-8150
http://www.homestake.com
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Item 5. Other Events.
1. Amendment to the Bylaws
This Form 8-K is submitted to file the Bylaws (as amended through
January 30, 1998), listed below in Item 7, to increase the number of
directors to 13.
2. Election of Director
Effective January 30, 1998, Peter J. Neff became a member of the
Registrant's board of directors.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit 3.5 Bylaws (as amended through January 30, 1998) of Homestake Mining
Company.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: February 9, 1998
HOMESTAKE MINING COMPANY
(Registrant)
By: /s/ David W. Peat
-----------------
David W. Peat
Vice President and Controller
EXHIBIT 3.5
HOMESTAKE MINING COMPANY
(A DELAWARE CORPORATION)
BYLAWS
As amended through January 30, 1998
ARTICLE I
MEETING OF STOCKHOLDERS
SECTION 1. The annual meeting of the Company shall be held on such day
and at such time as the Board of Directors shall determine, for the election of
Directors and the transaction of such other business as properly come before
such meeting.
SECTION 2. Special meetings of the stockholders may be called at any
time by the Chairman of the Board, by the President, by the Board of Directors
of the Company, by a committee of the Board of Directors which has been duly
designated by the Board of Directors and whose powers and authority, as provided
in a resolution of the Board of Directors or in the Bylaws of the Company
include the power to call such meetings, or by stockholders having not less than
seventy-five percent (75%) of the total voting power of all outstanding shares
of stock of the Company, but such special meetings may not be called by any
other person or persons; provided, however, that if and to the extent that any
special meeting of stockholders may be called by any other person or persons
specified in any provisions of the Restated Certificate of Incorporation or any
amendment thereto, or any certificate filed under Section 151(g) of the General
Corporation Law of Delaware (or its successor statute as in effect from time to
time hereafter), then such special meeting may also be called by the person or
persons in the manner, at the times and for the purposes so specified.
SECTION 3. All notices of meetings of stockholders shall be sent or
otherwise given in accordance with Section 4 of this Article I not less than ten
(10) nor more than sixty (60) days before the date of the meeting. The notice
shall specify the place, date and hour of the meeting and (1) in the case of a
special meeting, the general nature of the business to be transacted, and no
other business may be transacted, or (2) in the case of the annual meeting,
those matters which the Board of Directors, at the time of giving the notice,
intends to present for action by the stockholders, and (3) in the case of any
meeting at which directors are to be elected, the names of the nominees intended
at the time of the mailing of the notice to be presented by management for
election.
SECTION 4. Notice of any meeting of stockholders shall be given either
personally or by mail or other written communication, charges prepaid, addressed
to the stockholder at the address of the stockholder appearing on the books of
the Company, or given by the stockholder to the Company for the purpose of
notice. If no such address appears on the Company's books or is
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given, notice shall be deemed to have been given if sent to that stockholder by
mail or other written communication to the Company's principal executive office,
or, if published at least once in a newspaper of general circulation in the
county where that office is located. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
If any notice addressed to a stockholder at the address of that
stockholder appearing on the books of the Company is returned to the Company by
the United States Postal Service marked to indicate that the United States
Postal Service is unable to deliver the notice to the stockholder at that
address, all future notices or reports shall be deemed to have been duly given
without further mailing if these shall be available to the stockholder on
written demand of the stockholder at the principal executive office of the
Company for a period of one year from the date of the giving of the notice. An
affidavit of the mailing or other means of giving any notice of any
stockholders' meeting may be executed by the Secretary, any Assistant Secretary,
or any transfer agent of the Company giving the notice, and if executed shall be
filed and maintained in the minute book of the Company.
SECTION 5. Every annual meeting and every special meeting of the
stockholders shall be held at such place within or without the State of Delaware
as may be designated as the place for holding such meeting by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Company.
SECTION 6. Except as otherwise provided by statute of by the Restated
Certificate of Incorporation, the presence in person or by proxy of the holders
of a majority in interest of the Common Stock of the Company at the time issued
and outstanding at any meeting shall constitute a quorum for the transaction of
business. The stockholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment notwithstanding
the withdrawal of enough stockholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum. If such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time until a quorum shall by present or
represented. At any adjourned meeting at which a quorum shall be present or
represented any business which might have been transacted at the meeting which
was adjourned may be transacted and with the same effect. If after the
adjournment a new record date is fixed for the adjourned meeting or if the
adjournment is for more than thirty (30) days, notice of the adjourned meeting
shall be given as in the case of an original meeting, but otherwise no further
notice of the time and place of the adjourned meeting need be given other than
by announcement at the meeting at which such adjournment is taken.
SECTION 7. Except as otherwise provided by statute or by the Restated
Certificate of Incorporation, every stockholder of record shall be entitled at
any meeting of stockholders to one vote on each matter submitted to a vote of
the stockholders for every share of stock standing in
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the name of such person on the books of the Company and qualified to vote. The
stockholders' vote shall be by written ballot unless the requirement therefor is
dispensed with by the Board of Directors. On any matter other than elections of
directors, any stockholder may vote part of the shares in favor of the proposal
and refrain from voting the remaining shares or vote them against the proposal,
but, if the stockholder fails to specify the number of shares which the
stockholder is voting affirmatively, it will be conclusively presumed that the
stockholder's approving vote is with respect to all shares that the stockholder
is entitled to vote. If a quorum is present, the affirmative vote of the
majority of the shares present in person or represented by proxy and entitled to
vote on any matter shall be the act of the stockholders, unless the vote of a
greater number or voting by classes is required by statute or by the Restated
Certificate of Incorporation.
SECTION 8. In the event the Board of Directors fixes a day for the
determination of stockholders of record entitled to vote as provided in Section
I of Article XIV of these Bylaws, then only persons in whose names shares
entitled to vote stand on the stock records of the Company on such day shall be
entitled to vote.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the business day next preceding the day notice is
given or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held.
If no record date is fixed, the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned meeting,
but the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 9. At all meetings of the stockholders, stockholders may vote
either in person or by one or more agents authorized by a written proxy signed
by the stockholder and filed with the Secretary of the Company. A validly
executed proxy which does not state that it is irrevocable shall continue in
full force and effect unless (1) revoked by the person executing it, before the
vote pursuant to that proxy, by a writing delivered to the Company stating that
the proxy is revoked, or by a subsequent proxy executed by, or attendance at the
meeting and voting in person by, the person executing the proxy, or (2) written
notice of the death or incapacity of the maker of that proxy is received by the
Company before the vote pursuant to that proxy is counted; provided, however,
that no proxy shall be valid after the expiration of three (3) years from the
date of the proxy, unless otherwise provided in the proxy. The revocability of a
proxy that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(c) of the General Corporation Law of Delaware (or its
successor statute as in effect from time to time hereafter).
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SECTION 10. The transactions of any meeting of stockholders, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after a meeting, each person
entitled to vote, who was not present in person or by proxy, signs a written
waiver of notice or a consent to a holding of the meeting, or an approval of
minutes of the meeting. The waiver of notice or consent need not specify either
the business to be transacted or the purpose of any annual or special meeting of
stockholders. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of meeting but not so included if that objection is
expressly made at the meeting.
SECTION 11. No action shall be taken by the stockholders except at an
annual or special meeting of the stockholders.
SECTION 12. At any annual meeting of stockholders, only such business
shall be conducted as shall have been brought before the annual meeting (1) by
or at the direction of the chairman of the meeting or (2) by any stockholder who
is a holder of record at the time of the giving of the notice provided for in
this Section 12, who is entitled to vote at the meeting, and who complies with
the procedures set forth in this Section 12.
For business properly to be brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in proper
written form to the Secretary. To be timely, a stockholder's notice must be
received at the principal executive offices of the Company not less than 75 days
nor more than 180 days prior to the anniversary date of the immediately
preceding annual meeting; provided, however, that in the event that the date of
the annual meeting is more than 30 days earlier or more than 30 days later than
such anniversary date, notice by the stockholder to be timely must be so
received not earlier than the 180th day prior to such annual meeting and not
later than the close of business on the later of the 75th day prior to such
annual meeting or the 10th day following the day on which public announcement of
the date of such meeting is first made. To be in proper written form, a
stockholder's notice to the Secretary shall set forth in writing as to each
matter the stockholder proposes to bring before the annual meeting: (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting; and (ii) the
name and address, as they appear on the Company's books, of the stockholder
proposing such business. The foregoing notice requirements shall also be deemed
satisfied by a stockholder if the stockholder has notified the Company of his or
her intention to present a proposal at an annual meeting and such stockholder's
proposal has been included in a proxy statement that has been prepared by
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management of the Company to solicit proxies for such annual meeting; provided,
however, that if such stockholder does not appear or send a qualified
representative to present such proposal at such annual meeting, the Company need
not present such proposal for a vote at such meeting, notwithstanding that
proxies in respect of such vote may have been received by the Company.
ARTICLE II
DIRECTORS
SECTION 1. Subject to the limitations prescribed by statute or by the
Restated Certificate of Incorporation or these Bylaws as to action to be
authorized or approved by the stockholders, all the powers, rights and
privileges of the Company shall be exercised by or under the direction of, and
the business and affairs of the Company shall be managed under the direction of,
its Board of Directors. Directors shall be elected by the stockholders of the
Company, and at each election the persons receiving the greatest number of
votes, up to the number of directors then to be elected, shall be the persons
then elected. The election of directors is subject to any provisions in the
Restated Certificate of Incorporation relating thereto, including any provisions
for a classified Board.
SECTION 2. Except as otherwise provided by statute or by the Restated
Certificate of Incorporation, any vacancy in the Board of Directors may be
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director, and each director so elected shall hold office
until his successor is elected and qualified.
SECTION 3. All meetings of the Board of Directors shall be held at the
principal office of the Company or at any other place within or without the
State of Delaware as the Board of Directors may from time to time fix therefor.
Any meeting of the Board of Directors, regular or special, may be held by
conference telephone or similar communication equipment, so long as all
directors participating in the meeting can hear one another, and all such
directors shall be deemed to be present in person at the meeting.
SECTION 4. A regular meeting of the Board of Directors shall be
required to be given, shall be held, if a quorum be present, in each and every
year immediately after the adjournment of the annual meeting of stockholders for
the purpose of electing officers and transacting such other business as might be
transacted at any regular meeting of the Board. Regular meetings of the Board of
Directors, of which no notice shall be required to be given, shall be held in
every odd-numbered month in accordance with a schedule established by the Board
of Directors from time to time, except that the scheduled date of any meeting
may be changed by the Chairman of the Board or the President, in the discretion
of either, provided that notice of such change shall be given to all directors
personally or by mail, telegraph or telephone at least one (1) week prior to
such scheduled date and at least four (4) days prior to the date upon which such
meeting is to be held.
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SECTION 5. Special meetings of the Board of Directors shall be called
by the Secretary at the direction of the Chairman of the Board, the President,
or a majority of the directors. Notice of the time and place of any special
meeting of the Board of Directors shall be given by serving the same personally
or by telephone or by telegram addressed to each director at his post office
address as the same shall appear on the books of the Company at least two (2)
hours before such meeting. Each member of the Board of Directors shall, by
writing filed with the Secretary, designate his post office address to which
notices of meetings of the Board of Directors of this Company shall be directed,
and in the event of any change therein shall likewise designate his new post
office address.
SECTION 6. At all meetings of the Board of Directors a majority of the
directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and every act and decision done or made by a majority
of the directors present at a regular meeting or a duly called special meeting
held at which a quorum is present shall be the act of the Board of Directors,
unless a greater number is required by statute or by the Restated Certificate of
Incorporation. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting. In the absence of a quorum, a majority of the directors present at any
meeting may adjourn the meeting from time to time until and not past the time
fixed for the next regular meeting of the Board of Directors. Notice of the time
and place of holding an adjourned meeting need not be given to directors absent
from the meeting which was adjourned if the time and place of the adjourned
meeting are fixed at the meeting which was adjourned.
SECTION 7. By resolution of the Board of Directors, a fixed sum may be
allowed each director attending a meeting of the Board of Directors. Members of
the Executive Committee or other committees may likewise be allowed fixed sums
as determined by the Board of Directors. All directors shall be reimbursed for
any reasonable expenses which they incur as such for attendance at meetings of
the Board of Directors or committees or otherwise. Directors who are not also
officers or employees of the Company may receive such compensation for their
services as directors as may be fixed or determined by the Board of Directors.
Except as provided herein, no director shall be compensated for his services as
a director, but any director may serve the Company in any other capacity and
receive compensation therefor.
SECTION 8. The transactions of any meeting of the Board of Directors,
however called and notices, and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum be present and
if, either before or after the meeting, each of the directors not present signs
a written waiver of notice and consent to holding the meeting or an approval of
the minutes thereof, which waiver, consent, or approval shall be filed with the
corporate records or made a part of the minutes of the meeting. Notice of a
meeting shall also be deemed given to any director who attends the meeting
without protesting before or at its commencement, the lack of notice to that
director. Any action required or permitted to be taken by the Board of Directors
may be taken without a meeting, if all members of the Board shall
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individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board of Directors.
SECTION 9. The authorized number of Directors is hereby set at thirteen
until such number is changed by a Bylaw or amendment thereof duly adopted by the
stockholders in accordance with the Restated Certificate of Incorporation or by
the Board of Directors amending this Section Nine. The Board of Directors shall
be divided into three classes of directors elected for terms of three years
each. Until so changed, Class I shall consist of four directors, Class II shall
consist of five directors, and Class III shall consist of four directors.
SECTION 10. The Board of Directors may from time to time designate from
one to three former directors of this Company as Consultants to the Board of
Directors. The term of office of each such Consultant to the Board of Directors
shall terminate immediately after the adjournment of each annual meeting of
stockholders of the Company, or at such other time as may be determined by the
Board of Directors. A Consultant to the Board of Directors may attend meetings
of the Board of Directors with the privilege of participating in all
discussions, but without the right to vote, and shall be eligible for
appointment as Consultant to committees of the Board of Directors, but with no
right to vote. Consultants shall not be included in determining the presence of
a quorum. Other rights, privileges and duties of Consultants to the Board of
Directors and any compensation to be paid to Consultants to the Board of
Directors may be provided from time to time by resolution of the Board of
Directors.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. The Board of Directors may, by resolution or resolutions
passed by a majority of the authorized number of directors, appoint from their
number an Executive Committee of one or more directors, who shall make
recommendations to the Board. The Executive Committee, to the extent provided in
the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors including, without limitation,
the power and authority to declare a dividend, to authorize the issuance of
stock and to adopt a certificate of ownership and merger pursuant to Section 253
of the General Corporation Law of Delaware (or its successor statute as in
effect from time to time hereafter); but shall not have the power or authority
to: (a) amend the Restated Certificate of Incorporation (except that a committee
may, to the extent authorized in resolutions providing for the issuances of
stock adopted by the Board of Directors as provided in Section 151(a) of the
General Corporation Law of Delaware (or its successor statute as in effect from
time to time hereafter), fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, distribution of assets of the
Company, or the conversion into or the exchange of such shares for shares of any
other class or classes or any other series of the same of any other class or
classes of stock of the Company), (b) adopt an agreement of merger or
consolidation under Section 251 or 252 of the
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General Corporation Law of Delaware (or its successor statute as in effect from
time to time hereafter), (c) recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Company's property and assets, (d)
recommend to the stockholders a dissolution of the Company or a revocation of a
dissolution, or (e) amend the Bylaws of the Company. The Board of Directors
shall elect a Chairman of the Executive Committee, and in his absence the
Chairman of the Board shall act as Chairman of the Executive Committee, ex
officio, in his place, and in the absence of the Chairman of the Executive
Committee and the Chairman of the Board, the President of the Company shall act
as Chairman of the Executive Committee, ex officio, in their places.
SECTION 2. A majority of the Executive Committee shall constitute a
quorum for the transaction of business at any meeting thereof duly called and
held. The Board of Directors shall have the power to provide by resolution for
regular meetings of the Executive Committee and to specify the time and place of
holding such regular meetings. Special meetings of the Executive Committee may
be called at any time by the Chairman of the Board, the President, or by a
majority of the members of the Executive Committee and notice of all such
special meetings shall be given in the manner provided in Section 5 of Article
II. Meetings of the Executive Committee may be held at the principal office of
the Company, or, if authorized by resolution of the Board of Directors, such
meetings may, by unanimous consent of the members of the committee, be held at
any other place. The Board of Directors shall have the power to prescribe rules
for the government of the Executive Committee not inconsistent with the
provision of these Bylaws. In the absence of any such prescription by the Board
of Directors of by the Bylaws, the regular and special meetings and other
actions of the Executive Committee shall be governed by the provisions of
Article II applicable to meetings and actions of the Board, with such changes in
the context of these Bylaws as are necessary to substitute the Executive
Committee and its members for the Board of Directors and its members.
SECTION 3. The Board of Directors may, by resolution or resolutions
passed by a majority of the authorized number of directors, appoint from their
number such other committees consisting of one or more directors as the Board of
Directors may deem advisable. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent member at the
meeting of the committee. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have all the authority of the Board
of Directors, except with respect to the matters set forth in (a) through (e) of
Section 1 of this Article III and shall be governed in accordance with Section 2
of this Article III.
SECTION 4. The Executive and other committees shall keep records of
their proceedings and report the same to the Board of Directors whenever so
required.
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ARTICLE IV
OFFICERS
SECTION 1. The officers of this Company shall be a Chairman of the
Board, a President, a Vice President, a Secretary, a Treasurer and a Controller,
who shall be elected by and hold office at the pleasure of the Board of
Directors. The Board of Directors may also elect such additional officers, if
any, as it shall deem expedient, including, without limitation, one or more
Executive Vice Presidents, one or more Senior Vice Presidents, one or more Vice
Presidents and one or more assistant officers. Only members of the Board of
Directors shall be eligible for the office of the Chairman of the Board and the
office of President, but no other officer need be a member of the Board of
Directors. Any two or more offices may be held by the same person. The
compensation of officers shall be fixed and determined by the Board of Directors
from time to time.
SECTION 2. The Board of Directors, at its first meeting after each
annual meeting of stockholders, shall elect a Chairman of the Board, a
President, a Vice President, a Secretary, a Treasurer and a Controller and at
such time or from time to time may elect or appoint such other officers and
agents as it shall deem expedient.
SECTION 3. Except as otherwise provided by law, or in these Bylaws, or
by resolutions of the Board of Directors, each of such officers shall serve
until the date appointed by these Bylaws for the next annual meeting of
stockholders and until his successor is elected or appointed and shall have
qualified. If the office of any officer becomes vacant for any reason, the
vacancy may be filled by the Board of Directors.
SECTION 4. The Board of Directors, in its discretion, may require any
officer, agent or employee of the Company to give security for the faithful
performance of his duties in such form and amount and with or without one or
more of such sureties as the Board of Directors may determine.
SECTION 5. Nothing in this Article IV or elsewhere in these Bylaws
shall prevent the Board of Directors from authorizing, or the Company from
executing, a contract for the employment of a person as an officer of the
Company for a period of more than one year.
ARTICLE V
CHAIRMAN OF THE BOARD AND PRESIDENT
SECTION 1. The Chairman of the Board shall, if present, preside at all
meetings of the stockholders and of the Board of Directors, and shall have such
other powers and duties as shall
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be prescribed by the Board of Directors or by law. He shall be a member ex
officio of all committees, except the Audit, Compensation and Nominating
Committees.
SECTION 2. The President shall, if present and in the absence of the
Chairman of the Board, preside at all meetings of the stockholders and of the
Board of Directors, and shall have such other powers and duties as shall be
prescribed by the Board of Directors or by law. He shall be a member ex officio
of all committees, except the Audit, Compensation and Nominating Committees.
ARTICLE VI
POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER
AND HEAD OF THE COMPANY
Either the Chairman of the Board or the President, as may be determined
from time to time by the Board of Directors, shall have the powers and duties of
the Chief Executive Officer and head of the Company. Such powers and duties
shall include the general control and management of the business and affairs of
the Company; the responsibility for seeing that all orders and resolutions of
the Board of Directors are carried into effect; the exclusive authority to
execute bonds, mortgages and other contracts requiring a seal, under the seal of
the Company, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Company; and membership ex officio in all committees, except the Audit,
Compensation and Nominating Committees.
ARTICLE VII
EXECUTIVE VICE PRESIDENTS AND VICE PRESIDENTS
SECTION 1. Executive Vice Presidents, if any shall have been elected
and be in office, shall have and may exercise the powers and duties of the
President in the absence or inability of the latter and such other powers and
duties as may be assigned to him by the Board of Directors.
SECTION 2. The Vice President or Vice Presidents (including any Senior
Vice Presidents) shall have and exercise the powers and duties of the Executive
Vice President in the absence or inability of the President and the Executive
Vice Presidents and such other powers and duties as may be assigned to them
respectively by the Board of Directors.
SECTION 3. The Vice President, Finance shall be the Chief Financial
Officer of the Company.
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ARTICLE VIII
SECRETARY AND ASSISTANT SECRETARIES
SECTION 1. The Secretary shall have custody of the seal of the Company,
and when authorized by the Board of Directors, he shall affix the same to any
instrument requiring it, and when so affixed it shall be attested by his
signature or by the signature of the Treasurer or an Assistant Secretary. He
shall attend all meetings of the stockholders and of the Board of Directors and
keep the minutes of all proceedings in a book or books to be kept for that
purpose at the principal office of the Company or at such other place as the
Board of Directors may from time to time determine, and he shall perform like
duties for the Executive and other committees when required. He shall attend to
the giving and serving of all notices of the Company, and he shall perform such
other duties as may be incidental to his office or as may be assigned to him by
the Board of Directors, the Chairman of the Board, the President, or the officer
under whose supervision he shall be.
SECTION 2. It shall be the duty of the Assistant Secretaries, if any
shall have been elected and be in office, to aid the Secretary in the discharge
of his duties and to perform such other duties as may be assigned to them by the
Board of Directors, the Chairman of the Board, the President, the Vice
President, Finance, or the Secretary.
ARTICLE IX
TREASURER AND ASSISTANT TREASURER
SECTION 1. The Treasurer shall have the care and custody of the funds
and securities of the Company, except as otherwise determined by the Board of
Directors, and shall deposit all such funds and securities of the Company in the
name and to the credit of the Company in such depositories and places and
subject to withdrawal in such manner as these Bylaws or the Board of Directors
may determine. Within established lines of authority, he shall be responsible
for the administration of the Company's securities portfolio, pension plans,
insurance and employee benefit programs, the keeping of the stock certificate
book and such other books and records as the Board of Directors may direct. He
shall also have charge of a stock book containing the names of the stockholders
and their addresses, the number of shares of stock held by them respectively,
the name and date of the certificates issued for the same, and the number and
date of cancellation of every certificate surrendered for cancellation, and
shall have such other powers and perform such other duties as may be conferred
upon or assigned to him by the Board of Directors, the Chairman of the Board,
the President, the Vice President, Finance, or the officer under whose
supervision he shall be.
SECTION 2. It shall be the duty of the Assistant Treasurer, if one
shall have been elected and be in office, to aid the Treasurer in the discharge
of his duties and perform such other duties
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as may be assigned to him by the Board of Directors, the Chairman of the Board,
the President, the Vice President, Finance, or the Treasurer.
ARTICLE X
CONTROLLER AND ASSISTANT CONTROLLER
SECTION 1. The Controller shall keep or cause to be kept adequate and
correct accounts of the corporate properties and business transactions in books
belonging to the Company, and he shall disburse the funds of the Company as
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors,
whenever they may require it, an account of all of his transactions and the
financial condition of the Company. He shall be responsible for the
administration of programs providing for financial management and budgetary
controls of the Company, development of accounting policies and procedures, and
use of data processing equipment and the preparation, review and filing of all
tax and other financial reports and returns, and he shall have such other powers
and perform such other duties as may be conferred upon or assigned to him by the
Board of Directors, the Chairman of the Board, the President, the Vice
President, Finance, or the officer under whose direct supervision he shall be.
SECTION 2. It shall be the duty of the Assistant Controller, if one
shall have been elected and be in office, to aid the Controller in the discharge
of his duties and to perform such other duties as may be assigned to him by the
Board of Directors, the Chairman of the Board, the President, the Vice
President, Finance, or the Controller.
SECTION 3. The Controller shall be the Chief Accounting Officer of the
Company.
ARTICLE XI
GENERAL MANAGER
SECTION 1. The Board of Directors may appoint a General Manager who
shall not be an officer of the Company unless the Board shall otherwise
determine.
SECTION 2. Subject to the supervision and direction of the Chairman of
the Board or the President, and in accordance with the policies determined by
the Board of Directors, the General Manager shall have power and authority to do
and transact and supervise and direct such of the usual and ordinary business of
the Company as may be designated by the Chairman of the Board or the President.
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SECTION 3. The Board of Directors may also appoint an Assistant General
Manager to aid the General Manager in the performance of his duties and to
perform such other duties as may be required of him by the Chairman of the Board
or the President.
SECTION 4. The Chairman of the Board or the President may, with the
approval of the Board of Directors, appoint managers or superintendents for
specific operations that are not related to or included in those assigned to the
General Manager, with duties and responsibilities as may be designated by the
Chairman of the Board or the President.
ARTICLE XII
REMOVALS, RESIGNATIONS AND VACANCIES OF DIRECTORS AND OFFICERS
SECTION 1. No member of the Board of Directors may be removed without
cause and except in compliance with the Company's Restated Certificate of
Incorporation.
SECTION 2. Any director or officer may resign his office at any time,
such resignation to be made in writing and to take effect from the time of its
receipt by the Company, unless a different time be fixed in the resignation, and
in that event, from the time so fixed. The acceptance of a resignation shall not
be required to make it effective.
SECTION 3. Any officer elected or appointed by the Board of Directors
may be removed at any time with or without cause by the Board of Directors. Any
other officer or employee of the Company may be removed at any time with of
without cause by the Board of Directors or by any committee or superior officer
upon who such power of removal may be conferred by the Bylaws or by the Board of
Directors.
SECTION 4. If the office of any director becomes vacant for any cause
other than his removal or the expiration of his term of office, or if the office
of any officer, agent or employee becomes vacant for any cause (other than the
expiration of his term of office), such vacancy may be filled for the unexpired
portion of the term, if any, by a majority of the remaining directors, though
less than a quorum, or by a sole remaining director.
ARTICLE XIII
CERTIFICATES OF STOCK
SECTION 1. Form of Certificate. Certificates for shares of stock of the
Company shall be in such form and of such design as the Board of Directors shall
prescribe and each certificate for shares issued by the Company shall be signed
by the Chairman of the Board, or the President or the Executive Vice President
or a Vice President and the Secretary or an Assistant Secretary.
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Any or all of the signatures on the certificate may be facsimile. If any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Company with the same effect as if such person were an officer, transfer
agent or registrar at the date of issue. The certificates for shares shall be
numbered and registered as they are issued. They shall exhibit the number, date
of issuance, name of person to whom issued, designation, if any, the class or
series of shares represented thereby, the par value of the shares or a statement
that such shares are without par value.
SECTION 2. Transfer of Shares. Upon surrender to the Secretary or
Transfer Agent of the Company of a certificate for shares, duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto and
the old certificate canceled and the transaction recorded upon the books of the
Company.
SECTION 3. Lost Certificates. The Chairman of the Board or the
President and the Secretary or the Assistant Secretary may in their discretion
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Company alleged to have
been lost or destroyed upon the production by the person claiming the
certificate for shares to be lost or destroyed of satisfactory evidence of the
loss or destruction of such certificate or certificates and of the claimant's
ownership of the shares of stock represented thereby, together with a bond in
favor of the Company, with a surety satisfactory to said officers, in the amount
of the then current market value of the stock represented by such allegedly lost
certificate or certificates, conditioned upon such claimant and surety
indemnifying and saving harmless the Company from all and every cost, charge,
expense and liability which it may in any manner incur by reason of the issuance
of such new certificate or certificates, and further conditioned upon their
surrendering to the Company for cancellation such allegedly lost certificate or
certificates in the event of their subsequent discovery; or the Chairman of the
Board or President or Secretary may refer any such application for the issuance
of a new certificate or certificates to the Board of Directors which shall have
the power to direct the issuance of a new certificate or certificates upon
submission of such proof and upon such guarantee on the part of the applicant as
the Board of Directors may deem satisfactory.
ARTICLE XIV
GENERAL PROVISIONS
SECTION 1. Fixing of Record Date or Closing of Transfer Books. The
Board of Directors may fix a time in the future as a record date for the
determination of the stockholders entitled to notice of and to vote at any
meeting or entitled to receive any dividend or distribution or any allotment of
rights or to exercise any rights in respect of any other lawful action. The
record date so fixed shall not be more than sixty (60) nor less than ten (10)
days prior to the date
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of such meeting and no more than sixty (60) days prior to any other action. When
a record date is so fixed, then, subject to the provisions of the General
Corporation Law of Delaware, only stockholders of record at that date shall be
entitled to notice of and to vote at the meeting or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case may
be, notwithstanding any transfer of any shares on the books of the Company after
the record date. The Board of Directors may close the books of the Company
against transfer of shares during the whole or any part of the period of not
more than sixty (60) days prior to the date of a stockholders' meeting, the date
when the right to any distribution or allotment of rights vests, or the
effective date of any change, conversion or exchange of shares.
SECTION 2. Dividends. Subject to the provisions of the Restated
Certificate of Incorporation relating thereto, if any, dividends may be declared
by the Board of Directors at any regular or special meeting of the Board of
Directors pursuant to law. Dividends may be paid in cash, in property, or in
shares of capital stock, subject to any provisions of the Restated Certificate
of Incorporation.
SECTION 3. Reserves. Before payment of any dividend there may be set
aside out of any funds of the Company available for dividends such sum or sums
as the Board of Directors from time to time in their absolute discretion think
appropriate as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Company, or for
such other purposes as the Board of Directors shall think conducive to the
interests of the Company, and the Board of Directors may abolish any such
reserve in the manner in which it was created.
SECTION 4. Annual Report. The Board of Directors shall cause an annual
report to be sent to the stockholders not later than one hundred twenty (120)
days after the close of each fiscal year of the Company and at least fifteen
(15) days prior to the annual meeting of stockholders to be held during the
ensuing fiscal year.
SECTION 5. Checks, Drafts and Notes. All checks, drafts and demands for
money and notes of the Company shall be signed by such individual or individuals
as the Board of Directors may from time to time designate.
SECTION 6. Representation of Shares of Other Corporations. The chief
executive officer or any other officer or officers authorized by the Board of
Directors or the President are each authorized to vote represent, and exercise
on behalf of the Company all rights incident to any and all shares of any other
corporation or corporations standing in the name of the Company. The authority
herein granted may be exercised either by any such officer in person or by any
other person authorized so to do by proxy or power of attorney duly executed by
said officer.
SECTION 7. Seal. The seal of the Company shall consist of a circle
bearing on its surface the inscription,
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"Homestake Mining Company
Delaware
Incorporated November 28, 1983"
SECTION 8. Indemnification.
(a) Right of Indemnification. To the fullest extent permitted by the
General Corporation Law of Delaware, the Company shall indemnify each
director and officer and may indemnify each employee or other agent of
the Company against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with any action,
suit or proceeding arising by reason of the fact that any such person
is or was a director, officer, employee or other agent of the company
or is or was serving at the request of the Company as a director,
officer, employee or other agent of another corporation, partnership,
joint venture, trust or other enterprise.
(b) Advances of Expenses. Expenses incurred by an officer or director
in defending a civil or criminal action, suit or proceeding arising by
reason of the fact that such director or officer is or was a director
or officer of the Company or was serving at the request of the Company
as a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust or other enterprise shall be paid by
the Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled
to be indemnified by the Company as authorized in this Section 8. Such
expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may, with the consent of such
director, officer, employee or other agent of the Company, authorize
the legal counsel of the Company to represent such person, in any
action, suit or proceeding, whether or not the Company is a part to
such action, suit or proceeding.
(c) Procedure for Indemnification. Any indemnification or advance of
expenses required hereunder shall be made promptly, and in any event
within sixty (60) days after a written request therefor by a director
or officer. The right to indemnification or advances as granted by this
Section 8 shall be enforceable by a director or officer in any court of
competent jurisdiction, if the Company denies such request, in whole or
in part, or if no disposition thereof is made within sixty (60) days.
The director's or officer's expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Company. It
shall be a defense to any such action (other than an action brought to
enforce a claim for the advance of expenses where the required
undertaking, if any, has been received by the Company) that the
claimant has not met the standard of conduct required by law, but the
failure of the Company (including its Board of Directors, its
independent legal counsel and
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its stockholders) to have made a determination as to whether
indemnification of the claimant is proper in the circumstances because
he has met the applicable standard of conduct shall not be a defense to
the action or create a presumption that the claimant has not met the
applicable standard of conduct.
(d) Other Rights. The indemnification and advancement of expenses
provided by or granted pursuant to this Section 8 shall not be deemed
exclusive of any other rights to which a person seeking indemnification
may be entitled under any law (common or statutory), agreement, vote of
stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding office. All rights to indemnification under this Section 8
shall be deemed to be a contract between the Company and each director
and officer who serves or served in such capacity at any time while
this Section 8 is in effect, and any repeal or modification of this
Section 8 or relevant provision of the General Corporation Law of
Delaware or any other applicable law shall not in any way diminish any
rights to indemnification of such director or officer, or the
obligations of the Company arising hereunder prior to such modification
or repeal.
(e) Insurance. The Company may, but shall not be required to, purchase
and maintain insurance on behalf of any person who is or was a director
or officer of the Company against any liability asserted against such
person and incurred by him or on his behalf in such capacity or as a
director, officer, employee or other agent of another corporation,
partnership, joint venture, trust or other enterprise, for which such
person is or was serving at the request of the Company, or arising out
of his status as such, whether or not the Company would have the power
to indemnify him against such liability under the provisions of this
Section 8, all as the Board of Directors may from time to time deem
appropriate.
(f) Definitions. For purposes of this Section 8:
(i) service as a director, officer, employee or other agent of
any corporation, partnership, joint venture, trust or other
enterprise in which the Company, directly or indirectly, holds
an interest shall be deemed to be service at the request of
the Company;
(ii) "the Company" shall include in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers, employees or other agents, so that any person who is
or was a director, officer, employee or other agent of such
constituent corporation, or is or was serving at the request
of such constituent corporation, as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same
position under the provision of this Section 8 with respect to
the resulting or
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surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued;
(iii) "other enterprise" shall include without limitation
employee benefit plans; "fines" shall include without limitation
any excise taxes assessed on a person with respect to an
employee benefit plan; and "serving at the request of the
Company" shall include without limitation any service as a
director, officer, employee or other agent of the Company which
imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries;
(iv) the indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 8 shall, unless other
wise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person;
(v) "expenses" shall include all direct and indirect costs,
charges and attorneys' fees; and
(vi) "action, suit or proceeding" shall include any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and
any appeal therefrom.
(g) Effect of Advances. Advances of expenses by the Company as required
or authorized by this Section 8 shall not be deemed or interpreted as
ratifying, approving or condoning any act or omission by any director,
officer or employee of the Company in violation of standards of conduct
required by law.
(h) Savings Clause. If this Section 8 or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify each director and officer of
the Company as to expenses, judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding to the
fullest extent permitted by any applicable portion of this Section 8
that shall not have been invalidated and to the fullest extent
permitted by applicable law.
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ARTICLE XV
AMENDMENT OF BYLAWS
These Bylaws may be amended or repealed, or new bylaws may be adopted,
(a) by the affirmative vote of the stockholders entitled to exercise a majority
of the voting power of the Company or (b) by the affirmative vote of the
majority of the Board of Directors at any regular or special meeting. Any Bylaw
adopted or amended by the stockholders may be amended or repealed by the Board
of Directors.
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