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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
Getchell Gold Corporation (formerly FirstMiss Gold Inc.)
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(Exact Name of registrant as specified in its charter)
Delaware 64-0748908
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
5460 South Quebec Street
Suite 240
Englewood, Colorado 80111
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to
Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, par value $.0001 per American Stock Exchange
share
Securities to be registered pursuant to
Section 12(g) of the Act:
None
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Item 1. Description of Registrant's Securities to be Registered.
The Company has authority to issue up to 50,000,000 shares of Common
Stock, par value $.0001 per share. The holders of Common Stock are entitled to
one vote per share on all matters to be voted on by stockholders, including the
election of directors. Stockholders are not entitled to cumulative voting
rights, and, accordingly, the holders of a majority of the shares voting for the
election of directors can elect the entire Board if they choose to do so and, in
that event, the holders of the remaining shares will not be able to elect any
person to the Board of Directors.
The holders of Common Stock are entitled to receive such dividends, if
any, as may be declared from time to time by the Board of Directors, in its
discretion, from funds legally available thereof and subject to prior dividend
rights of holders of any shares of preferred stock of the Company which may be
outstanding. Upon liquidation or dissolution of the Company subject to prior
liquidation rights of the holders of preferred stock of the Company, the holders
of Common Stock are entitled to receive on a pro rata basis the remaining assets
of the Company available for distribution. Holders of Common Stock have no
preemptive or other subscription rights, and there are no conversion rights or
redemption or sinking fund provisions with respect to such shares. KeyCorp
Shareholder Services, Inc. and the R-M Trust Company act as co-transfer agents
and registrars for the Common Stock.
Item 2. Exhibits.
The following exhibits are filed as part of this registration
statement*:
Exhibit
Number Exhibit Title or Description
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3(a) Registrant's Certificate of Incorporation.
3(b) Registrant's Bylaws.
4(a) Form of Specimen Certificate for Registrant's Common
Stock.
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* All exhibits required by Instruction II to Item 2 will be filed with the
American Stock Exchange.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Dated: June 18, 1996 GETCHELL GOLD CORPORATION
/s/ Donald S. Robson
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By: Donald S. Robson
Vice President
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GETCHELL GOLD CORPORATION
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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3(a) Registrant's Certificate of Incorporation.
3(b) Registrant's Bylaws.
4(a) Form of Specimen Certificate for Registrant's Common Stock.
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CERTIFICATE OF INCORPORATION
OF
GETCHELL GOLD CORPORATION
ARTICLE I
NAME
The name of the Corporation is Getchell Gold Corporation.
ARTICLE II
REGISTERED OFFICE AND AGENT FOR SERVICE
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
CORPORATE PURPOSES
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
CAPITAL STOCK
(1) SHARES, CLASSES AND SERIES AUTHORIZED.
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 60,000,000 shares. Stockholders
shall not have any preemptive rights, nor shall stockholders have the right to
cumulative voting in the election of directors or for any other purpose. The
classes and the aggregate number of shares of stock of each class which the
Corporation shall have authority to issue are as follows:
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A. 50,000,000 shares of Common Stock, $0.0001 par value ("Common
Stock").
B. 10,000,000 shares of Preferred Stock, $0.0001 par value
("Preferred Stock").
(2) POWERS AND RIGHTS OF THE PREFERRED STOCK.
The Preferred Stock may be issued from time to time in one or more
series, with such distinctive serial designations as may be stated or expressed
in the resolution or resolutions providing for the issue of such stock adopted
from time to time by the Board of Directors; and in such resolution or
resolutions providing for the issuance of shares of each particular series, the
Board of Directors is also expressly authorized to fix: the right to vote, if
any; the consideration for which the shares of such series are to be issued; the
number of shares constituting such series, which number may be increased (except
as otherwise fixed by the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time by action of the
Board of Directors; the rate of dividends upon which and the times at which
dividends on shares of such series shall be payable and the preference, if any,
which such dividends shall have relative to dividends on shares of any other
class or classes or any other series of stock of the Corporation; whether such
dividends shall be cumulative or noncumulative, and if cumulative, the date or
dates from which dividends on shares of such series shall be cumulative; the
rights, if any, which the holders of shares of such series shall have in the
event of any voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding up of the affairs of the
Corporation; the rights, if any, which the holders of shares of such series
shall have to convert such shares into or exchange such shares for shares of any
other class or classes or any other series of stock of the Corporation or for
any debt securities of the Corporation and the terms and conditions, including
price and rate of exchange, of such conversion or exchange; whether shares of
such series shall be subject to redemption, and the redemption price or prices
and other terms of redemption, if any, for shares of such series including,
without limitation, a redemption price or prices payable in shares of Common
Stock; the terms and amounts of any sinking fund for the purchase or redemption
of shares of such series; and any and all other designations, preferences, and
relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof pertaining to shares of such series
permitted by law.
(3) ISSUANCE OF THE COMMON STOCK AND THE PREFERRED STOCK.
The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance of any or all shares of the Common Stock
and the Preferred Stock herein authorized in accordance with the terms and
conditions set forth in this Certificate of Incorporation for such purposes, in
such amounts, to such persons, corporations or entities, for such consideration,
and in the case of the Preferred Stock, in one or more series, all as
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the Board of Directors in its discretion may determine and without any vote or
other action by the stockholders, except as otherwise required by law.
ARTICLE V
BOARD OF DIRECTORS
The governing board of the Corporation shall be known as directors,
and the number of directors may from time to time be increased or decreased in
such manner as shall be provided by the Bylaws of the Corporation, provided that
the number of directors may not be less than one nor more than fifteen. The
number of directors shall initially be two.
The names and addresses of the first board of directors are as
follows:
Name Address
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G. W. Thompson 5460 S. Quebec Street, Ste. 240
Englewood, Colorado 80111
Donald S. Robson 5460 S. Quebec Street, Ste. 240
Englewood, Colorado 80111
ARTICLE VI
CAPITAL STOCK NON-ASSESSABLE
The capital stock, after the amount of the subscription price, or par
value, has been paid in shall not be subject to assessment to pay the debts of
the Corporation.
ARTICLE VII
NAME AND ADDRESS OF INCORPORATOR
The name and address of the incorporator signing this Certificate of
Incorporation is Tad J. Freese, Latham & Watkins, 505 Montgomery Street, Suite
1900, San Francisco, California 94111.
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ARTICLE VIII
TERM OF EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE IX
POWERS OF BOARD OF DIRECTORS
(1) POWER OF THE BOARD OF DIRECTORS. The property and business of
the Corporation shall be controlled and managed by or under the direction of its
Board of Directors. In furtherance, and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized:
(a) To make, alter, amend or repeal the Bylaws of the
Corporation; PROVIDED, THAT no Bylaws hereafter adopted shall invalidate any
prior act of the Directors that would have been valid if such Bylaws had not
been adopted;
(b) To determine the rights, powers, duties, rules and
procedures that affect the power of the Board of Directors to manage and direct
the property, business and affairs of the Corporation, including the power to
designate and empower committees of the Board of Directors, to elect, appoint
and empower the officers and other agents of the Corporation, and to determine
the time and place of, and the notice requirements for Board meetings, as well
as the manner of taking Board action; and
(c) To exercise all such powers and do all such acts as may be
exercised by the Corporation, subject to the provisions of the laws of the State
of Delaware, this Certificate of Incorporation, and the Bylaws of the
Corporation.
ARTICLE X
CERTIFICATE SUBJECT TO AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute or by the Certificate of Incorporation, and
except as otherwise provided by this Certificate of Incorporation, all rights
conferred upon stockholders herein are granted subject to this reservation.
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ARTICLE XI
INDEMNIFICATION
(1) ACTION NOT BY OR ON BEHALF OF CORPORATION. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he 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,
against expenses (including attorneys' fees), fees, judgments, fines, and
amounts paid in settlement, actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in, good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the Corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, does not, of itself, create a
presumption that the person 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, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) ACTION BY OR ON BEHALF OF CORPORATION. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he 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 against expenses, including amounts paid in settlement and attorneys'
fees actually and reasonably incurred by him in connection with the defense or
settlement of the action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that indemnification may not be made for any claim, issue or
matter as to which a such a person shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the Corporation or for amounts paid in settlement to the Corporation unless
and only to the extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application that, in view
of all of the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
(3) SUCCESSFUL DEFENSE. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 1
or 2 of this Article XI, or in defense of
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any claim, issue or matter therein, he must be indemnified by the Corporation
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense.
(4) DETERMINATION OF RIGHT TO INDEMNIFICATION IN CERTAIN
CIRCUMSTANCES. Any indemnification under Section 1 or 2 of this Article XI,
unless ordered by a court or advanced pursuant to this Article XI, must be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officers employee or agent is proper in
the circumstances. The determination must be made by the Stockholders, the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to the act, suit or proceeding, or if a majority vote of a
quorum of directors who were not parties to the act, suit or proceeding so
orders, by independent legal counsel in a written opinion, or if a quorum
consisting of directors who were not parties to the act, suit or proceeding
cannot be obtained, by independent legal counsel in a written opinion.
(5) ADVANCE PAYMENT OF EXPENSES. Expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the Corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the Corporation as authorized in this Article. The provisions of
this subsection (5) of this Article XI shall not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
(6) NOT EXCLUSIVE.
(a) The indemnification and advancement of expenses authorized
in or ordered by a court pursuant to any other section of this Article XI or any
provision of law:
(i) does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation or any statute, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his official capacity or an action in another capacity while holding his office,
except that indemnification, unless ordered by a court pursuant to subsection 2
of this Article XI or for the advancement of expenses made pursuant to this
Article XI may not be made to or on behalf of any director or officer if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action.
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(ii) continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
(b) Without limiting the foregoing, the Corporation is
authorized to enter into an agreement with any director, officer, employee or
agent of the Corporation providing indemnification for such person against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement that result from any threatened, pending or completed action, suit,
or proceeding, whether civil, criminal, administrative or investigative,
including any action by or in the right of the Corporation, that arises by
reason of the fact that such person 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, to the full extent allowed by law,
except that no such agreement shall provide for indemnification for any actions
that constitute fraud, actual dishonesty or willful misconduct.
(7) INSURANCE. The Corporation may purchase and maintain insurance
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 asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article XI.
(8) CERTAIN DEFINITIONS. For the purposes of this Article XI, (a)
any director, officer, employee or agent of the Corporation who shall serve as a
director, officer, employee or agent of any other corporation, joint venture,
trust or other enterprise of which the Corporation, directly or indirectly, is
or was a stockholder or creditor, or in which the Corporation is or was in any
way interested, or (b) any director, officer, employee or agent of any
subsidiary corporation, joint venture, trust or other enterprise wholly owned by
the Corporation, shall be deemed to be serving as such director, officer,
employee or agent at the request of the Corporation, unless the Board of
Directors of the Corporation shall determine otherwise. In all other instances
where any person shall serve as a director, officer, employee or agent of
another corporation, joint venture, trust or other enterprise of which the
Corporation is or was a stockholder or creditor, or in which it is or was
otherwise interested, if it is not otherwise established that such person is or
was serving as such director, officer, employee or agent at the request of the
Corporation, the Board of Directors of the Corporation may determine whether
such service is or was at the request of the Corporation, and it shall not be
necessary to show any actual or prior request for such service. For purposes of
this Article XI, references to a corporation include all constituent
corporations absorbed in a consolidation or merger as well as the resulting or
surviving corporation so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was serving at the
request of such constituent corporation as a
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director, officer, employee or agent of another corporation, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article XI with respect to the resulting or surviving corporation as he
would if he had served the resulting or surviving corporation in the same
capacity. For purposes of this Article XI, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation 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; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
XI.
ARTICLE XII
LIMITATION ON PERSONAL LIABILITY FOR
DIRECTORS
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of a fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended hereafter
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE XIII
SUPERMAJORITY VOTE
(1) Except as set forth in Section (2) of this Article XIII, the
affirmative vote of the holders of shares representing at least eighty percent
of all classes of stock of the Corporation entitled to vote in the election of
directors, considered for the purposes of this Article XIII as one class, shall
be required to effect:
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(a) any merger or consolidation of the Corporation or any of its
subsidiaries with or into any other corporation, or
(b) any sale, lease, exchange or other disposition of all or
substantially all of the property and assets of the Corporation or any of
its subsidiaries to or with any other corporation, person or other entity,
or
(c) any sale, lease, exchange or other disposition to the Corporation
or any of its subsidiaries of any assets, cash, securities or other
property of any other corporation, person or other entity in exchange for
securities of the Corporation or any of its subsidiaries.
Such affirmative vote, as provided in this Article XIII, shall be in lieu
of any lesser vote of the holders of the stock of the Corporation otherwise
provided by law or any agreement or contract to which the Corporation is a
party, and shall be in addition to any class vote to which any class of stock of
the Corporation may be entitled.
(2) The provisions of this Article XIII shall not apply to any
transaction described in clauses (a), (b) or (c) of Section 1 of this Article
XIII if:
(a) the Board of Directors of the Corporation shall have approved (by
resolution adopted by two-thirds vote of all directors), such transaction,
or
(b) a majority of the outstanding shares of stock of such other
corporation is owned of record or beneficially, directly or indirectly, by
the Corporation or its subsidiaries.
(3) For the purpose of this Article XIII, the term "substantially all
of the property and assets of the Corporation or any of its subsidiaries"
shall mean those properties and assets involved in any single transaction
or series of related transactions having an aggregate fair market value of
more than a majority of the total consolidated assets of the Corporation
and its subsidiaries as reflected on the most recent consolidated balance
sheet of the Corporation; and the term "subsidiary" shall mean any
corporation more than fifty percent of the voting securities of which are
owned directly or indirectly by the Corporation.
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ARTICLE XIV
AMENDMENT OF SUPERMAJORITY VOTE
Notwithstanding any other provision of this Certificate or the
Corporation's Bylaws to the contrary, (i) no amendment to the Certificate of
Incorporation of the Corporation shall amend, repeal or adopt any provision
inconsistent with any of the provisions of this Article XIV or Article XIII, or
the provision denying cumulative voting contained in Article IV, Section 1, or
Article V of this Certificate of Incorporation, and (ii) no Amendment to the
Bylaws of the Corporation shall amend, repeal or adopt any provision
inconsistent with Article II, Section 2, Article II, Section 3, Article III,
Section 2, Article III, Section 3, Article III, Section 4, Article V, Section 8
or Article II, Section 9 (when and if such Section is effective) of the Bylaws,
unless in any such case the amendment effecting such amendment, repeal or
adoption of inconsistent provisions shall receive the affirmative Vote of at
least eighty percent of all the classes of stock of the Corporation entitled to
vote in the election of directors, considered for the purposes of this Article
XIV as one class.
ARTICLE XV
CLASSIFICATION OF BOARD OF DIRECTORS
The Board of Directors shall be divided into three classes to be
designated as follows: Class 1, Class 2 and Class 3, each of which shall be as
nearly equal in number as possible. Each Director shall serve for a term ending
on the date of the third annual meeting of stockholders following the meeting at
which such Director was elected; provided, however, that each initial Director
in Class 1 shall hold office until the annual meeting of stockholders in 1997;
each initial Director in Class 2 shall hold office until the annual meeting of
stockholders in 1998; and each initial Director in Class 3 shall hold office
until the annual meeting of stockholders held in 1999.
In the event of any increase or decrease in the authorized number of
Directors: (a) each Director then serving as such shall nevertheless continue
as a Director of the class of which he is a member until the expiration of his
current term, or his earlier resignation, removal from office or death, and (b)
the newly created or eliminated directorships resulting from such increase or
decrease shall be apportioned by the Board of Directors (which is in existence
immediately prior to such an increase or decrease) among the three classes of
Directors so as to maintain such classes as nearly equal as possible.
Notwithstanding the foregoing, each Director shall hold office until his
successor is elected and qualified.
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BYLAWS OF
GETCHELL GOLD CORPORATION
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the
Corporation shall be at 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its resident agent at such address is The Corporation
Trust Company.
Section 2. OTHER OFFICES. Other offices may be established by the
Board of Directors at any place or places, within or without the State of
Delaware, as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall be
held either at the principal executive office or any other place within or
without the State of Delaware which may be designated either by the Board of
Directors pursuant to authority hereinafter granted to said Board, or by the
written consent of all stockholders entitled to vote thereat, given either
before or after the meeting and filed with the Secretary of the Corporation;
provided, however, that if no place is designated or so fixed, stockholder
meetings shall be held at the principal executive office of the Corporation.
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Section 2. ANNUAL MEETINGS. The annual meetings of the
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At the annual meeting of stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To
be properly brought before an annual meeting, business must be specified in the
Notice of Meeting given by or at the direction of the Board of Directors,
otherwise properly brought before the meeting by or at the direction of the
Board of Directors or otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before the annual meeting by a
stockholder, including the nomination of a director, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to, or mailed and received
at, the principal executive offices of the Corporation not more than five
business days after the giving of notice of the date and place of the meeting to
the stockholders. A stockholder's notice to the Secretary shall inform 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, (ii)
the name and record address of the stockholder proposing such business, (iii)
the class and numbers of shares of the Corporation which are beneficially owned
by the stockholder and (iv) any material interest of the stockholder in such
business. Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section. The chairman of the annual meeting shall,
if the facts warrant, determine and declare to the meeting that business was not
properly brought before the
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meeting in accordance with the provisions of this Section, and if he should so
determine, he shall so declare to the meeting and any such business not properly
before the meeting shall not be transacted.
Section 3. SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose or purposes whatsoever, may be called at any time
by the Chairman of the Board, the President or by a majority of the Board of
Directors, or by such other person as the Board of Directors may designate. For
business to be properly brought before a special meeting by a stockholder,
including the nomination of a director, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to, or mailed and received at, the
principal executive offices of the Corporation not more than five business days
after the giving of notice of the date and place of the meeting to the
stockholders. A stockholder's notice to the Secretary shall inform as to each
matter the stockholder proposes to bring before a special meeting (i) a brief
description of the business desired to be brought before the special meeting and
the reasons for conducting such business at the special meeting, (ii) the name
and record address of the stockholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder and (iv) any material interest of the stockholder in such business.
Section 4. NOTICE OF STOCKHOLDERS' MEETINGS. Written notice of
each annual or special meeting signed by the President or a Vice President, or
the Secretary, or an Assistant Secretary, or by such other person or persons as
the Directors shall designate, shall be delivered personally to, or shall be
mailed postage prepaid, to each
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stockholder of record entitled to vote at such meeting. If mailed, the notice
shall be directed to the stockholder at his address as it appears upon the
records of the Corporation, and service of such notice by mail shall be complete
upon such mailing, and the time of the notice shall begin to run from the date
it is deposited in the mail for transmission to such stockholder. Personal
delivery of any such notice to any officer of a corporation or association, or
to any member of a partnership, shall constitute delivery of such notice to such
corporation, association or partnership. All such notices shall be delivered or
sent to each stockholder entitled thereto not less than ten nor more than sixty
days before each annual or special meeting, and shall specify the purpose or
purposes for which the meeting is called, the place, the day and the hour of
such meeting.
Any stockholder may waive notice of any meeting by a writing signed by
him, or his duly authorized attorney, either before or after the meeting.
Section 5. VOTING. At all meetings of stockholders, every
stockholder entitled to vote shall have the right to vote in person or by
written proxy the number of shares standing in his own name on the stock records
of the Corporation. There shall be no cumulative voting. Such vote may be viva
voce or ballot; provided, however, that all elections for Directors must be by
ballot upon demand made by a stockholder at any election and before the voting
begins.
Section 6. QUORUM. The presence in person or by proxy of the
holders of a majority of the shares entitled to vote 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
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withdrawal of enough stockholders to leave less than a quorum.
Section 7. RATIFICATION AND APPROVAL OF ACTIONS AT MEETINGS.
Whenever the stockholders entitled to vote at any meeting consent, either by:
(a) A writing on the records of the meeting or filed with the
Secretary;
(b) Presence at such meeting and oral consent entered on the minutes;
or
(c) Taking part in the deliberations at such meeting without
objection; the doings of such meeting shall be as valid as if had at a meeting
regularly called and noticed. At such meeting, any business may be transacted
which is not excepted from the written consent or to the consideration of which
no objection for want of notice is made at the time. If any meeting be
irregular for want of notice or of such consent, provided a quorum was present
at such meeting, the proceedings of the meeting may be ratified and approved and
rendered likewise valid and the irregularity or defect therein waived by a
writing signed by all parties having the right to vote at such meeting. Such
consent or approval of stockholders may be by proxy or attorney, but all such
proxies and powers of attorney must be in writing.
Section 8. PROXIES. At any meeting of the stockholders, any
stockholder may be represented and vote by a proxy or proxies appointed by an
instrument in writing, which instrument shall be filed with the Secretary of the
Corporation. In the event that any such instrument in writing shall designate
two or more persons to act as proxies, a majority of such persons present at the
meetings, or, if only one shall be present, then that one shall have and may
exercise all of the powers conferred by such written instrument upon all of the
persons so designated unless the instrument shall otherwise provide. No such
proxy shall be
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valid after the expiration of six months from the date of its execution, unless
coupled with an interest, or unless the person executing it specifies therein
the length of time for which it is to continue in force, which in no case shall
exceed seven years from the date of its execution. Subject to the above, any
proxy duly executed is not revoked and continues in full force and effect until
an instrument revoking it or a duly executed proxy bearing a later date is filed
with the Secretary of the Corporation.
Section 9. ACTION WITHOUT A MEETING. Any action which may be
taken by the vote of stockholders at a meeting, may be taken without a meeting
if authorized by the written consent of stockholders holding at least a majority
of the voting power; provided that if any greater proportion of voting power is
required for such action at a meeting, then such greater proportion of written
consents shall be required. This general provision for action by written
consent shall not supersede any specific provision for action by written consent
contained in the Delaware General Corporation Law. In no instance where action
is authorized by written consent need a meeting of stockholders be called or
noticed.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to limitations of the Certificate of
Incorporation, these Bylaws, and the provisions of the Delaware General
Corporation Law as to action to be authorized or approved by the stockholders,
and subject to the duties of Directors as prescribed by these Bylaws, all
corporate powers shall be exercised by or under
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the authority of, and the business and affairs of the Corporation must be
managed and controlled by, the Board of Directors. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the Directors shall have the following powers:
First - To select and remove all officers, agents and employees of the
Corporation, prescribe such powers and duties for them as may not be
inconsistent with law, the Certificate of Incorporation or the Bylaws, fix their
compensation and require from them security for faithful service.
Second - To conduct, manage and control the affairs and business of
the Corporation, and to make such rules and regulations therefor not
inconsistent with law, the Certificate of Incorporation or the Bylaws, as they
may deem best.
Third - To change the registered office of the Corporation in the
State of Delaware from one location to another, and the registered agent in
charge thereof, as provided in Article I, Section 1, hereof; to fix and locate
from time to time one or more subsidiary offices of the Corporation within or
without the State of Delaware, as provided in Article I, Section 2, hereof, to
designate any place within or without the State of Delaware, for the holding of
any stockholders' meeting or meetings; and to adopt, make and use a corporate
seal, and to prescribe the forms of certificates of stock, and to alter the form
of such seal and of such certificates from time to time, as in their judgment
they may deem best, provided such seal and such certificates shall at all times
comply with the provisions of law.
Fourth - To authorize the issuance of shares of stock of the
Corporation from
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time to time, upon such terms as may be lawful, in consideration of cash,
services rendered, personal property, real property or leases thereof, or in the
case of shares issued as a dividend, against amounts transferred from surplus to
capital.
Fifth - To borrow money and incur indebtedness for the purpose of the
Corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidence of debt and securities therefor.
Sixth - To make the Bylaws of the Corporation, subject to the Bylaws,
if any, adopted by the stockholders.
Seventh - To, by resolution or resolutions passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more of the Directors of the Corporation, which, to the extent provided in
the resolution or resolutions, shall have and may exercise the powers of the
Board of Directors in the management of the business and affairs of the
Corporation, and may have power to authorize the seal of the Corporation to be
affixed to all papers on which the Corporation desires to place a seal. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The number of
Directors constituting the whole Board shall be not less than one nor more than
fifteen. The first Board shall consist of two directors. Thereafter, within
the limits above specified, the number of Directors shall be determined by
resolution of the Board of Directors or by the stockholders at the annual
meeting. All directors must be at least 18
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years of age. Unless otherwise provided in the Certificate of Incorporation,
directors need not be stockholders. No person shall be elected to serve on the
board of directors after attaining sixty-nine years of age.
Section 3. ELECTION, CLASSIFICATION AND TERM OF OFFICE. The
Directors shall be elected at each annual meeting of stockholders by a plurality
of votes cast at the election, but if for any reason the Directors are not
elected at the annual meeting of stockholders, the Directors may be elected at
any special meeting of stockholders by a plurality of votes cast at the
election.
The Board of Directors shall be divided into three classes to be
designated as follows: Class 1, Class 2 and Class 3, each of which shall be as
nearly equal in number as possible. Each Director shall serve for a term ending
on the date of the third annual meeting of stockholders following the meeting at
which such Director was elected; provided, however, that each initial Director
in Class 1 shall hold office until the annual meeting of stockholders in 1997;
each initial Director in Class 2 shall hold office until the annual meeting of
stockholders in 1998; and each initial Director in Class 3 shall hold office
until the annual meeting of stockholders in 1999.
In the event of any increase or decrease in the authorized number of
Directors: (a) each Director then serving as such shall nevertheless continue
as a Director of the class of which he is a member until the expiration of his
current term, or his earlier resignation, removal from office or death, and (b)
the newly created or eliminated directorships resulting from such increase or
decrease shall be apportioned by the Board of Directors (which is in existence
immediately prior to such an increase or decrease) among the three classes of
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Directors so as to maintain such classes as nearly equal as possible.
Notwithstanding the foregoing, each Director shall hold office until his
successor is elected and qualified.
Section 4. VACANCIES. Vacancies 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 at an annual or a special meeting of the
stockholders.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in case of the death, resignation or removal of any Director, or if the
authorized number of Directors be increased.
If the Board of Directors accepts the resignation of a Director
tendered to take effect at a future time, the Board or the stockholder shall
have power to elect a successor to take office when the resignation is to become
effective, and such successor shall hold office during the remainder of the
resigning Director's term of office.
Section 5. PLACE OF MEETING. Regular meetings of the Board of
Directors shall be held at any place within or without the State of Delaware as
designated from time to time by resolution of the Board or by written consent of
all members of the Board. In the absence of such designation regular meetings
shall be held at the principal executive office of the Corporation. Special
meetings of the Board may be held either at a place so designated or at the
principal executive office.
Members of the Board, or any committee designated by the Board, may
participate in a meeting of such Board or committee by means of a conference
telephone network or a similar communications method by which all persons
participating in the
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meeting can hear each other. Such participation shall constitute presence in
person at such meeting. Each person participating in such meeting shall sign
the minutes thereof, which minutes may be signed in counterparts.
Section 6. ORGANIZATION MEETING. Immediately following each
annual meeting of stockholders, the Board of Directors shall hold a regular
meeting for the purpose of organization, election of officers, and the
transaction of other business. Notice of such meetings is hereby dispensed
with.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of
Directors for any purpose or purposes may be called at any time by the President
or by any two or more Directors.
Written notice of the time and place of special meetings shall be
delivered personally to the Directors or sent to each Director by mail or other
form of written communication (such as by telegraph, Federal Express package, or
other similar forms of written communication), charges prepaid, addressed to him
at his address as it is shown upon the records of the Corporation, or if it is
not so shown on such records or is not readily ascertainable, at the place in
which the meetings of the Directors are regularly held. In case such notice is
mailed or otherwise communicated in writing, it shall be deposited in the United
States mail or delivered to the appropriate delivering agent at least seventy-
two hours prior to the time of the holding of the meeting. In case such notice
is personally delivered, it shall be so delivered at least twenty-four hours
prior to the time of the holding of the meeting. Such mailing, personal
delivery or other written communication as above provided shall be due, legal
and personal notice to such Director.
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Section 8. NOTICE OF ADJOURNMENT. Notice of the time and place of
holding an adjourned meeting need not be given to absent Directors if the time
and place be fixed at the meeting adjourned.
Section 9. RATIFICATION AND APPROVAL. Whenever all Directors
entitled to vote at any meeting consent, either by: (a) A writing on the records
of the meeting or filed with the Secretary; (b) Presence at such meeting and
oral consent entered on the minutes; or (c) Taking part in the deliberations at
such meeting without objection; the doings of such meeting shall be as valid as
if had at a meeting regularly called and noticed. At such meeting any business
may be transacted which is not excepted from the written consent or to the
consideration of which no objection for want of notice is made at the time.
If any meeting be irregular for want of notice or of such consent,
provided a quorum was present at such meeting, the proceedings of the meeting
may be ratified and approved and rendered likewise valid and the irregularity or
defect therein waived by a writing signed by all Directors having the right to
vote at such meeting.
Section 10. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent thereto is
signed by all the members of the Board or of such committee. Such written
consent shall be filed with the minutes of proceedings of the Board or
committee.
Section 11. QUORUM. A majority of the authorized number of
Directors shall be necessary to constitute a quorum for the transaction of
business, except to adjourn as hereinafter provided. Every act or decision done
or made by a majority of the Directors
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present at a meeting duly assembled at which a quorum is present shall be
regarded as the act of the Board of Directors, unless a greater number be
required by law or by the Certificate of Incorporation.
Section 12. ADJOURNMENT. A quorum of the Directors may adjourn any
Directors' meeting to meet again at a stated day and hour provided, however,
that in the absence of a quorum, a majority of the Directors present at any
Directors' meeting, either regular or special, may adjourn from time to time
until a quorum shall be present.
Section 13. FEES AND COMPENSATION. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at each meeting of the Board and may be paid a
fixed sum for attendance at each meeting of the Board or a stated salary as
Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity as an officer, agent, employee or otherwise,
and receiving the compensation therefor. Members of committees may be
compensated for attending committee meetings.
Section 14. REMOVAL. Any Director may be removed from office with
or without cause by the vote of stockholders representing not less than two-
thirds of the issued and outstanding capital stock entitled to voting power.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a
President, a Secretary and a Treasurer. The Corporation may also have, at the
discretion of
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the Board of Directors, one or more additional Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, a Chairman of the
Board, and such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article. Officers other than the Chairman of
the Board need not be Directors. One person may hold two or more offices.
Section 2. ELECTION. The officers of this Corporation, except
such officers as may be appointed in accordance with the provisions of Section 3
or Section 5 of this Article, shall be chosen annually the Board of Directors
and each shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve, or his successor shall be elected and
qualified.
Section 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may
appoint such other officers as the business of the Corporation may require, each
of whom shall hold office for such period, have such authority and perform such
duties as are provided in these Bylaws or as the Board of Directors may from
time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed,
either with or without cause, by a majority of the Directors at the time in
office. Any officer may resign at any time by giving written notice to the
Board of Directors, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 5. VACANCIES. A vacancy in any office because of death,
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resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for regular appointments to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if
there be such a position, shall preside at all meetings of the Board of
Directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by these
Bylaws.
Section 7. PRESIDENT. Subject to such supervisory powers, if any,
as may be given by the Board of Directors to the Chairman of the Board, the
President shall be the chief executive officer of the Corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the Corporation. He shall
preside at all meetings of the stockholders and in the absence of the Chairman
of the Board, or if there be none, at all meetings of the Board of Directors.
He shall be ex officio a member of all committees, including the executive
committee, if any, and shall have the general powers and duties of management
usually vested in the office of president of a corporation, and shall have such
other powers and duties as may be prescribed by the Board of Directors or by
these Bylaws.
Section 8. VICE PRESIDENT. In the absence or disability of the
President, the Vice Presidents, in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and
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perform such other duties as from time to time may be prescribed for them
respectively by the Board of Directors or these Bylaws.
Section 9. SECRETARY. The Secretary shall keep, or cause to be
kept, a book of minutes at the principal executive office or such other place as
the Board of Directors may order, of all meetings of Directors, committees and
stockholders, with the time and place of holding, whether regular or special,
and if special, how authorized, the notice thereof given, the names of those
present at Directors' and committee meetings, the number of shares present or
represented at stockholders' meetings and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal
executive office (1) a share register, or a duplicate share register, revised
annually, showing the names of the stockholders, alphabetically arranged, and
their places of residence, the number and classes of shares held by each, the
number and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation; (2) a copy of
the Certificate of Incorporation and all amendments thereto certified by the
Secretary of State; and (3) a copy of the Bylaws and all amendments thereto
certified by the Secretary.
The Secretary shall give, or cause to be given, notice of all the
meetings of the stockholders, committees and Board of Directors required by the
Bylaws or by law to be given, and he shall keep the seal of the Corporation in
safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the Board of Directors or the Bylaws.
Section 10. TREASURER. The Treasurer shall keep and maintain, or
cause
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to be kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of stated capital, shall be classified according to
source and shown in a separate account. The books of account shall at all times
be open to inspection by any Director.
The Treasurer shall deposit all monies and other valuables in the name
and to the credit of the Corporation with such depositories as may be designated
by the Board of Directors. He shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, shall render to the President and
Directors, whenever they request it, an account of all of his transactions as
Treasurer and of the financial condition of the Corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or the Bylaws.
ARTICLE V
MISCELLANEOUS
Section 1. RECORD DATE AND CLOSING STOCK BOOKS. The Board of
Directors may fix a day, not more than sixty (60) days prior to the holding
of any meeting of stockholders, and not less than ten (10) nor exceeding
thirty (30) days preceding the date fixed for the payment of any dividend or
distribution or for the allotment of rights, or when any change or conversion
or exchange of shares shall go into effect, as a record date for the
determination of the stockholders entitled to notice of and to vote at any
such meeting, or entitled to
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receive any such dividend or distribution, or any such allotment of rights, or
to exercise the rights in respect to any such change, conversion or exchange of
shares, and in such case only stockholders of record on the date so fixed shall
be entitled to notice of and to vote at such meetings, or to receive such
dividend, distribution or allotment of rights, or to exercise such rights, as
the case may be, notwithstanding any transfer of any shares on the books of the
Corporation after any record date is fixed as aforesaid.
Section 2. INSPECTION OF CORPORATE RECORDS. Stockholders shall
have the right to inspect such corporate records at such times and based upon
such limitations of such rights as may be set forth in the Delaware General
Corporation Law from time to time.
Section 3. CHECKS, DRAFTS, ETC. All checks, drafts or other
orders for payment of money, notes or other evidences of indebtedness, issued in
the name of or payable to the Corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board of Directors.
Section 4. ANNUAL REPORT. The Board of Directors of the
Corporation may cause an annual report to be made available to the stockholders
not later than one hundred twenty (120) days after the close of the fiscal or
calendar year.
Section 5. CONTRACT, ETC., HOW EXECUTED. The Board of Directors,
except as otherwise provided in these Bylaws may authorize any officer or
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officers, agent or agents to enter into any contract, deed or lease or execute
any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances; and unless so
authorized by the Board of Directors, no officer, agent or employee shall have
any power or authority to bind the Corporation by any contract or engagement or
to pledge its credit to render it liable for any purpose or to any amount.
Section 6. CERTIFICATES OF STOCK. A certificate or certificates
for certificated shares of the capital stock of the Corporation shall be issued
to each stockholder when any such shares are fully paid up. All such
certificates shall be signed by the President or a Vice President, and by the
Secretary or an Assistant Secretary, or be authenticated by facsimiles of their
respective signatures; provided, however, that every certificate authenticated
by a facsimile of a signature must be countersigned by a transfer agent or
transfer clerk, and by a registrar, which registrar cannot be the Corporation
itself.
Certificates for certificated shares may be issued prior to full
payment under such restrictions and for such purposes as the Board of Directors
or the Bylaws may provide; provided, however, that any such certificate so
issued prior to full payment shall state the amount remaining unpaid and the
terms of payment thereof.
The Board of Directors is hereby authorized, pursuant to the
provisions of Delaware General Corporation Law Section 158, to issue
uncertificated shares of some or all of the shares of any or all of its classes
or series.
Section 7. REPRESENTATION OF THE SHARES OF OTHER CORPORATION. The
President or any Vice President, and the Secretary or Assistant Secretary, of
this Corporation are authorized to vote, represent and exercise on behalf of
this Corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this Corporation. The
authority herein granted to said officers to vote or represent on behalf of this
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Corporation any and all shares held by this Corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
person authorized so to do by proxy or power of attorney duly executed by said
officers.
ARTICLE VI
AMENDMENTS
Section 1. POWER OF STOCKHOLDERS. New Bylaws may be adopted or
these Bylaws may be amended or repealed by the vote of stockholders entitled to
exercise a majority of the voting power of the Corporation or by the written
assent of such stockholders.
Section 2. POWER OF DIRECTORS. Subject to the right of
stockholders as provided in Section 1 of this Article VI to adopt, amend or
repeal Bylaws, Bylaws may be adopted, amended or repealed by the Board of
Directors.
ARTICLE VII
TRANSACTIONS INVOLVING DIRECTORS AND OFFICERS
Section 1. VALIDITY OF CONTRACTS AND TRANSACTIONS. No contract or
transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any other corporation, firm,
association, or other
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organization in which one or more of its Directors or officers are Directors or
officers or are financially interested, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee that
authorizes or approves the contract or transaction, or because their votes are
counted for such purpose, provided that:
(a) the material facts as to his, her, or their relationship or
interest and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee and noted in the minutes, and
the Board of Directors or committee, in good faith, authorizes the contract
or transaction in good faith by the affirmative vote of a majority of
disinterested directors, even though the disinterested directors are less
than a quorum;
(b) the material facts as to his, her, or their relationship or
interest and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved or ratified in good faith by the
majority of shares entitled to vote, counting the votes of the common or
interested directors or officers; or
(c) the contract or transaction is fair as to the Corporation as
of the time it is authorized or approved.
Section 2. DETERMINING QUORUM. Common or interested directors may
be counted in determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes, approves or ratifies the contract
or transaction.
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ARTICLE VIII
INSURANCE AND OTHER FINANCIAL ARRANGEMENTS. 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 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. The insurance or other financial arrangements may be provided by the
Corporation or by any other person or entity approved by the Board of Directors
including a subsidiary of the corporation.
Such 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; or
(d) The establishment of a letter of credit, guaranty or surety.
No financial arrangement 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
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expenses or indemnification ordered by a court as provided in Article IX hereof.
ARTICLE IX
INDEMNIFICATION
Section 1. ACTION NOT BY OR ON BEHALF OF CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
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, against expenses (including attorneys' fees), fees, judgments,
fines, and amounts paid in settlement, actually and reasonably incurred by him
in connection with the action, suit or proceeding if he acted in good faith and
in a manner reasonably believed to be in or not opposed to the best interests of
the Corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent does not, of itself, create an
presumption that the person 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, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. ACTION BY OR ON BEHALF OF CORPORATION. The
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Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he 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 against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, except that indemnification may not be made
for any claim, issue or matter as to which such a person shall have been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation or for amounts paid in settlement to
the Corporation, unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction determines
upon application that, in view of all of the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
Section 3. SUCCESSFUL DEFENSE. To the extent that a Director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
1 or 2 of this Article IX, or in defense of any claim, issue or matter therein,
he must be indemnified by the Corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense.
24
<PAGE>
Section 4. DETERMINATION OF RIGHT TO INDEMNIFICATION IN CERTAIN
CIRCUMSTANCES. Any indemnification under Section I or 2 of this Article IX,
unless ordered by a court or advanced pursuant to this Article IX, must be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the Director, officer, employee or agent is proper in
the circumstances. The determination must be made by the Stockholders, the
Board of Directors by a majority vote of a quorum consisting of Directors who
were not parties to the act, suit or proceeding, or if a majority vote of a
quorum of Directors who were not parties to the act, suit or proceeding so
orders, by independent legal counsel in a written opinion, or if a quorum
consisting of directors who were not parties to the act, suit or proceeding
cannot be obtained, by independent legal counsel in a written opinion.
Section 5. ADVANCE PAYMENT OF EXPENSES. Expenses of officers and
Directors incurred in defending a civil or criminal action, suit or proceeding
must be paid by the Corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding upon receipt of an undertaking by
or on behalf of the Director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the Corporation as authorized in this Article. The provisions of
this subsection (5) of this Article IX shall not effect any rights to
advancement of expenses to which corporate personnel other than Directors or
officers may be entitled under any contract or otherwise by law.
Section 6. NOT EXCLUSIVE.
(a) The indemnification and advancement of expenses authorized in
or
25
<PAGE>
ordered by a court pursuant to any other section of this Article IX or any
provision of law:
(i) does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be entitled
under the Certificate of Incorporation or any statute, bylaw,
agreement, vote of stockholders or disinterested Directors or
otherwise, for either an action in his official capacity or an action
in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to subsection 2 of
this Article IX or for the advancement of expenses made pursuant to
this Article IX may not be made to or on behalf of any Director or
officer if a final adjudication establishes that his acts or omissions
involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action; and
(ii) continues for a person who has ceased to be a Director,
officer, employee or agent and inures to the benefit of the heirs,
executors and administrators of such a person.
(b) Without limiting the foregoing, the Corporation is
authorized to enter into an agreement with any Director, officer, employee
or agent of the Corporation providing indemnification for such person
against expenses, including attorneys' fees, judgments, fines and amounts
paid in settlement that result from any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, including any action by or in the right of the
26
<PAGE>
Corporation, that arises by reason of the fact that such person 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, to the full extent allowed by law, except that no such
agreement shall provide for indemnification for any actions that constitute
intentional misconduct, fraud, or a knowing violation of law and was
material to the cause of action.
Section 7. CERTAIN DEFINITIONS. For the purposes of this Article
IX, (a) any Director, officer, employee or agent of the Corporation who shall
serve as a director, officer, employee or agent of any other corporation, joint
venture, trust or other enterprise of which the Corporation, directly or
indirectly, is or was a stockholder or creditor, or in which the Corporation is
or was in any way interested, or (b) any Director, officer, employee or agent of
any subsidiary corporation, joint venture, trust or other enterprise wholly
owned by the Corporation, shall be deemed to be serving as such Director,
officer, employee or agent at the request of the Corporation, unless the Board
of Directors of the Corporation shall determine otherwise. In all other
instances where any person shall serve as director, officer, employee or agent
of another corporation, joint venture, trust or other enterprise of which the
Corporation is or was a stockholder or creditor, or in which it is or was
otherwise interested, if it is not otherwise established that such person is or
was serving as such director, officer, employee or agent at the request of the
Corporation, the Board of Directors of the Corporation may determine whether
such service is or was at the request of the Corporation, and it shall not be
necessary to show any actual or prior request for such
27
<PAGE>
service. For purposes of this Article IX references to a corporation include
all constituent corporations absorbed in a consolidation or merger as well as
the resulting or surviving corporation so that any person who is or was a
director, officer, employee or agent of such a constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, joint venture, trust or other
enterprise shall stand in the same position under the provisions of this Article
IX with respect to the resulting or surviving corporation as he would ff he had
served the resulting or surviving corporation in the same capacity. For
purposes of this Article IX, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references to
"serving at the request of the corporation" shall include any service as a
Director, officer, employee or agent of the Corporation 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; and a person
who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article IX.
28
<PAGE>
NUMBER GETCHELL GOLD SHARES
G CORPORATION
COMMON STOCK SEE REVERSE FOR CERTAIN
DEFINITIONS
CUSIP 374265 10 6
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE IN CLEVELAND, OHIO, NEW YORK, NEW YORK AND
TORONTO, CANADA
THIS CERTIFIES THAT
is the registered Holder of
FULLY PAID AND NONASSESSABLE SHARES OF THE COMMON STOCK, WITH A PAR VALUE
OF $0.0001 OF
GETCHELL GOLD CORPORATION
transferable only on the share register of said Corporation, in person or by
duly authorized Attorney, upon surrender of this Certificate properly endorsed
or assigned.
This Certificate and the shares represented hereby are issued and shall be
held subject to all the provisions of the Certificate of Incorporation and the
By-Laws of said Corporation and any amendments thereof, to all of which holder
of this Certificate, by acceptance hereof, assents.
A statement of the designations, preferences, and relative, participating,
optional or other special rights granted to or imposed upon the respective
classes or series of shares of stock of the Corporation and upon the holders
thereof, and the qualifications, limitations or restrictions of such preferences
and/or rights as established by the Corporation's Certificate of Incorporation,
as amended or by any certificate of designations, powers and preferences, and
the number of shares constituting each class or series and the designations
thereof, may be obtained by any stockholder, upon request and without charge, at
the principal office of the Corporation.
This Certificate is not valid until countersigned by the Transfer Agent and
registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
DATED:
/s/ D.S. Robson G.W. Thompson
VICE PRESIDENT, CHIEF FINANCIAL PRESIDENT AND CHIEF EXECUTIVE
OFFICER AND SECRETARY OFFICER
COUNTERSIGNED AND REGISTERED:
The R-M Trust Company
(Toronto, Canada)
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
COUNTERSIGNED AND REGISTERED:
KeyCorp Shareholder Services, Inc.
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the --------- ----------
entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act
in common --------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, hereby sell, assign and transfer unto
----------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- ---------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------Shares
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- ------------------------------------------------------------------------Attorney
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated
-------------------------------
X
-------------------------------------------
X
-------------------------------------------
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON
NOTICE- THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
Signature(s) Guaranteed
By
---------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between Getchell Gold Corporation
(the "Company") and KeyCorp Shareholder Services, Inc. (the "Rights Agent")
dated as of June 13, 1990, which includes as an exhibit thereto the resolutions
(the "Resolutions") adopted by the Company's Board of Directors on June 13, 1990
authorizing the Rights Agreement and the Rights (the "Rights Agreement"), the
terms of which Rights Agreement are hereby incorporated herein by reference and
copies of which are on file at the principal office of the Company and the
office of the Rights Agent designated for such purpose. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be evidenced by this
certificate. The Company will mail to the holder of this certificate a copy of
the Rights Agreement, as in effect on the date of mailing, without charge
promptly after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights issued to, or held by,
any Person who is, was or becomes an Acquiring Person or any Affiliate or
Associate thereof (as such terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any subsequent holder, may
become null and void.
