-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CtQ+uYNoW7+VcwkHa7u5AlnY/Ko/dRryBF+yhMMS1ImGovVJBjv5Xzpny2ifo4wi nTs0S0pcmpumjvFl2mSegA== 0000950134-01-508613.txt : 20020410 0000950134-01-508613.hdr.sgml : 20020410 ACCESSION NUMBER: 0000950134-01-508613 CONFORMED SUBMISSION TYPE: 10-Q/A PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20010930 FILED AS OF DATE: 20011114 FILER: COMPANY DATA: COMPANY CONFORMED NAME: STILLWATER MINING CO /DE/ CENTRAL INDEX KEY: 0000931948 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS METAL ORES [1090] IRS NUMBER: 810480654 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-13053 FILM NUMBER: 1789703 BUSINESS ADDRESS: STREET 1: 1200 SEVENTEETH STREET STREET 2: SUITE 900 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 3039782525 MAIL ADDRESS: STREET 1: 1200 SEVEENTH STREET STREET 2: SUITE 900 CITY: DENVER STATE: CO ZIP: 80202 10-Q/A 1 d92280ae10-qa.txt AMENDMENT NO. 1 TO FORM 10-Q UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 10-Q/A [X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended September 30, 2001. OR [ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from to ------ ------ Commission file number 0-25090 ------- STILLWATER MINING COMPANY ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 81-0480654 - ------------------------------- ------------------------------------ (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 737 Palladium Place Columbus, Montana 59019 - ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) (406) 322-8700 ---------------------------------------------------- (Registrant's telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days: YES X NO --- --- At October 23, 2001, 38,750,416 shares of common stock, $0.01 par value per share, were issued and outstanding. STILLWATER MINING COMPANY FORM 10-Q/A QUARTER ENDED September 30, 2001 INDEX This amendment to our Form 10-Q filed on October 26, 2001 is being filed solely for the purpose of filing our (i) Restated Certificate of Incorporation, dated December 21, 1994, (ii) three amendments thereto, dated December 21, 1994, June 29, 1999 and July 13, 2000, respectively, (iii) Certificate of Designation, dated November 15, 1995 and (iii) Amended and Restated Bylaws, as adopted April 19, 2001, each of which was inadvertently omitted in prior filings.
PAGE ---- PART II - OTHER INFORMATION Item 6. Exhibits and Reports on Form 8-K ................................................. 3 SIGNATURES ..................................................................................... 4
2 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits 3.1 Restated Certificate of Incorporation of the Registrant, dated December 21, 1994. 3.2 Certificate of Amendment of the Registrant's Restated Certificate of Incorporation, dated December 21, 1994. 3.3 Certificate of Designation of the Registrant's Amended and Restated Certificate of Incorporation, dated November 15, 1995. 3.4 Certificate of Amendment of the Registrant's Amended and Restated Certificate of Incorporation, dated June 29, 1999. 3.5 Certificate of Amendment of the Registrant's Amended and Restated Certificate of Incorporation, dated July 13, 2000. 3.6 Amended and Restated Bylaws of the Registrant, as adopted April 19, 2001. 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. STILLWATER MINING COMPANY (Registrant) Date: November 14, 2001 By: /s/ Francis R.McAllister ------------------------------------------ Francis R. McAllister Chairman and Chief Executive Officer (Principal Executive Officer) Date: November 14, 2001 By: /s/ James A. Sabala ------------------------------------------ James A. Sabala Vice President and Chief Financial Officer (Principal Financial Officer) 4 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 3.1 Restated Certificate of Incorporation of the Registrant, dated December 21, 1994. 3.2 Certificate of Amendment of the Registrant's Restated Certificate of Incorporation, dated December 21, 1994. 3.3 Certificate of Designation of the Registrant's Amended and Restated Certificate of Incorporation, dated November 15, 1995. 3.4 Certificate of Amendment of the Registrant's Amended and Restated Certificate of Incorporation, dated June 29, 1999. 3.5 Certificate of Amendment of the Registrant's Amended and Restated Certificate of Incorporation, dated July 13, 2000. 3.6 Amended and Restated Bylaws of the Registrant, as adopted April 19, 2001.
EX-3.1 3 d92280aex3-1.txt RESTATED CERTIFICATE OF INCORPORATION EXHIBIT 3.1 RESTATED CERTIFICATE OF INCORPORATION OF STILLWATER MINING COMPANY Stillwater Mining Company (the "Corporation") was incorporated under that name by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on December 2, 1992. This Restated Certificate of Incorporation of the Corporation, which both restates and further amends the provisions of the Corporation's Certificate of Incorporation as heretofore amended, was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware and by the written consent of its stockholders in accordance with Section 228 of the General Corporation Law of the State of Delaware, and written notice thereof has been given to all stockholders who did not consent thereto in writing. ARTICLE 1 The name of the Corporation is Stillwater Mining Company. ARTICLE 2 The address of the Corporation's registered office in the County of Kent, State of Delaware is The Prentice-Hall Corporation System, Inc., 32 Loockerman Square, Suite L-100, Dover, Delaware 19904. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc. ARTICLE 3 The nature of the business of the Corporation and the purposes for which it is organized is to engage in any business and in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware and to possess and employ all powers and privileges now or hereafter granted or available under the laws of the State of Delaware to such corporations. ARTICLE 4 The authorized capital stock of the Corporation shall consist of Fifty Million (50,000,000) shares of Common Stock, par value $.01 per share, and One Million (1,000,000) shares of Preferred Stock, par value $.01 per share. The Preferred Stock may be issued from time to time as shares of one or more series. Subject to the provisions hereof and the limitations prescribed in the Corporation's bylaws or by law, the Board of Directors is authorized to, by adopting resolutions providing for the issuance of Preferred Stock of any particular series, to establish the number of shares of Preferred Stock to be included in each such series. Subject to the provisions hereof and the limitations prescribed in the Corporation's bylaws or by law, the Board of Directors is further authorized, by adopting resolutions providing for the issuance of Preferred Stock, to fix the designations, relative powers, preferences and rights, and the qualifications, limitations and restrictions thereof, including without limitation the right to create voting rights and dividend and liquidation preferences greater than those of Common Stock. ARTICLE 5 Board of Directors 5.1 Number. Except as otherwise provided for or fixed pursuant to the provisions of Article 4 of this Certificate relating to the rights of holders of any series of Preferred Stock, the number of directors constituting the entire Board of Directors shall be seven. 5.2 Cumulative Voting. Except as otherwise provided for or fixed pursuant to the provisions of Article 4 of this Certificate relating to the rights of holders of any series of Preferred Stock, each stockholder entitled to vote for director shall be entitled at all elections of directors to as many votes as shall equal the number of votes which (except for these provisions as to cumulative voting) such stockholder would be entitled to cast for the election of directors with respect to such stockholder's shares of stock multiplied by the number of directors to be elected, and such stockholder may cast all of such votes for a single director or may distribute them among the number to be voted for, or for any two or more of them as such holder may see fit. 5.3 Election of Directors. Directors need not be elected by written ballot, unless the bylaws so require. ARTICLE 6 Subject to the limitations contained in the bylaws, the Board of Directors of the Corporation is expressly authorized to make, alter, or repeal the bylaws of the Corporation, but such authorization shall not divest the stockholders of the power, nor limit their power, to adopt, amend, or repeal bylaws. ARTICLE 7 Any action required or permitted to be taken by the stockholders of the Corporation may be effected by written consent of the stockholders of the number of shares required to approve actions at duly convened meetings of stockholders at which all shares entitled to vote thereon were present and entitled to vote. ARTICLE 8 Notwithstanding that a lesser or no vote may be required by law of the stockholders of the Corporation, and in addition to any other vote of the stockholders 2 required by law or this Restated Certificate of Incorporation, but subject to Section 253 of the General Corporation Law of the State of Delaware, the following matters shall require either (a) the favorable vote by the stockholders holding at least two-thirds (2/3) of the then issued and outstanding shares of Common Stock or (b) the favorable vote of stockholders holding at least a majority of the then issued and outstanding shares of Common Stock if such matter has received the favorable vote of at least seventy-five percent (75%) of the entire Board of Directors of the Corporation: (i) the merger or consolidation of the Corporation of any of its subsidiaries with any other entity (except in connection with a merger consummated for the sole purpose of changing the jurisdiction of organization of the Corporation or any of its subsidiaries), (ii) a sale in one transaction or a series of related transactions of all or substantially all of the Corporation's assets or (iii) an amendment to Section 5.1, Section 5.2, Article 10 or this Article 8. As used in this Article 8 and in this Certificate of Incorporation generally, the term "entire Board of Directors" means the total number of directors which the Corporation would have if there were no vacancies. ARTICLE 9 No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except as to 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) for violations of Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived any improper personal benefit. If the General Corporation Law of the State of Delaware hereafter is amended to eliminate or limit further the liability of a director, then, in addition to the elimination and limitation of liability provided by the preceding sentence, the liability of each director shall be eliminated or limited to the fullest extent provided or permitted by the amended General Corporation Law of the State of Delaware. ARTICLE 10 At such time as Manville Corporation, together with any direct or indirect wholly-owned subsidiaries of Manville Corporation, no longer holds of record shares of Common Stock or other Corporation securities having general voting power in the election of directors ("Voting Securities") constituting, in the aggregate, thirty percent (30%) or more of the total general voting power of the Corporation's Voting Securities outstanding, then Section 5.1 and Article 8 of this Certificate of Incorporation shall become forever null and void and shall be of no further force and effect. 3 IN WITNESS WHEREOF, the undersigned hereby declares and certifies that this is the duly authorized act and deed of the Corporation and that the facts herein are true, and accordingly, has hereunto set his hand effective as of the 21st day of December, 1994. /s/ CHARLES R. ENGLES --------------------------- Charles R. Engles, Chairman ATTEST: /s/ ROGER P. TWISSELMAN --------------------------- Roger P. Twisselman, Secretary 4 EX-3.2 4 d92280aex3-2.txt CERTFICIATE OF AMENDMENT EXHIBIT 3.2 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF STILLWATER MINING COMPANY Stillwater Mining Company (the "Company") was incorporated under that name by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on December 2, 1992. The undersigned, being the Chief Executive Officer of Stillwater Mining Company, a Delaware corporation, hereby certifies that this Certificate of Amendment to the Certificate of Incorporation of the Company, which further amends the provisions of the Company's Certificate of Incorporation as heretofore amended, was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware and by the written consent of its stockholders in accordance with Section 228 of the General Corporation Law of the State of Delaware, and written notice thereof has been given to all stockholders who did not consent thereto in writing, and that the Certificate of Incorporation, as heretofore amended, is hereby amended by inserting the following at the end of Article 4 thereof: That without further action, each of four shares of Common Stock, $.01 par value, of the Company (the "Old Shares") hereby are changed and combined into three fully paid and non-assessable shares of Common Stock, par value $.01 per share, authorized under the Certificate of Incorporation of this Company (the "New Shares"), effective as of December 22, 1994, at 8:00 a.m. Eastern Standard Time. That the authorized Capital Stock of the Company shall continue to consist of Fifty Million (50,000,000) shares of Common Stock, par value $.01 per share, and One Million (1,000,000) shares of preferred stock, par value $.01 per share. That to avoid the creation of fractional shares of Common Stock of this Company by reason of accomplishment of the reverse stock split accomplished by these resolutions, no fractional New Shares shall be delivered by this Company but, in lieu thereof, this Company shall purchase and acquire, as Treasury Shares, such fractional parts of a New Share as would otherwise be deliverable but for such prohibition against fractionalization, and the Company shall pay for fractional parts of a New Share so acquired on the basis of such price per whole New Share as shall be equal to the initial public offering price of the Company's Common Stock, to be payable in cash upon surrender by the holder of a certificate or certificates for Old Shares. That each certificate representing Old Shares shall, without further action, be deemed to represent such number of whole New Shares (without fractional shares) as results from the reverse stock split described in these resolutions. That the officers of this Company be, and they hereby are, authorized and empowered to do, and to cause to be accomplished, all things necessary or appropriate to implement consummation of the reverse stock split contemplated by these resolutions. IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of December, 1994. By: /s/ CHARLES R. ENGLES ------------------------------- Charles R. Engles Chief Executive Officer ATTEST: By: /s/ ROGER P. TWISSELMAN ------------------------------ Roger P. Twisselman, Secretary 2 EX-3.3 5 d92280aex3-3.txt CERTIFICATE OF DESIGNATION EXHIBIT 3.3 STILLWATER MINING COMPANY CERTIFICATE OF DESIGNATION OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS AND QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OF THE SERIES A PREFERRED STOCK ---------- Pursuant to Section 151 of the General Corporation Law of the State of Delaware ---------- The undersigned officers of Stillwater Mining Company, a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY: That, pursuant to the authority conferred upon the Board of Directors of the Corporation by its Restated Certificate of Incorporation (the "Certificate"), the said Board of Directors, at a duly called meeting held on October 26, 1995, at which a quorum was present and acted throughout, adopted the following resolution, which resolution remains in full force and effect on the date hereof creating a series of 135,000 shares of Preferred Stock having a par value of $.01 per share, designated as Series A Preferred Stock (the "Series A Preferred Stock") out of the class of 1,000,000 shares of preferred stock of the par value of $.01 per share (the "Preferred Stock"): RESOLVED that pursuant to the authority vested in the Board of Directors in accordance with the provisions of its Certificate, the Board of Directors does hereby create, authorize and provide for 135,000 shares of its authorized Preferred Stock to be designated and issued as the Series A Preferred Stock, having the voting powers, designation, relative, participating, optional and other special rights, preferences and qualifications, limitations and restrictions that are set forth as follows: 1. Dividends and Distributions. (A) Subject to the prior and superior rights of the holders of any shares of any other series of Preferred Stock or any other shares of stock of the Corporation ranking prior and superior to the shares of Series A Preferred Stock with respect to dividends, each holder of one one-thousandth (1/1000) of a share (a "Unit") of Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for that purpose, (i) quarterly dividends payable in cash on the last day of February, May, August and November in each year (each such date being a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of such Unit of Series A Preferred Stock, in an amount per Unit (rounded to the nearest cent) equal to the greater of (a) $.01 or (b) subject to the provision for adjustment hereinafter set forth, the aggregate per share amount of all cash dividends declared on shares of the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of a Unit of Series A Preferred Stock, and (ii) subject to the provision for adjustment hereinafter set forth, quarterly distributions (payable in kind) on each Quarterly Dividend Payment Date in an amount per Unit equal to the aggregate per share amount of all non-cash dividends or other distributions (other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock, by reclassification or otherwise) declared on shares of Common Stock since the immediately preceding Quarterly Dividend Payment Date, or with respect to the first Quarterly Dividend Payment Date, since the first issuance of a Unit of Series A Preferred Stock. In the event that the Corporation shall at any time after November 15, 1995 (the "Rights Declaration Date") (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock or (iii) combine outstanding shares of Common Stock into a smaller number of shares, then in each such case the amount to which the holder of a Unit of Series A Preferred Stock was entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which shall be the number of shares of Common Stock that are outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on Units of Series A Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the shares of Common Stock (other than a dividend payable in shares of Common Stock); provided, however, that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $.01 per Unit on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and shall be cumulative on each outstanding Unit of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issuance of such Unit of Series A Preferred Stock, unless the date of issuance of such Unit is prior to the record date for the first Quarterly Dividend Payment Date, in which case, dividends on such Unit shall begin to accrue from the date of issuance of such Unit, or unless the date of issuance is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of Units of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on Units of Series A Preferred Stock in an amount less than the aggregate amount of all such dividends at the time accrued and payable on such Units shall be allocated pro rata on a unit-by-unit basis among all Units of Series A Preferred Stock at the time outstanding. The Board of Directors may fix a record date for the determination of holders of Units of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 30 days prior to the date fixed for the payment thereof. 2 2. VOTING RIGHTS. The holders of Units of Series A Preferred Stock shall have the following voting rights: (A) Subject to the provision for adjustment hereinafter set forth, each Unit of Series A Preferred Stock shall entitle the holder thereof to one vote on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock or (iii) combine the outstanding shares of Common Stock into a smaller number of shares, then in each such case the number of votes per Unit to which holders of Units of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event; and (B) Except as otherwise provided herein, in the Certificate or the Bylaws of the Corporation or as required by law, the holders of Units of Series A Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation, and such holders shall have no special voting rights and their consents shall not be required for taking any corporate action. 3. CERTAIN RESTRICTIONS. (A) Whenever quarterly dividends or other dividends or distributions payable on Units of Series A Preferred Stock as provided herein are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on outstanding Units of Series A Preferred Stock shall have been paid in full, the Corporation shall not (i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of junior stock; (ii) declare or pay dividends on or make any other distributions on any shares of parity stock, except dividends paid ratably on Units of Series A Preferred Stock and shares of all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of such Units and all such shares are then entitled; (iii) redeem or purchase or otherwise acquire for consideration shares of any parity stock, provided, however, that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any junior stock; (iv) purchase or otherwise acquire for consideration any Units of Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such Units. (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 3, purchase or otherwise acquire such shares at such time and in such manner. 4. REACQUIRED SHARES. Any Units of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such Units shall, upon their cancellation, become authorized but 3 unissued shares (or fractions of shares) of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein. 5. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, no distribution shall be made (i) to the holders of shares of junior stock unless the holders of Units of Series A Preferred Stock shall have received, subject to adjustment as hereinafter provided in paragraph (B), the greater of either (a) $.01 per Unit plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not earned or declared, to the date of such payment, or (b) the amount equal to the aggregate per share amount to be distributed to holders of shares of Common Stock, or (ii) to the holders of shares of parity stock, unless simultaneously therewith distributions are made ratably on Units of Series A Preferred Stock and all other shares of such parity stock in proportion to the total amounts to which the holders of Units of Series A Preferred Stock are entitled under clause (i)(a) of this sentence and to which the holders of shares of such parity stock are entitled, in each case upon such liquidation, dissolution or winding up. (B) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine outstanding shares of Common Stock into a smaller number of shares, then in each such case the aggregate amount to which holders of Units of Series A Preferred Stock were entitled immediately prior to such event pursuant to clause (i)(b) of paragraph (A) of this Section 5 shall be adjusted by multiplying such amount by a fraction the numerator of which shall be the number of shares of Common Stock that are outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event. 6. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or converted into other stock or securities, cash and/or any other property, then in any such case Units of Series A Preferred Stock shall at the same time be similarly exchanged for or converted into an amount per Unit (subject to the provision for adjustment hereinafter set forth) equal to the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is converted or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the immediately preceding sentence with respect to the exchange or conversion of Units of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which shall be the number of shares of common Stock that are outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event. 4 7. Redemption. The Units of Series A Preferred Stock and shares of Series A Preferred Stock shall not be redeemable. 8. Ranking. The Units of Series A Preferred Stock and shares of Series A Preferred Stock shall rank junior to all other series of the Preferred Stock and to any other class of Preferred Stock that hereafter may be issued by the Corporation as to the payment of dividends and the distribution of assets, unless the terms of any such series or class shall provide otherwise. 9. Fractional Shares. The Series A Preferred Stock may be issued in Units or other fractions of a share, which Units or fractions shall entitle the holder, in proportion to such holder's units or fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A Preferred Stock. 10. Certain Definitions. As used in this resolution with respect to the Series A Preferred Stock, the following terms shall have the following meanings: (A) The term "Common Stock" shall mean the class of stock designated as the common stock, par value $.01 per share, of the Corporation at the date hereof or any other class of stock resulting from successive changes or reclassification of the common stock. (B) The term "junior stock" (i) as used in Section 3 shall mean the Common Stock and any other class or series of capital stock of the Corporation hereafter authorized or issued over which the Series A Preferred Stock has preference or priority as to the payment of dividends and (ii) as used in Section 5, shall mean the Common Stock and any other class or series of capital stock of the Corporation over which the Series A Preferred Stock has preference or priority in the distribution of assets on any liquidation, dissolution or winding up of the Corporation. (C) The term "parity stock" (i) as used in Section 3 shall mean any class or series of stock of the Corporation hereafter authorized or issued ranking pari passu with the Series A Preferred Stock as to dividends and (ii) as used in Section 5, shall mean any class or series of capital stock ranking pari passu with the Series A Preferred Stock in the distribution of assets on any liquidation, dissolution or winding up. 5 IN WITNESS WHEREOF, Stillwater Mining Company has caused this Certificate to be signed by its Chairman and Chief Executive Officer and its Secretary this 15th day of November, 1995. STILLWATER MINING COMPANY By: /s/ CHARLES R. ENGLES ---------------------- Charles R. Engles Chairman and Chief Executive Officer By: /s/ MICHAEL A. SHEA ----------------------- Michael A. Shea Secretary EX-3.4 6 d92280aex3-4.txt CERTIFICATE OF AMENDMENT EXHIBIT 3.4 CERTIFICATE OF AMENDMENT OF RESTATED CERTIFICATE OF INCORPORATION OF STILLWATER MINING COMPANY Stillwater Mining Company (the "Corporation") was incorporated under that name by the filing of its original Certificate of Incorporation with the Secretary of State of the state of Delaware on December 2, 1992. The undersigned, being the Chief Executive Officer of Stillwater Mining Company, a Delaware corporation, hereby certifies that this Certificate of Amendment to the Restated Certificate of Incorporation of the Corporation was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware at a meeting of the stockholders of the Corporation duly noticed and called for such purpose by the affirmative vote of a majority of the outstanding shares of common stock of the Corporation entitled to vote at the meeting and that the Restated Certificate of Incorporation is hereby amended by the amendment of Article 5, Section 5.1 of the Corporation's Restated Certificate of Incorporation to read as follows: 5.1. Except as otherwise provided for or fixed pursuant to the provisions of Article 4 of this Certificate relating to the rights of holders of any series of Preferred Stock, the number of directors constituting the entire Board of Directors shall be set forth in accordance with the bylaws of the Corporation; provided, however, that the number of directors shall be no less than seven and no more than ten. IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of May, 1999. By: /s/ WILLIAM E. NETTLES ------------------------------------------- William E. Nettles, Chief Executive Officer ATTEST: /s/ MICHAEL A. SHEA ------------------------------------------- Michael A. Shea, Secretary EX-3.5 7 d92280aex3-5.txt CERTIFICATE OF AMENDMENT EXHIBIT 3.5 CERTIFICATE OF AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF STILLWATER MINING COMPANY A DELAWARE CORPORATION (PURSUANT TO SECTIONS 211 AND 242 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE) Stillwater Mining Company, a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Delaware Law"), DOES HEREBY CERTIFY THAT: FIRST: The name of the corporation is Stillwater Mining Company (the "Corporation"). The Corporation was originally incorporated on December 2, 1992, as Stillwater Mining Corporation pursuant to the Delaware Law. The original Certificate of Incorporation was amended on December 8, 1993, amended and restated on November 12, 1993, amended on April 6, 1994, amended and restated on June 16, 1994, amended and restated on December 21, 1994, further amended on December 21, 1994, amended and restated on December 15, 1995, and amended on June 29, 1999, each as filed with the Secretary of State of the State of Delaware (collectively, the "Restated Certificate"); SECOND: The following amendment of the Restated Certificate (the "Amendment") was approved by resolutions duly adopted by of the Board of Directors of the Corporation at a meeting of the Board of Directors of the Corporation held on March 8, 2000, in accordance with Section 141 of the Delaware Law; THIRD: The Amendment was duly adopted and approved in accordance with the provisions of Section 211 of the Delaware Law by the requisite vote of the stockholders of the Corporation at the Annual Meeting of Stockholders held on May 10, 2000, in which a quorum was present either in person or by proxy; and FOURTH: The Amendment was duly adopted and approved in accordance with the provisions of Section 242 of the Delaware Law: BE IT RESOLVED, that Article 4 of the Restated Certificate be, and it hereby is, amended and restated to read in its entirety as follows: "ARTICLE 4 "The authorized capital stock of the Corporation shall consist of One Hundred Million (100,000,000) shares of Common Stock, par value $.01 per share, and One Million (1,000,000) shares of Preferred Stock, par value $.01 per share." 1 IN WITNESS WHEREOF, Stillwater Mining Corporation has caused this Certificate of Amendment of Amended and Restated Certificate of Incorporation to be signed by its Chief Executive Officer and Secretary this 30th day of June, 2000. By: /s/ William E. Nettles -------------------------------- William E. Nettles Chief Executive Officer ATTEST: By: /s/ Michael A. Shea ------------------------------- Michael A. Shea Secretary 2 EX-3.6 8 d92280aex3-6.txt AMENDED AND RESTATED BYLAWS EXHIBIT 3.6 AMENDED AND RESTATED BYLAWS OF STILLWATER MINING COMPANY ARTICLE 1 OFFICES SECTION 1.1 REGISTERED OFFICE. The registered office of the Corporation shall be in Wilmington, Delaware. SECTION 1.2 CORPORATE OFFICE. The Corporation may have its office or offices at such place or places as the board of directors, in its discretion, may from time to time determine. ARTICLE 2 MEETINGS OF STOCKHOLDERS SECTION 2.1 TIME AND PLACE. Any meeting of the stockholders may be held at such time and such place, either within or without the State of Delaware, as shall be designated from time to time by resolution of the board of directors or as shall be stated in a duly authorized notice of the meeting. SECTION 2.2 ANNUAL MEETING. The annual meeting of the stockholders shall be held on the date and at the time fixed, from time to time, by the board of directors; provided, however, that the first annual meeting shall be held within thirteen months after the organization of the Corporation, and each succeeding annual meeting shall be held within thirteen months after the last preceding annual meeting. The annual meeting shall be for the purpose of electing a board of directors and transacting such other business as may properly be brought before the meeting. SECTION 2.3 SPECIAL MEETINGS. Special meetings of the stockholders of the Corporation, for any purpose or purposes, unless otherwise prescribed by law or by the Restated Certificate of Incorporation, may be called at any time by a majority of the entire board of directors, the chairman or the president of the Corporation or by the secretary upon the written request of stockholders owning at least a majority of the capital stock of the Corporation entitled to vote generally in the election of directors. Special meetings of the stockholders of the Corporation may not be called by any other person or persons. Special meetings may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting. No business may be transacted at such meeting except that referred to in the notice thereof. SECTION 2.4 NOTICES. Written notice stating the place, date, and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the 1 date of the meeting, except as otherwise required by the Delaware General Corporation Law (the "DGCL") or the Restated Certificate of Incorporation, either personally or by mail, prepaid telegram, telex, cablegram, or radiogram, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, addressed to the stockholder at his or her address as it appears on the stock records of the Corporation. If given personally or otherwise than by mail, such notice shall be deemed to be given when either handed to the stockholder or delivered to the stockholder's address as it appears on the stock records of the Corporation. SECTION 2.5 RECORD DATE. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting, or at any adjournment of a meeting, of stockholders; or entitled to express consent to corporate action in writing without a meeting; or entitled to receive payment of any dividend or other distribution or allotment of any rights; or entitled to exercise any rights in respect of any change, conversion, or exchange of stock; or for the purpose of any other lawful action; the board of directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors. The record date for determining the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof shall not be more than sixty nor less than ten days before the date of such meeting. The record date for determining the stockholders entitled to consent to corporate action in writing without a meeting shall be determined in accordance with the provisions of Section 2.12 of these Amended and Restated Bylaws. The record date for any other action shall not be more than sixty days prior to such action. If no record date is fixed, (i) the record date for determining stockholders entitled to notice of or to vote at any meeting shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived by all stockholders, at the close of business on the day next preceding the day on which the meeting is held; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall be as set forth in Section 2.12 hereof; and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating to such other purpose. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. SECTION 2.6 NOTICE OF BUSINESS. Subject to Section 2.3 of these Amended and Restated Bylaws, at any meeting of the stockholders of the Corporation, only such proper business shall be conducted as shall have been brought before the meeting (i) by or at the direction of the board of directors or (ii) by any stockholder of the Corporation who is a stockholder of record at the time of giving of the notice provided for in this Section 2.6, who shall be entitled to vote at such meeting and who complies with the notice procedures set forth in this Section 2.6. For business to be brought before a meeting of stockholders by a stockholder, the stockholder shall have given timely notice thereof in writing to the secretary of the Corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal 2 executive office of the Corporation not less than fifty days nor more than seventy-five days prior to the meeting; provided, however, that in the event that less than sixty days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received no later than the close of business on the tenth day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made, whichever first occurs. Such stockholder's notice to the secretary of the Corporation shall set forth as to each matter the stockholder proposes to bring before the meeting (i) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and, in the event that such business includes a proposal to amend any document, including these Amended and Restated Bylaws, the language of the proposed amendment, (ii) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business, (iii) the class and number of shares of capital stock of the Corporation which are beneficially owned by such stockholder and (iv) any material interest of such stockholder in such business. Notwithstanding anything in these Amended and Restated Bylaws to the contrary, no business to be brought before a meeting of stockholders by a stockholder shall be conducted at such meeting of the stockholders except in accordance with the procedures set forth in this Section 2.6. The chairman of the meeting of stockholders shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of these Amended and Restated Bylaws, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.6, a stockholder shall also comply with all applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder with respect to matters set forth in this Section 2.6. SECTION 2.7 CONDUCT OF MEETINGS. The board of directors may adopt by resolution such rules and regulations for the conduct of meetings of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the board of directors, the presiding officer of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding officer, are appropriate for the proper conduct of the meeting. Such rules, regulations and procedures, whether adopted by the board of directors or prescribed by the presiding officer of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, theft duly authorized and constituted proxies or such other persons as the presiding officer of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions and/or comments by participants. Unless and to the extent determined by the board of directors or the presiding officer of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. 3 SECTION 2.8 VOTING LIST. The secretary shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held (which place shall be specified in the notice of the meeting) or, if not so specified, at the place where the meeting is to be held. The list shall be produced and kept at the place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. SECTION 2.9 QUORUM; ADJOURNMENT. Except as otherwise required by law, by the Restated Certificate of Incorporation or by these Amended and Restated Bylaws, the presence, in person or by proxy, of holders of at least 50% of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting shall constitute a quorum at all meetings of the stockholders for the transaction of business. In case a quorum shall not be present at any meeting of stockholders, the presiding officer of the meeting or a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof, provided, however, if the adjournment is for more than thirty days or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. In addition, the board of directors may adjourn a meeting of the stockholders if the board of directors determines that adjournment is necessary or appropriate in order to enable the stockholders (a) to consider fully information that the board of directors determines has not been made sufficiently or timely available to stockholders or (b) to otherwise effectively exercise their voting rights. SECTION 2.10 VOTING AND PROXIES. Subject to the provisions of the Restated Certificate of Incorporation, at every meeting of the stockholders, each stockholder shall be entitled to one vote, in person or by proxy, for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date unless the proxy provides for a longer period. When a quorum is present at any meeting, the vote of the holders of (i) a plurality of votes cast at the meeting is required for the election of directors and (ii) a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which, by express provision of the DGCL or other law or of the Restated Certificate of Incorporation, a different vote is required, in which case such express provision shall govern. SECTION 2.11 WAIVER. Attendance of a stockholder of the Corporation, either in person or by proxy, at any meeting, whether annual or special, shall constitute a waiver 4 of notice of such meeting, except where a stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. A written waiver of notice of any such meeting signed by a stockholder or stockholders entitled to such notice, whether before, at, or after the time for notice or the time of the meeting, shall be equivalent to notice. Neither the business to be transacted at, nor the purpose of, any meeting need be specified in any written waiver of notice. SECTION 2.12 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. (a) Unless otherwise provided in the Restated Certificate of Incorporation, any action which is required to be or may be taken at any annual or special meeting of stockholders of the Corporation, subject to the provisions of subsections (b), (c), (d) and (e) of this Section 2.12, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall have been signed by the holders of issued and outstanding shares of capital stock having not less than the minimum number of votes that would be necessary to authorize or to take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation. Prompt notice of the taking of the corporate action without a meeting and by less than unanimous written consent shall be given to those stockholders who have not consented in writing. (b) Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation. (c) The record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be fixed by the board of directors. Any stockholder seeking to have the stockholders authorize or take corporate action by written consent without a meeting shall, by written notice to the secretary, request the board of directors to fix a record date. Upon receipt of such a request, the secretary shall, as promptly as practicable, call a special meeting of the board of directors to be held as promptly as practicable, but in any event not more than ten days following the date of receipt of such a request. At such meeting, the board of directors shall fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. Notice of the record date shall be published in accordance with the rules and policies of the principal stock exchange or automated quotation system in the United States on which securities of the Corporation are then listed or quoted. If no record date 5 has been so fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by the DGCL, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation. If no record date has been fixed by the board of directors and prior action by the board of directors is required by the DGCL, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. (d) In the event of the delivery to the Corporation of a written consent or consents purporting to represent the requisite voting power to authorize or take corporate action and/or related revocations, the secretary shall provide for the safekeeping of such consents and revocations and shall, as promptly as practicable, engage nationally recognized independent inspectors for the purpose of promptly performing a ministerial review of the validity of the consents and revocations. No action by written consent without a meeting shall be effective until such inspectors have completed their review, determined that the requisite number of valid and unrevoked consents has been obtained to authorize or take the action specified in the consents, and certified such determination for entry in the records of the Corporation kept for the purpose of recording the proceedings of meetings of stockholders. (e) For purposes of this Section 2.12, delivery to the Corporation shall be effected by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. ARTICLE 3 DIRECTORS SECTION 3.1 NUMBER. The number of directors shall be not less than seven nor more than ten as shall be fixed by the board of directors, except as otherwise allowed by, set forth or restricted in the restated Certificate of Incorporation. SECTION 3.2 ELECTIONS. Except as provided in the Restated Certificate of Incorporation or in Section 3.4 of this Article 3, the board of directors shall be elected at the annual meeting of the stockholders or at a special meeting called for that purpose. Each director shall hold such office until his or her successor is elected and qualified or until his or her earlier resignation or removal. SECTION 3.3 NOMINATION OF DIRECTORS. Subject to the right to elect additional directors under specified circumstances which may be granted, pursuant to the provisions of Article 4 of the Restated Certificate of Incorporation, to the holders of any class or series of preferred stock, directors shall be elected by a plurality of the votes cast at annual meetings of stockholders, and each director so elected shall hold office until his successor is duly elected and qualified, or until his earlier resignation or removal. Directors need not be stockholders. Only persons who are nominated in accordance with the following procedures shall be eligible for election by the stockholders as directors of the Corporation. Nominations of persons for election as directors of the Corporation may be made at a meeting of stockholders (a) by or at the 6 direction of the board of directors, (b) by any nominating committee or persons appointed by the board of directors or (c) by any stockholder of the Corporation entitled to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 3.3. Such nominations, other than those made by or at the direction of the board of directors, shall be made pursuant to timely notice in writing to the secretary of the Corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive office of the Corporation not less than fifty days nor more than seventy-five days prior to the meeting; provided, however, that in the event that less than sixty days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made, whichever first occurs. Such stockholder's notice to the secretary of the Corporation shall set forth (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the Corporation which are beneficially owned by the person, and (iv) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to the Securities Exchange Act of 1934, as now or hereafter amended; and (b) as to the stockholder giving the notice, (i) the name and record address of such stockholder, and (ii) the class and number of shares of capital stock of the Corporation which are beneficially owned by such stockholder. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation. No person shall be eligible for election by the stockholders as a director of the Corporation unless nominated in accordance with the procedures set forth herein. The chairman of the meeting of the stockholders shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. SECTION 3.4 VACANCIES. Except as set forth in the Restated Certificate of Incorporation, any vacancy occurring on the board of directors and any directorship to be filled by reason of an increase in the board of directors may be filled by the affirmative vote of a majority of the remaining directors, although less than a quorum, or by a sole remaining director. Such newly elected director shall hold such office until his or her successor is elected and qualified or until his or her earlier resignation or removal. SECTION 3.5 MEETINGS. The first meeting of each newly elected board of directors elected at the annual meeting of stockholders shall be held immediately after, and at the same place as, the annual meeting of the stockholders, provided a quorum is present, and no notice of such meeting shall be necessary in order to legally constitute the meeting. The board of directors may, by resolution, establish a place and time for regular meetings which may thereafter be held without call or notice. 7 SECTION 3.6 NOTICE OF SPECIAL MEETINGS. Special meetings may be called by the chairman, president or any two members of the board of directors. Such notice may be given to each member of the board of directors by mail by the secretary, the chairman, the president, or the members of the board calling the meeting by depositing the same in the United States mail, postage prepaid, at least seven days before the meeting, addressed to the director at the last address he or she has furnished to the Corporation for this purpose, and any notice so mailed shall be deemed to have been given at the time when mailed. Notice may also be given at least seventy-two hours before the meeting in person, by telephone, or by a writing (including prepaid telegram, telex, cablegram, radiogram, facsimile or similar writing), and such notice shall be deemed to have been given when the personal or telephone conversation occurs or when the writing is either personally delivered to the director or is delivered to such address as is stated above, as the case may be. SECTION 3.7 QUORUM. At all meetings of the board, a quorum for the transaction of business shall consist of a majority of the directors, and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as otherwise specifically required by the DGCL or other law, the Restated Certificate of Incorporation, or these Amended and Restated Bylaws. If less than a quorum is present, the director or directors present may adjourn the meeting from time to time without further notice. Voting by proxy is not permitted at meetings of the board of directors. SECTION 3.8 WAIVER. Attendance of a director at a meeting of the board of directors shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. A written waiver of notice signed by a director or directors entitled to such notice, whether before, at, or after the time for notice or the time of the meeting, shall be equivalent to the giving of such notice. SECTION 3.9 ACTION WITHOUT MEETING. Any action required or permitted to be taken at a meeting of the board of directors may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the directors and filed with the minutes of proceedings of the board of directors. My such consent may be in counterparts and shall be effective on the date of the last signature thereon unless otherwise provided therein. SECTION 3.10 ATTENDANCE BY TELEPHONE. Members of the board of directors may participate in a meeting of such board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting. SECTION 3.11 ENTIRE BOARD OF DIRECTORS. As used in this Article 3 and in these Amended and Restated Bylaws generally, the term "entire board of directors" means 8 the total number of directors which the Corporation would have if there were no vacancies. ARTICLE 4 OFFICERS SECTION 4.1 ELECTION. The Corporation shall have such officers, with such titles and duties, as the board of directors may determine by resolution, which may include a chairman, vice chairman, chief executive officer, chief operating officer, president, one or more vice presidents, a secretary, and a treasurer and one or more assistants to such officers. The officers shall in any event have such titles and duties as shall enable the Corporation to sign instruments and stock certificates complying with Sections 103(a)(2) and 158 of the DGCL, and one of the officers shall have the duty to record the proceedings of the stockholders and the directors in a book to be kept for that purpose. The officers shall be elected by the board of directors; provided, however, that the chairman may appoint one or more assistant secretaries and assistant treasurers and such other subordinate officers as he or she deems necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as are prescribed in these Amended and Restated Bylaws or as may be determined from time to time by the board of directors or the chairman. Any two or more offices may be held by the same person. SECTION 4.2 REMOVAL AND RESIGNATION. Any officer may be removed at any time by the affirmative vote of a majority of the board of directors. Any officer may resign at any time by giving written notice of his or her resignation to the president or to the secretary, and acceptance of such resignation shall not be necessary to make it effective unless the notice so provides. Any vacancy occurring in any office shall be filled by the board of directors, except for the offices of assistant secretary or assistant treasurer which may be filled by the chairman. SECTION 4.3 CHAIRMAN. The chairman shall preside at all meetings of the stockholders and of the board of directors and shall perform such additional functions and duties as the board of directors may, from time to time, prescribe. SECTION 4.4 VICE CHAIRMAN. The vice chairman shall assist the chairman in performing such tasks as the chairman may assign to the vice chairman from time to time and shall perform such additional functions and duties as the board of directors may, from time to time, prescribe. Except as determined by the board of directors, the vice chairman shall be the officer next in seniority after the president and senior to any vice presidents. SECTION 4.5 CHIEF EXECUTIVE OFFICER. Subject to the direction and control of the board of directors, the chief executive officer shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the board of directors are carried into effect. The chief executive officer shall implement and carry out the annual budget and business plan and all other matters approved by the board of directors. He or she may negotiate for, approve and 9 execute contracts, deeds and other instruments on behalf of the Corporation as are necessary and appropriate in the general management of the business of the Corporation or as are approved by the board of directors or any committee designated by the board of directors. He or she shall perform such additional functions and duties as the board of directors may from time to time prescribe. The chief executive officer may delegate a portion of the authority granted to him or her to other officers and employees of the Corporation. Any such delegation by the chief executive officer must be in writing with copies provided to the treasurer and secretary of the Corporation. SECTION 4.6 PRESIDENT. The president shall serve as the chief executive officer, with the duties and powers enumerated in Section 4.5 above, in the absence of a duly elected chief executive officer or in the event of the absence or disability of the chief executive officer. The president shall also perform such other duties and have such other powers as are prescribed by the board of directors or the chief executive officer from time to time. SECTION 4.7 CHIEF OPERATING OFFICER. The chief operating officer shall be responsible for directing and supervising the Corporation's operating activities. He or she shall be the officer primarily responsible for the development of the Corporation's operations and systems and shall report to the board of directors thereon when requested at meetings of the board of directors. He or she shall have such other responsibilities and shall exercise such additional authority as may from time to time be assigned to him by the board of directors or the chief executive officer. SECTION 4.8 VICE PRESIDENT. The vice president or, if there is more than one, the vice presidents in the order determined by the board of directors or, in lieu of such determination, in the order determined by the chief executive officer shall be the officer or officers next in seniority after the vice chairman or, if none, the president. Each vice president shall also perform such duties and exercise such powers as are appropriate and such as are prescribed by the board of directors or, in lieu of or in addition to such prescription, such as are prescribed by the chief executive officer from time to time. Upon the death, absence, or disability of the chief executive officer and the president, the vice president or, if there is more than one, the vice presidents in the order determined by the board of directors or, in lieu of such determination, in the order determined by the chief executive officer or the president shall perform the duties and exercise the powers of the president. SECTION 4.9 ASSISTANT VICE PRESIDENT. The assistant vice president or, if there is more than one, the assistant vice presidents shall, under the supervision of the president or a vice president, perform such duties and have such powers as are prescribed by the board of directors, the chief executive officer, the president or a vice president from time to time. SECTION 4.10 SECRETARY. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, keep the minutes of such meetings, have charge of the corporate seal, if any, and stock records, be responsible for the maintenance of all corporate files and records, have 10 authority to affix the corporate seal, if any, to any instrument requiring it (and, when so affixed, attest it by his or her signature), and perform such other duties and have such other powers as are appropriate and such as are prescribed by the board of directors, the chief executive officer or the president from time to time. SECTION 4.11 ASSISTANT SECRETARY. The assistant secretary or, if there is more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary or in case such duties are specifically delegated to him or her by the board of directors, the chief executive officer, the president or the secretary, perform the duties and exercise the powers of the secretary and shall, under the supervision of the secretary, perform such other duties and have such other powers as are prescribed by the board of directors, the chief executive officer, the president or the secretary from time to time. SECTION 4.12 TREASURER. The treasurer shall have control of the funds and the care and custody of all the stocks, bonds, and other securities of the Corporation and shall be responsible for the preparation and filing of tax returns. He or she shall receive all moneys paid to the Corporation and shall have authority to give receipts and vouchers, to sign and endorse cheeks and warrants in its name and on its behalf, and give frill discharge for the same. He or she shall also have charge of the disbursement of the funds of the Corporation and shall keep frill and accurate records of the receipts and disbursements. He or she shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as shall be designated by the board of directors and shall perform such other duties and have such other powers as are appropriate and such as are prescribed by the board of directors, the chief executive officer or the president from time to time. SECTION 4.13 ASSISTANT TREASURER. The assistant treasurer or, if there is more than one, the assistant treasurers in the order determined by the board of directors shall, in the absence or disability of the treasurer or in case such duties are specifically delegated to him or her by the board of directors, the chief executive officer, the president, or the treasurer, perform the duties and exercise the powers of the treasurer and shall, under the supervision of the treasurer, perform such other duties and have such other powers as are prescribed by the board of directors, the chief executive officer, the president or the treasurer from time to time. SECTION 4.14 COMPENSATION. Officers shall receive such compensation, if any, for their services as may be authorized or ratified by the board of directors. Election or appointment as an officer shall not of itself create a right to compensation for services performed as such officer. ARTICLE 5 COMMITTEES SECTION 5.1 DESIGNATION OF COMMITTEES. The board of directors may establish committees for the performance of delegated or designated functions to the 11 extent permitted by law, each committee to consist of one or more directors of the Corporation. SECTION 5.2 COMMITTEE POWERS AND AUTHORITY. The board of directors may provide, by resolution or by amendment to these Amended and Restated Bylaws, that a committee may exercise all the power and authority of the board of directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that a committee may not exercise the power or authority of the board of directors in reference to amending the Restated Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease, or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending these Amended and Restated Bylaws; and, unless the resolution expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. SECTION 5.3 COMMITTEE PROCEDURES. To the extent the board of directors or the committee does not establish other procedures for the committee, each committee shall be governed by the procedures established in Section 3.5 (except as they relate to an annual meeting of the board of directors) and Sections 3.6, 3.7, 3.8, 3.9, 3.10 and 3.11 of these Amended and Restated Bylaws, as if the committee were the board of directors. ARTICLE 6 INDEMNIFICATION SECTION 6.1 INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. To the full extent permitted by the Corporation Law (as defined below) and any other applicable law, if any director or officer (as defined below) of the Corporation is made a party to or is involved in (for example as a witness) any proceeding (as defined below) by reason of the fact that such person is or was a director or officer of the Corporation, the Corporation (a) shall indemnify such person from and against any expenses (including but not limited to attorneys' fees), judgments, fines (including but not limited to excise taxes assessed on a person with respect to an employee plan) and amounts paid in settlement incurred by such person in such proceeding, and (b) shall pay to such person expenses (including but not limited to attorneys' fees) incurred by such person in such proceeding in advance of its final disposition. The Corporation may in its discretion (but is not obligated in any way to) indemnify and advance expenses to other employees or agents of the Corporation to the same extent as to a director or officer. Any repeal or modification of the foregoing provisions of this Article 6 for indemnification or advancement of expenses shall not affect adversely any right or protection stated in such provisions with respect to any act or omission occurring prior to the time of such repeal or modification. If any provision of this Article 6 or any part 12 thereof shall be held to be prohibited by or invalid under applicable law, such provision or part thereof shall be deemed amended to accomplish the objectives of the provision or part thereof as originally written to the full extent permitted by law and all other provisions or parts shall remain in full force and effect. SECTION 6.2 DEFINITIONS. As used in this Article 6, the following terms have the following meanings: (a) Corporation Law. The term "Corporation Law" means the DGCL as it exists on January 27, 1995, the date this Article 6 is adopted, and as the DGCL may be thereafter amended from time to time. In the case of any amendment of the DGCL after the date of adoption of this Article 6, when used with reference to an act or omission occurring prior to effectiveness of such amendment (unless prohibited by law), the term "Corporation Law" shall include such amendment only to the extent that the amendment permits a corporation to provide broader indemnification rights than the DGCL permitted prior to the amendment. (b) Director or Officer. The term "director" or "officer" means (a) a director of the Corporation or an officer of the Corporation listed in Section 4.1 of these Amended and Restated Bylaws, and (b) while an individual is a director or officer of the Corporation, the individual's serving at the Corporation's request as a director, officer, manager, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, other enterprise or employee benefit plan (including without limitation any service as a director, officer, manager, employee or agent which imposes duties on, or involves services by, such director, officer, manager, employee or agent with respect to any employee benefit plan, its participants or beneficiaries), and (c) any other position (not with the Corporation itself) in which a director or officer of the Corporation is serving at the request of the Corporation and for which indemnification by the Corporation is permitted by the Corporation Law. (c) Proceeding. The term "proceeding" means any threatened, pending or completed action, suit, or proceeding whether civil, criminal, administrative or investigative, and whether formal or informal. SECTION 6.3 INSURANCE. By action of the board of directors, notwithstanding any interest of the directors in the action, the Corporation shall have power to purchase and maintain insurance, in such amounts as the board of directors deems appropriate, on behalf of any person who is or was a director or officer of the Corporation, against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not he or she is indemnified against such liability or expense under the provisions of this Article 6 and whether or not the Corporation would have the power or would be required to indemnify him or her against such liability under the provisions of this Article 6 or of the Delaware General Corporation Law or by any other applicable law. SECTION 6.4 NONEXCLUSIVE. The indemnification and advancement of expenses provided by, or granted pursuant to, the other sections of this Article 6 shall not be 13 deemed exclusive of any other rights to which any person seeking indemnification or advancement of expenses may be entitled, under the Restated Certificate of Incorporation or under any other bylaw, agreement, insurance policy, vote of stockholders or disinterested directors, statute, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. ARTICLE 7 STOCK SECTION 7.1 CERTIFICATES. Every holder of stock in the Corporation represented by certificates and, upon request, every holder of uncertificated shares shall be entitled to have a certificate, signed by or in the name of the Corporation by the chairman, president or a vice president and by the secretary or an assistant secretary, or the treasurer or an assistant treasurer of the Corporation, certifying the number of shares owned by him or her in the Corporation. SECTION 7.2 FACSIMILE SIGNATURES. Where a certificate of stock is countersigned (1) by a transfer agent other than the Corporation or its employee or (ii) by a registrar other than the Corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature or signatures have been placed upon, any such certificate shall cease to be such officer, transfer agent or registrar, whether because of death, resignation or otherwise, before such certificate is issued, the certificate may nevertheless be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue. SECTION 7.3 TRANSFER OF STOCK. Transfers of shares of stock of the Corporation shall be made on the books of the Corporation only upon presentation of the certificate or certificates representing such shares properly endorsed or accompanied by a proper instrument of assignment, except as may otherwise be expressly provided by the laws of the State of Delaware or by order of a court of competent jurisdiction. The officers or transfer agents of the Corporation may, in their discretion, require a signature guaranty before making any transfer. SECTION 7.4 LOST CERTIFICATES. The board of directors may direct that a new certificate of stock be issued in place of any certificate issued by the Corporation that is alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen, or destroyed. When authorizing such issue of a new certificate, the board of directors may, in its discretion and as a condition precedent to the issuance of a new certificate, require the owner of such lost, stolen, or destroyed certificate, or his or her legal representative, to give the Corporation a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against the Corporation on account of the alleged loss, theft, or destruction of any such certificate or the issuance of such new certificate. SECTION 7.5 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to treat the person in whose name any shares of stock are registered on its books as the 14 owner of such shares for all purposes and shall not be bound to recognize any equitable or other claim or interest in such shares on the part of any other person, whether or not the Corporation shall have notice of such claim or interest, except as expressly provided by the laws of the State of Delaware. ARTICLE 8 SEAL The board of directors may, but need not, adopt and provide a seal which shall be circular in form and shall bear the name of the Corporation and the words "SEAL" and "DELAWARE" and which, if and when adopted, shall constitute the corporate seal of the Corporation. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or manually reproduced. ARTICLE 9 AMENDMENT Subject to the provisions of the Restated Certificate of Incorporation and to the specific provisions of these Amended and Restated Bylaws, these Amended and Restated Bylaws may at any time and from time to time be amended, altered or repealed by the board of directors, but the stockholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise. 15 -----END PRIVACY-ENHANCED MESSAGE-----