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BATTLE MOUNTAIN GOLD COMPANY
AMENDED BYLAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this
Corporation shall be held on such date and at such time and place, within or
without the State of Nevada, as the Board of Directors of the Corporation may
designate, and on any subsequent day or days and at the time and place to
which such meeting may be adjourned, for the purposes of electing directors
and of transacting such other business as may properly come before the
meeting. The Board of Directors shall give at least ten (10) days' notice of
the date, time and place of the meeting to the stockholders.
SECTION 2. Any action required or permitted to be taken by
the stockholders of the Corporation must be effected at a duly called annual
or special meeting of stockholders and may not be effected by any consent in
writing by stockholders. Except as otherwise required by law and subject to
the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation, special meetings
of stockholders of the Corporation may be called only by the Board of
Directors pursuant to a resolution approved by a majority of the entire Board
of Directors or by the Chairman of the Board or by the President of the
Corporation. Upon written request of the Board of Directors, the Chairman of
the Board or the President, after the Chairman of the Board or the President
after having duly called a special meeting of stockholders, it shall be the
duty of the Secretary or any Assistant Secretary of the Corporation to fix
the date of the meeting to be held not less than ten (10) nor more than sixty
(60) days after receipt of the request and to give due notice thereof.
SECTION 3. Every special meeting of stockholders shall be
held at such place within or without the State of Nevada as the Board of
Directors may designate.
SECTION 4. Written notice of every meeting of stockholders
shall be given by the Secretary of the Corporation to each stockholder of
record entitled to vote at the meeting, by placing such notice in the mail at
least ten (10) days, but not more than sixty (60) days, prior to the day
named for the meeting addressed to each stockholder at his address appearing
on the books of the Corporation.
SECTION 5. The Board of Directors may fix a date, not less
than ten (10) nor more than sixty (60) days preceding the date of any meeting
of stockholders, as a record date for the determination of stockholders
entitled to notice of, and to vote at, any such meeting. The Board of
Directors shall not close the books of the Corporation against transfers of
shares during the whole or any part of such period.
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SECTION 6. The notice of every meeting of stockholders may
be accompanied by a form of proxy approved by the Board of Directors in favor
of such person or persons as the Board of Directors may select.
SECTION 7. Except as otherwise provided by law, the
Articles of Incorporation of the Corporation or these Bylaws, the presence in
person or by proxy of the holders of a majority of the votes entitled to be
cast thereat shall constitute a quorum at each meeting of stockholders. The
stockholders present at any duly organized meeting may continue to do
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Directors shall be elected by a
plurality of the votes cast in the election. For all matters as to which no
other voting requirement is specified by law, the Articles of Incorporation
of the Corporation or these Bylaws, the affirmative vote required for
stockholder action shall be that of a majority of the votes entitled to be
cast thereon present in person or represented by proxy at the meeting (as
counted for purposes of determining the existence of a quorum at the
meeting). In the case of a matter submitted for a vote of the stockholders as
to which a stockholder approval requirement is applicable under the
stockholder approval policy of the New York Stock Exchange, the requirements
of Rule 16b-3 under the Securities Exchange Act of 1934 or any provision of
the Internal Revenue Code, in each case for which no higher voting
requirement is specified by law, the Articles of Incorporation of the
Corporation or these Bylaws, the vote required for approval shall be the
requisite vote specified in such stockholder approval policy, Rule 16b-3 or
Internal Revenue Code provision, as the case may be (or the highest such
requirement if more than one is applicable). For the approval of the
appointment of independent public accountants (if submitted for a vote of the
stockholders), the vote required for approval shall be a majority of the
votes cast on the matter.
SECTION 8. Any meeting of stockholders may be adjourned
from time to time, without notice other than by announcement at the meeting
at which such adjournment is taken, and at any such adjourned meeting at
which a quorum shall be present any action may be taken that could have been
taken at the meeting originally called; provided that if the adjournment is
for more than thirty (30) days, or if, after the adjournment, a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
adjourned meeting.
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ARTICLE II
BOARD OF DIRECTORS
SECTION 1. The business, affairs and property of the
Corporation shall be managed by a board of directors divided into three
classes as provided in the Articles of Incorporation of the Corporation. The
number of directors constituting the entire Board of Directors shall be fixed
from time to time by resolution of the entire Board of Directors but shall be
not less than three nor more than twelve. Each director shall hold office for
the full term to which he shall have been elected and until his successor is
duly elected and shall qualify, or until his earlier death, resignation or
removal. A director need not be a resident of the State of Nevada or a
stockholder of the Corporation.
SECTION 2. Except as provided in the Articles of
Incorporation of the Corporation and subject to the rights of holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect directors under specified
circumstances, 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 shall be
filled by the affirmative vote of a majority of the remaining directors then
in office, even though less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall hold office
for the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualifies. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION 3. No director of the Corporation shall be removed
from office as a director without cause except by the affirmative vote of the
holders of 80% of the number of shares of Common Stock then outstanding. A
Director may be removed from office for cause only by the affirmative vote of
the holders of not less than a majority of the Common Stock then outstanding.
Except as otherwise provided by law or fixed pursuant to the provisions of
Article FOURTH of the Corporation's Restated Articles of Incorporation
relating to the rights of holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, this
Section 3 shall not apply with respect to any director elected by the holders
of any such class or series having preference.
SECTION 4. Subject to the rights of holders of any class or
series having a preference over the Common Stock as to dividends or upon
liquidation, nominations for the election of directors may be made by the
Board of Directors or a proxy committee appointed by the Board of Directors
or by any stockholder entitled to vote in the election of directors. Any
stockholder entitled to vote in the election of directors may nominate one or
more persons for election as directors only at a meeting of stockholders and
only if written notice of such stockholder's intent to make such nomination
or nominations has been given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation not later
than (i) with respect to an election to be held at an annual meeting of
stockholders, ninety (90) days in advance of such meeting, and (ii) with
respect to an election to be held at a special meeting of stockholders for
the election of directors, the close of
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business on the seventh day following the date on which notice of such
meeting is first given to stockholders.
Each such notice shall set forth: (a) the name and address of the stockholder
who intends to make the nomination and of the person or persons to be
nominated; (b) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination
or nominations are to be made by the stockholder; (d) such other information
regarding each nominee proposed by such stockholder as would be required to
be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, as then in effect, had the nominee been
nominated, or intended to be nominated, by the Board of Directors; and (e)
the consent of each nominee to serve as a director of the Corporation if so
elected.
SECTION 5. Regular meetings of the Board of Directors shall
be held at such place or places within or without the State of Nevada and at
such time and on such day as may be fixed by resolution of the Board of
Directors, without further notice of such meetings. The time or place of
holding regular meetings of the Board of Directors may be changed by the
Chairman of the Board of Directors or the President of the Corporation by
giving written notice thereof as provided in Section 7 of this Article II.
SECTION 6. Special meetings of the Board of Directors shall
be held, whenever called by the Chairman of the Board of Directors, the
Chairman of the Executive Committee of the Board of Directors, the President
of the Corporation, or by resolution adopted by the entire Board of
Directors, at such place or places within or without the State of Nevada as
may be stated in the notice of the meeting.
SECTION 7. Written notice of the time and place of, and
general nature of the business to be transacted at, all special meetings of
the Board of Directors, and written notice of any change in the time or place
of holding the regular meetings of the Board of Directors, shall be given to
each director personally or by mail or by telegraph, telecopier or similar
communication; provided, however, that notice of any meeting need not be
given to any director if waived by him in writing, or if he shall be present
at such meeting.
SECTION 8. A majority of directors in office shall
constitute a quorum of the Board of Directors for the transaction of
business, but a lesser number may adjourn from day to day until a quorum is
present. Except as otherwise provided by law or in these Bylaws, all
questions shall be decided by a vote of a majority of the directors present.
SECTION 9. Any action that may be taken at a meeting of the
Board of Directors or members of the Executive Committee may be taken without
a meeting if consent in writing setting forth the action so taken shall be
signed by all of the directors or members of the Executive Committee, as the
case may be, and shall be filed with the Secretary of the Corporation.
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SECTION 10. The Board of Directors may designate one or
more of its number to be Vice Chairman of the Board, Chairman of the
Executive Committee and Chairman of any other committees of the Board of
Directors and to hold such other positions on the Board as the Board of
Directors may designate.
ARTICLE III
EXECUTIVE COMMITTEE
The Board of Directors may, by resolution adopted by a
majority of the entire Board, designate two or more of its number to
constitute an Executive Committee that shall have and exercise the authority
of the Board of Directors in the management of the business of the
Corporation to the extent permitted by law during intervals between meetings
of the Board. The Board of Directors may, by resolution adopted by a majority
of the entire Board, designate two or more of its number to constitute any
other Committee or Committees with such powers, duties, responsibilities and
duration of existence as the Board of Directors shall deem necessary or
desirable.
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Corporation shall consist of
a Chairman of the Board of Directors, President, Secretary, Treasurer and
such Executive, Group, Senior or other Vice Presidents, and other officers as
may be elected or appointed by the Board of Directors. Any number of offices
may be held by the same person. All officers shall hold office until their
successors are elected or appointed, except that the Board of Directors may
remove any officer at any time at its discretion.
SECTION 2. The officers of the Corporation shall have such
powers and duties as generally pertain to their offices, except as modified
herein or by the Board of Directors, as well as such powers and duties as
from time to time may be conferred by the Board of Directors. The Chairman of
the Board and the President shall establish an office of the Chief Executive
with officers from the Corporation and Battle Mountain Canada Ltd. to manage
the Corporation, Battle Mountain Canada Ltd. and their respective
subsidiaries. The Chairman of the Board shall preside at meetings of the
Board of Directors and at meetings of stockholders.
ARTICLE V
SEAL
The seal of the Corporation shall be in such form as the
Board of Directors shall prescribe.
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ARTICLE VI
CERTIFICATES OF STOCK
The shares of stock of the Corporation shall be represented
by certificates of stock, signed by the President or such Vice President or
other officer designated by the Board of Directors, countersigned by the
Treasurer or the Secretary and bearing the seal of the Corporation; and such
signature of the President, Vice President, or other officer, such
countersignature of the Treasurer or Secretary, and such seal, or any of
them, may be executed in facsimile, engraved or printed. In case any officer
who has signed or whose facsimile signature has been placed upon any share
certificate shall have ceased to be such officer because of death,
resignation or otherwise before the certificate is issued, the certificate
may be issued by the Corporation with the same effect as if the officer had
not ceased to be such at the date of its issue. Said certificates of stock
shall be in such form as the Board of Directors may from time to time
prescribe.
ARTICLE VII
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION - GENERAL. The
Corporation shall indemnify and hold harmless each person who was or is, or
is threatened to be made, a party to or otherwise involved in any threatened,
pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or other proceeding, whether
civil, criminal, administrative or investigative in nature (any such
threatened, pending or completed proceeding being hereinafter called a
"Proceeding") by reason of the fact that he is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as
a director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(whether the basis of his involvement in such Proceeding is alleged action in
an official capacity or in any other capacity while serving as such), to the
fullest extent permitted by applicable law in effect on April 28, 1987, and
to such greater extent as applicable law may thereafter from time to time
permit, from and against all expense, liability and loss (including Expenses,
as hereinafter defined, judgments, penalties, ERISA excise taxes, fines and
amounts paid or to be paid in settlement) actually and reasonably incurred by
him or on his behalf or suffered in connection with such Proceeding or any
claim, issue or matter therein; PROVIDED, HOWEVER, that, except as provided
in Section 5 of this Article VII, the Corporation shall indemnify any such
person claiming indemnity in connection with a Proceeding initiated by such
person only if such Proceeding was authorized by the Board of Directors. Such
indemnification rights shall include, but not be limited to, the right to be
indemnified to the fullest extent permitted by N.R.S. Sections 78.751(1) and
(3) in the case of all other Proceedings.
SECTION 2. CERTAIN PROVISIONS RESPECTING INDEMNIFICATION
FOR AND ADVANCEMENT OF EXPENSES. (a) Without limiting any other right of
indemnification provided for in this Article VII, to the extent that a person
referred to in Section 1 of this Article VII claiming indemnity thereunder is
successful on
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the merits or otherwise in defense of any Proceeding, he must be indemnified
against all Expenses actually and reasonably incurred by him or on his behalf
in connection with such Proceeding. If such person is not wholly successful
in defense of such Proceeding but is successful on the merits or otherwise
therein, the Corporation must indemnify such person against all Expenses
actually and reasonably incurred by him or on his behalf in connection with
each successfully resolved claim, issue or matter. The termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue
or matter.
(b) To the extent that a person referred to in Section 1 of
this Article VII is required to serve as a witness in any Proceeding referred
to therein, he shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection with serving as a
witness.
(c) The Corporation must from time to time pay, in advance
of final disposition, all reasonable Expenses incurred, as such Expenses are
incurred, by or on behalf of any person referred to in Section 1 of this
Article VII claiming indemnity thereunder in respect of any Proceeding
referred to therein. Each such advance shall be made within ten (10) days
after the receipt by the Corporation of a statement from the claimant
requesting the advance, which statement shall reasonably evidence the
relevant Expenses and be accompanied or preceded by any such undertaking as
may be required by applicable law respecting the contingent repayment of such
Expenses.
SECTION 3. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION. (a) To obtain indemnification under this Article VII, a
claimant shall submit to the Secretary of the Corporation a written
application. The Secretary of the Corporation shall, promptly upon receipt of
such an application for indemnification, advise the Board of Directors in
writing of the application. In connection with any such application, the
claimant shall provide such documentation and information as is requested by
the Corporation and reasonably available to him and relevant to a
determination of entitlement to indemnification.
(b) Any indemnification under this Article VII, unless
otherwise ordered by a court or advanced pursuant to Paragraph (c) of Section
2 of this Article VII, must be made by the Corporation upon a determination
that indemnification is proper in the circumstances. The determination must
be made: (i) by the Board of Directors by a majority vote of such quorum
consisting of Disinterested Directors, (ii) by Independent Counsel in a
written opinion, if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, a majority
vote of such quorum of Disinterested Directors so directs, or (iii) by the
stockholders of the Corporation; PROVIDED, HOWEVER, that if a Change of
Control, as hereinafter defined, shall have occurred, no determination of
entitlement to indemnification adverse to the claimant shall be made other
than one made or concurred in by Independent Counsel, selected as provided in
Paragraph (d) of this Section 3, in a written opinion.
(c) If the determination of entitlement to indemnification
is to be made by Independent Counsel in the absence of a Change of Control,
the Corporation shall furnish notice to the claimant within ten (10) days
after receipt of the application for indemnification, specifying the identity
and address of Independent Counsel. The claimant may, within fourteen (14)
days after receipt of such written notice of selection, deliver to the
Corporation a written objection to such selection, subject to Paragraph (e)
of this Section 3. If such an objection is made, either the
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Corporation or the claimant may petition any court of competent jurisdiction
for a determination that the objection is without a reasonable basis and/or
for the appointment as Independent Counsel of counsel selected by the Court.
(d) If there has been a Change of Control, Independent
Counsel to act as and to the extent required by Paragraph (b) of this Section
3 shall be selected by the claimant, who shall give the Corporation written
notice advising of the identity and address of the Independent Counsel so
selected. The Corporation may, within seven (7) days after receipt of such
written notice of selection, deliver to the claimant a written objection to
such selection, subject to Paragraph (e) of this Section 3. The claimant may,
within five (5) days after the receipt of such objection, select other
counsel to act as Independent Counsel, and the Corporation may, within seven
(7) days after receipt of such written notice of selection, deliver to the
claimant a written objection, as aforesaid, to such second selection. In the
case of any such objection, the claimant may petition any Court of competent
jurisdiction for a determination that the objection is without a reasonable
basis and/or for the appointment as Independent Counsel of counsel selected
by the Court.
(e) Any objection to the selection of Independent Counsel
may be asserted only on the ground that the counsel so selected does not
qualify as Independent Counsel under the definition contained in Section 8 of
this Article VII, and the objection shall set forth with particularity the
basis of such assertion. No counsel selected by the Corporation or by the
claimant may serve as Independent Counsel if a timely objection has been made
to his selection unless a Court has determined that such objection is without
a reasonable basis.
(f) The Corporation shall pay any and all reasonable fees
and expenses of Independent Counsel acting pursuant to this Article VII and
in any proceeding to which such counsel is a party or a witness in respect of
its investigation and report. The Corporation shall pay all reasonable fees
and expenses incident to the procedures of this Section 3 regardless of the
manner in which Independent Counsel is selected or appointed.
SECTION 4. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) A person referred to in Section 1 of this Article VII claiming a right to
indemnification under this Article VII shall be presumed (except as may be
otherwise expressly provided in this Article VII or required by applicable
law) to be entitled to such indemnification upon submission of an application
for indemnification in accordance with Section 3, and the Corporation shall
have the burden of proof to overcome the presumption by clear and convincing
evidence in any determination contrary to the presumption.
(b) Unless the determination is to be made by Independent
Counsel, if the person or persons empowered under Section 3 of this Article
VII to determine entitlement to indemnification shall not have made and
furnished the determination in writing to the claimant within sixty (60) days
after receipt by the Corporation of the application for indemnification, the
determination of entitlement to indemnification, shall be deemed to have been
made in favor of the claimant unless the claimant knowingly misrepresented a
material fact in connection with the application or such indemnification is
prohibited by law. The termination of any Proceeding described in Section 1
of this Article VII, or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not (except as may be otherwise expressly
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provided in this Article VII or required by applicable law) of itself
adversely affect the right of a claimant to indemnification or create a
presumption that a claimant did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation, or with respect to any criminal Proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
SECTION 5. RIGHT OF CLAIMANT TO BRING SUIT. (a) If (i) a
determination is made pursuant to the procedures contemplated by Section 3 of
this Article VII that a claimant is not entitled to indemnification under
this Article VII, (ii) advancement of Expenses is not timely made pursuant to
Paragraph (c) of Section 2 of this Article VII, (iii) Independent Counsel has
not made and delivered a written opinion as to entitlement to indemnification
within ninety (90) days after the selection or appointment of counsel has
become final by virtue of the lapse of time for objection or the overruling
of objections or appointment of counsel by a Court, or (iv) payment of a
claim for indemnification is not made within ten (10) days after a favorable
determination of entitlement to indemnification has been made or deemed to
have been made pursuant to Section 3 or 4 of this Article VII, the claimant
shall be entitled to bring suit against the Corporation to establish his
entitlement to such indemnification or advancement of Expenses and to recover
the unpaid amount of his claim. Neither the failure of the Corporation
(including its Board of Directors, Independent Counsel or its stockholders)
to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper under the circumstances, nor an
actual determination by the Corporation (including its Board of Directors,
Independent Counsel or its stockholders) that indemnification is not proper
in the circumstances, shall be a defense to the action or create a
presumption that indemnification is not proper in the circumstances, and the
claimant shall be entitled to a DE NOVO trial on the merits as to any such
matter as to which no determination or an adverse determination has been made.
(b) If a claimant is successful in whole or in part in
prosecuting any claim referred to in Paragraph (a) of this Section 5, the
claimant shall also be entitled to recover from the Corporation, and shall be
indemnified by the Corporation against, any and all Expenses actually and
reasonably incurred by him in prosecuting such claim if such Expenses have
not already been paid by the Corporation.
SECTION VI. NON-EXCLUSIVITY, INSURANCE AND SURVIVAL OF
RIGHTS. The rights of indemnification and to receive advancement of Expenses
contemplated by this Article VII shall not be exclusive of any other right to
which any person may at any time be entitled under any applicable law,
provision of the Articles of Incorporation, bylaw, agreements, vote of
stockholders or resolution of directors, or otherwise. Without limiting the
generality of the foregoing, the Corporation may, by action of its Board of
Directors, provide indemnification to other employees and agents of the
Corporation with the same or lesser scope and effect as the indemnification
of directors and officers authorized by this Article VII.
The Corporation may purchase and maintain insurance or make
other financial arrangements on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
for any liability
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asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his
status as such, whether or not the Corporation has the authority to indemnify
him against such liability and expenses under the Corporation Law of Nevada.
The other financial arrangements made by the Corporation
may include the following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by granting
a security interest or other lien on any assets of the
Corporation.
(d) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection
may provide protection for a person adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable for
intentional misconduct, fraud or a knowing violation of law, except with
respect to the advancement of expenses or indemnification ordered by a court.
The right to indemnification conferred in this Article VII
shall be a contract right, and no amendment, alteration or repeal of this
Article VII or any provision thereof shall restrict the indemnification
rights granted by this Article VII as to any person claiming indemnification
with respect to acts, events and circumstances that occurred, in whole or in
part, before such amendment, alteration or repeal. The provisions of this
Article VII shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his heirs, executors and
administrators.
SECTION 7. SEVERABILITY. If any provision of this Article
VII shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby; and, to the
fullest extent possible, the provisions of this Article VII shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
SECTION 8. DEFINITIONS. For purposes of this Article VII:
(a) "Change of Control" shall be deemed to have
occurred if: (i) any "person," including a "group" as determined in
accordance with Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is or becomes the beneficial owner, directly or
indirectly of securities of the Corporation representing thirty percent (30%)
or more of the combined voting power of the Corporation's then outstanding
securities; (ii) as a result of, or in connection with, any tender offer or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Corporation before the
Transaction shall cease to constitute a majority of the Board of Directors of
the Corporation or any successor to the Corporation; (iii) the Corporation is
merged or consolidated with another corporation, and as a result of such
merger of consolidation less than seventy percent (70%) of the outstanding
voting securities of the surviving or resulting corporation shall then be
owned in the aggregate by the former stockholders of the Corporation, other
than (x) any party to such merger or consolidation, or (y) any affiliates to
any such party; (iv) a tender offer or exchange offer is made and consummated
for the ownership of securities
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of the Corporation representing thirty percent (30%) or more of the combined
voting power of the Corporation's then outstanding voting securities; or (v)
the Corporation transfers substantially all of its assets to another
corporation that is not a wholly-owned corporation of the Corporation.
(b) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the Proceeding in respect of
which indemnification is sought as provided in this Article VII.
(c) "Expenses" shall include all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection
with prosecuting, defending, preparing to prosecute or defend, investigating,
or being or preparing to be a witness in a Proceeding.
(d) "Independent Counsel" means a law firm, or a member of
a law firm, with substantial experience in matters of corporation law and
that neither presently is, nor in the five (5) years previous to his
selection or appointment has been, retained to represent: (i) the Corporation
or person claiming indemnification in any matter material to either, or (ii)
any other party to the Proceeding giving rise to a claim for indemnification
hereunder, and is not otherwise precluded under applicable professional
standards from acting in the capacity herein contemplated.
(e) "N.R.S." means the Nevada Revised Statutes.
ARTICLE VIII
ACTION UNDER NEVADA STATUTE
The provisions of Sections 78.378 to 78.3793, inclusive, of
the Nevada General Corporation Law do not apply to the acquisition by Noranda
Inc., an Ontario corporation ("Noranda"), or any person controlled by Noranda
or, to the extent any such person is deemed to be an acquiring person or a
person acting in concert with an acquiring person within the meaning of such
provisions, any person controlling Noranda at the time of such acquisition,
of up to 65,242,526 exchangeable shares ("Exchangeable Shares") of Battle
Mountain Canada Ltd., an Ontario corporation, or shares of common stock, par
value $0.10 per share ("Common Stock"), of the Corporation in the arrangement
referred to in the Combination Agreement dated as of March 11, 1996 by and
between the Corporation and Hemlo Gold Mines Inc., an Ontario corporation (to
be renamed Battle Mountain Canada Ltd.), as amended and restated (including
shares of Common Stock issuable upon exchange for such Exchangeable Shares).
The provisions of Sections 78.378 to 78.3793, inclusive, of
the Nevada General Corporation Law do not apply to the Corporation with
respect to the acquisition by Newmont Mining Corporation, a Delaware
corporation, ("Newmont"), or any person controlled by Newmont, or, to the
extent any such person is deemed to be an acquiring person or a person acting
in concert with an acquiring person within the meaning of such provisions,
any person controlling Newmont at the time of such acquisition, of the
outstanding shares of the Corporation in the arrangement referred to in the
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Agreement and Plan of Merger, dated as of June 21, 2000 among the
Corporation, Newmont and Bounty Merger Corp., a Nevada corporation and a
wholly-owned subsidiary of Newmont.
ARTICLE IX
AMENDMENTS
Subject to the provisions of the Articles of Incorporation,
these Bylaws may be altered, amended or repealed at any regular meeting of
stockholders (or at any special meeting thereof duly called for that purpose)
only by the affirmative vote of the holders of at least eighty percent (80%)
of the voting power of all shares of the Corporation represented at such
meeting and entitled to vote generally in the election of directors, voting
together as a class, provided that in the notice of any such special meeting
notice of such purpose shall be given. Subject to the laws of the State of
Nevada, the Articles of Incorporation and these Bylaws, the Board of
Directors may alter, amend or repeal these Bylaws, or enact such other Bylaws
as in their judgment may be advisable for the regulation of the conduct of
the affairs of the Corporation, by majority vote of those present at any
meeting of the Board of Directors at which a quorum is present (except so far
as Bylaws adopted by stockholders shall otherwise provide).
As amended through June 21, 2000
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