Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
GENERAL MOLY, INC.,
a Delaware corporation
ARTICLE
I.
OFFICES
1.1
Registered
Office and Registered Agent
. The registered office of General Moly, Inc.,
a Delaware corporation (the “Company”), shall be located in the State of
Delaware at such place as may be fixed from time to time by the Board of
Directors (“Board”) upon filing of such notices as may be required by law, and
the registered agent shall have a business office identical with such
registered office. Any change in the
registered agent or registered office shall be effective upon filing such
change with the Office of the Secretary of State of the State of Delaware.
1.2
Other Offices
. The Company may have other offices within or
outside the State of Delaware at such place or places as the Board may from
time to time determine or the business of the Company may require.
ARTICLE
II.
MEETINGS OF STOCKHOLDERS
2.1
Place of
Meetings
. Meetings of
stockholders of the Company shall be held at any place, within or outside the
State of Delaware, designated by the Board.
The Board may, in its sole discretion, determine that a meeting of
stockholders shall not be held at any place, but may instead be held solely by
means of remote communication as authorized by Section 211(a)(2) of
the Delaware General Corporation Law (the “DGCL”). In the absence of any such designation or
determination, stockholders’ meetings shall be held at the Company’s principal
executive office.
2.2
Annual Meeting
. An annual meeting of stockholders shall be
held for the election of directors and for such other business as may properly
come before the meeting at such date and time as may be designated by
resolution of the Board from time to time.
2.3
Special
Meeting
. Special meetings of the stockholders of the
Company, for any purpose or purposes, unless otherwise prescribed by law or the
Certificate of Incorporation, may be called only by the Board pursuant to a
resolution approved by the affirmative vote of a majority of the directors of
the Company then in office. Business
transacted at any special meeting of the stockholders shall be limited to the
purpose or purposes stated in the notice of the special meeting.
2.4
Notice of
Stockholders’ Meetings
. All
notices of meetings of stockholders shall be sent or otherwise given in
accordance with either Section 2.5 or Section 9.1 of these Bylaws
not
less than ten (10) nor more than sixty (60) days before the date
of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place, if any,
date and hour of the meeting, the means of remote communication, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called.
2.5
Manner of
Giving Notice; Affidavit of Notice
. Notice of any meeting of stockholders shall
be deemed to be given:
(i)
if
personally delivered, when delivered to the stockholder;
(ii)
if
mailed, when deposited in the United States mail, postage prepaid, directed to
the stockholder at his or her address as it appears on the Company’s records;
or
(iii)
if
electronically transmitted, as provided in Section 9.1 of these Bylaws.
An affidavit of the
Secretary of the Company (the “Secretary”) or an Assistant Secretary of the
Company (“Assistant Secretary”) or of the transfer agent or any other agent of
the Company that the notice has been given by mail or by a form of electronic
transmission, as applicable, shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
2.6
Quorum
. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, at each meeting of stockholders
the presence in person or by proxy of the holders of shares of stock having a
majority of the voting power of the issued and outstanding shares of stock
entitled to vote at the meeting shall be necessary and sufficient to constitute
a quorum. Abstentions and broker votes
and broker non-votes (only when accompanied by broker votes with respect to at
least one matter at the meeting) are
considered present and entitled to vote for purposes of establishing a quorum
for the transaction of business at the meeting of stockholders. A “broker vote” occurs when a broker votes
the shares on any matter pursuant to either (i) the voting instructions
and authority received from its client who is the beneficial owner of the
shares or (ii) the broker’s discretionary authority to vote the shares
under the applicable rules and regulations of the NYSE or other national
securities exchange governing the voting authority of brokers. A “broker non-vote” occurs when a broker has
not received voting instructions from its client who is the beneficial owner of
the shares and the broker is barred from exercising its discretionary authority
to vote the shares under the applicable rules and regulations of the NYSE
or other securities exchange governing the voting authority of brokers. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the person
presiding over the meeting, or (ii) holders of shares of capital stock
having a majority of the voting power of the stock present or represented by
proxy at the meeting, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present or represented.
2.7
Adjourned
Meeting; Notice
. Any meeting
of stockholders, annual or special, may adjourn from time to time to reconvene
at the same or some other place, and notice need not be given of the adjourned
meeting if the time, place if any thereof, and the means of remote
communications if any by which stockholders and proxy holders may be deemed to
be present in person and vote at such adjourned meeting are announced at the
meeting at which the
2
adjournment
is taken. At the continuation of the
adjourned meeting, the Company may transact any business which might have been
transacted at the original meeting. If
the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2.8
Conduct of
Business
.
(i)
Meetings
of stockholders shall be presided over by the Chair of the Board, if any, or in
his or her absence by the Vice Chair of the Board, if any, or in his or her
absence by the President, or in his or her absence by a Vice President, or in
the absence of the foregoing persons by a Chair designated by the Board, or in
the absence of such designation by a Chair chosen at the meeting.
(ii)
The
Secretary shall act as secretary of the meeting, but in his or her absence any
Assistant Secretary may act as secretary, and in the absence of the Secretary
and any Assistant Secretary the person presiding over the meeting may appoint
any person to act as secretary of the meeting.
(iii)
The
date and time of the opening and closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting
by the person presiding over the meeting.
The Board may adopt by resolution such rules and regulations for
the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board, the person presiding over any meeting of
stockholders shall have the right and authority to convene and to adjourn the
meeting, to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such presiding person, are appropriate for the
proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or prescribed by
the person presiding over the meeting, may include, without limitation, the
following: (a) the establishment of an agenda or order of business for the
meeting; (b) the opening and closing of the polls; (c) rules and
procedures for maintaining order at the meeting and the safety of those
present; (d) limitations on attendance at or participation in the meeting
to stockholders of record of the Company, their duly authorized and constituted
proxies or such other persons as the person presiding over the meeting shall
determine; (e) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (f) limitations on the time allotted to
questions or comments by participants.
The person presiding over any meeting of stockholders, in addition to
making any other determinations that may be appropriate to the conduct of the
meeting, shall, if the facts warrant, determine and declare to the meeting that
a matter or business was not properly brought before the meeting and if such
presiding person shall so determine, such presiding person shall so declare to
the meeting and any such matter or business not properly brought before the
meeting shall not be transacted or considered.
Unless and to the extent determined by the Board or the person presiding
over the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
2.9
Voting
. The stockholders entitled to vote at any meeting
of stockholders shall be determined in accordance with the provisions of
Sections 2.11 and 2.14 of these Bylaws, subject
3
to
Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners
of stock) and Section 218 (relating to voting trusts and other voting
agreements) of the DGCL.
Except as may be otherwise
provided in the Certificate of Incorporation or these Bylaws, each stockholder
shall be entitled to one vote for each share of capital stock held by such
stockholder. Voting at meetings of
stockholders need not be by written ballot unless so determined by the holders
of shares of stock having a majority of the voting power of all outstanding
shares of stock entitled to vote thereon which are present in person or by
proxy at such meeting. At all meetings
of stockholders for the election of directors, a plurality of the votes of all
shares of stock present in person or represented by proxy at the meeting and
entitled to vote on the election of directors shall be sufficient to
elect. All matters other than the
election of directors shall, unless otherwise provided by law, the Certificate
of Incorporation, these Bylaws or the rules or regulations of a national
securities exchange applicable to the Company or its Securities, be decided by
the holders of a majority of the voting power of all shares of stock present in
person or represented by proxy at the meeting and entitled to vote on the
subject matter. In the election of directors, abstentions and
broker non-votes shall not be counted as present or entitled to vote. In all other matters, abstentions shall be
counted as present and entitled to vote but broker non-votes shall not be
counted as present or entitled to vote.
2.10
Notice of Stockholder
Business and Nominations.
(i)
Annual
Meetings of Stockholders
.
(a)
Nominations of persons for
election to the Board and the proposal of other business to be considered by
the stockholders may be made at an annual meeting of stockholders only (1) pursuant
to the Company’s notice of meeting (or any supplement thereto), (2) by or
at the direction of the Board or any committee thereof or (3) by any
stockholder of the Company who was a stockholder of record of the Company at
the time the notice provided for in this Section 2.10 is delivered to the
Secretary, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section 2.10.
(b)
For any nominations or other
business to be properly brought before an annual meeting by a stockholder
pursuant to clause (3) of paragraph (i)(a) of this Section 2.10,
the stockholder must have given timely notice thereof in writing to the
Secretary and any such proposed business other than the nominations of persons
for election to the Board must constitute a proper matter for stockholder
action. To be timely, a stockholder’s
notice shall be delivered to the Secretary at the principal executive offices
of the Company not later than the close of business on the ninetieth (90th)
day, nor earlier than the close of business on the one hundred
twentieth (120th) day, prior to the first anniversary of the preceding
year’s annual meeting. In no event shall
the public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
stockholder’s notice as described above.
Such stockholder’s notice shall set forth: (1) as to each person
whom the stockholder proposes to nominate for election as a director (A) all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to and in accordance with
Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and (B) such person’s written consent to being named in the proxy
statement as
4
a nominee, to serving as a
director if elected; and otherwise complying with requirements contained in the
Company’s corporate governance guidelines; (2) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the text of the
proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the Bylaws of the Company, the language of the proposed amendment), the reasons
for conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (3) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is
made (A) the name and address of such stockholder, as they appear on the
Company’s books, and of such beneficial owner, (B) the class or series and
number of shares of capital stock of the Company which are owned beneficially
and of record by such stockholder and such beneficial owner, (C) a
description of any agreement, arrangement or understanding with respect to the
nomination or proposal between or among such stockholder and such beneficial
owner, any of their respective affiliates or associates, and any others acting
in concert with any of the foregoing, (D) a description of any agreement,
arrangement or understanding (including any derivative or short positions,
profit interests, options, warrants, stock appreciation or similar rights,
hedging transactions, and borrowed or loaned shares) that has been entered into
as of the date of the stockholder’s notice by, or on behalf of, such
stockholder and such beneficial owners, the effect or intent of which is to
mitigate loss to, manage risk or benefit of share price changes for, or
increase or decrease the voting power of, such stockholder or such beneficial
owner, with respect to shares of stock of the Company, (E) a
representation that the stockholder is a holder of record of stock of the
Company entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to propose such business or nomination, and (F) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (i) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the Company’s
outstanding capital stock required to approve or adopt the proposal or elect
the nominee and/or (ii) otherwise to solicit proxies from stockholders in
support of such proposal or nomination.
The foregoing notice requirements of this Section 2.10 shall be
deemed satisfied by a stockholder with respect to business other than a
nomination if the stockholder has notified the Company of his, her or its
intention to present a proposal at an annual meeting in compliance with
applicable rules and regulations promulgated under the Exchange Act and
such stockholder’s proposal has been included in a proxy statement that has been
prepared by the Company to solicit proxies for such annual meeting. The Company may require any proposed nominee
to furnish such other information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a director of the Company.
(c)
Notwithstanding anything in
the second sentence of paragraph (i)(b) of this Section 2.10 to
the contrary, in the event that the number of directors to be elected to the
Board is increased effective at the annual meeting and there is no public
announcement by the Company naming the nominees for the additional
directorships at least one hundred (100) days prior to the first
anniversary of the preceding year’s annual meeting, a stockholder’s notice
required by this Section 2.10 shall also be considered timely, but only
with respect to nominees for the additional directorships, if it shall be
delivered to the Secretary at the principal executive offices of the Company
not later than the close of business on the tenth (10th) day following the
day on which such public announcement is first made by the Company.
5
(ii)
Special
Meetings of Stockholders
. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the Company’s notice of meeting.
Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected pursuant
to the Company’s notice of meeting (a) by or at the direction of the Board
or any committee thereof or (b) provided that the Board has determined
that directors shall be elected at such meeting, by any stockholder of the
Company who is a stockholder of record at the time the notice provided for in
this Section 2.10 is delivered to the Secretary, who is entitled to vote
at the meeting and upon such election and who complies with the notice
procedures set forth in this Section 2.10.
In the event the Company calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board, any such stockholder
entitled to vote in such election of directors may nominate a person or persons
(as the case may be) for election to such position(s) as specified in the
Company’s notice of meeting, if the stockholder’s notice required by
paragraph (i)(b) of this Section 2.10 shall be delivered to the
Secretary at the principal executive offices of the Company not earlier than
the close of business on the one hundred twentieth (120th) day prior to
such special meeting and not later than the close of business on the later of
the ninetieth (90th) day prior to such special meeting or the tenth
(10th) day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board to be
elected at such meeting. In no event
shall the public announcement of an adjournment or postponement of a special
meeting commence a new time period (or extend any time period) for the giving
of a stockholder’s notice as described above.
(iii)
General
.
(a)
Only such persons who are
nominated in accordance with the procedures set forth in this Section 2.10
shall be eligible to be elected at an annual or special meeting of stockholders
of the Company to serve as directors and only such business shall be conducted
at a meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 2.10. Except as otherwise provided by law, the
person presiding over the meeting shall have the power and duty (1) to
determine whether a nomination or any business proposed to be brought before
the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 2.10 (including whether the
stockholder or beneficial owner, if any, on whose behalf the nomination or
proposal is made solicited (or is part of a group which solicited) or did not
so solicit, as the case may be, proxies in support of such stockholder’s nominee
or proposal in compliance with such stockholder’s representation as required by
clause (i)(b)(3)(D) of this Section 2.10) and (2) if any
proposed nomination or business was not made or proposed in compliance with
this Section 2.10, to declare that such nomination shall be disregarded or
that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of
this Section 2.10, unless otherwise required by law, if the stockholder
(or a qualified representative of the stockholder) does not appear at the
annual or special meeting of stockholders of the Company to present a
nomination or proposed business, such nomination shall be disregarded and such
proposed business shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the Company. For purposes of this Section 2.10, to be
considered a qualified representative of the stockholder, a person must be a
duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the
6
meeting of stockholders and
such person must produce such writing or electronic transmission, or a reliable
reproduction of the writing or electronic transmission, at the meeting of
stockholders.
(b)
For purposes of this Section 2.10,
“public announcement” shall include disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable national news service or
in a document publicly filed by the Company with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(c)
Notwithstanding the foregoing
provisions of this Section 2.10, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.10;
provided however, that any references in these Bylaws to the Exchange Act or
the rules promulgated thereunder are not intended to and shall not limit
any requirements applicable to nominations or proposals as to any other
business to be considered pursuant to this Section 2.10 (including
paragraphs (i)(a)(3) and (ii) hereof), and compliance with
paragraphs (i)(a)(3) and (ii) of this Section 2.10 shall be
the exclusive means for a stockholder to make nominations or submit other
business (other than matters brought properly under and in compliance with Rule 14a-8
of the Exchange Act, as may be amended from time to time). Nothing in this Section 2.10 shall be
deemed to affect any rights (1) of stockholders to request inclusion of
proposals in the Company’s proxy statement pursuant to applicable rules and
regulations promulgated under the Exchange Act or (2) of the holders of
any series of preferred stock to elect directors pursuant to any applicable
provisions of the Certificate of Incorporation.
2.11
Record Date for
Stockholder Notice; Voting
. In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, 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 may 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 and which record date:
(i)
in
the case of determination of stockholders entitled to notice of or to vote at
any meeting of stockholders or adjournment thereof, shall, unless otherwise
required by law, not be more than sixty (60) nor less than ten (10) days
before the date of such meeting; and
(ii)
in
the case of determination of stockholders for any other action, shall not be
more than sixty (60) days prior to such other action.
If no record date is fixed
by the Board:
(a)
the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; and
7
(b)
the record date for
determining stockholders for any other purpose shall be at the close of
business on the day on which the Board adopts the resolution relating thereto.
A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
2.12
Proxies
. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for such
stockholder by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure
established for the meeting, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer
period. The revocability of a proxy that
states on its face that it is irrevocable shall be governed by the provisions
of Section 212 of the DGCL.
2.13
List of
Stockholders Entitled to Vote
. The officer who has charge of the stock
ledger of the Company shall prepare and make, at least ten (10) 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 of each stockholder and the number of shares registered in the name
of each stockholder. The Company shall
not be required to include electronic mail addresses or other electronic
contact information on such list. Such
list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of at least ten (10) days prior
to the meeting: (i) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided
with the notice of the meeting, or (ii) during ordinary business hours, at
the Company’s principal executive office.
In the event that the Company determines to make the list available on
an electronic network, the Company may take reasonable steps to ensure that
such information is available only to stockholders of the Company. If the meeting is to be held at a place, then
the list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present. If the meeting is to be held
solely by means of remote communication, then the list shall also be open to
the examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to
access such list shall be provided with the notice of the meeting. Such list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them. Failure to
comply with the requirements of this Section shall not affect the validity
of any action taken at such meeting.
2.14
Inspectors
. For each election of directors by the
stockholders and in any other case in which it shall be advisable, in the
opinion of the Board, that the voting upon any matter shall be conducted by
inspectors of election, the Board shall appoint an inspector or inspectors of
election. If, for any such election of
directors or the voting upon any such other matter, any inspector appointed by
the Board shall be unwilling or unable to serve, or if the Board shall fail to
appoint inspectors, the chairperson of the meeting shall appoint the necessary
inspector or inspectors. The inspector(s) so
appointed, before entering upon the discharge of their duties, shall be sworn
faithfully to execute the duties of inspectors with strict impartiality, and
according to the best of their ability, and the oath so taken shall be
subscribed by them. Such inspectors
8
shall determine the number of shares
of capital stock of the Company outstanding and the voting power of each of the
shares represented at the meeting, the existence of a quorum, and the validity
and effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the
person presiding over the meeting or any stockholder entitled to vote thereat,
the inspectors shall make a report in writing of any challenge, question or
matter determined by them and shall execute a certificate of any fact found by
them. No director or candidate for the
office of director shall act as an inspector of election of directors. Inspectors need not be stockholders.
2.15
No Action Without
Stockholder Meeting
. Any action
required or permitted to be taken by the stockholders of the Company must be
effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such holders.
9
ARTICLE
III.
DIRECTORS
3.1
Powers
. Subject to the provisions of the DGCL and any
limitations in the Certificate of Incorporation or these Bylaws relating to
action required to be approved by the stockholders or by the outstanding
shares, the business and affairs of the Company shall be managed and all
corporate powers shall be exercised by or under the direction of the Board.
3.2
Number of
Directors
. The Board
shall consist of not less than one (1) person nor more than
fifteen (15) persons, who shall be elected for a term as set forth in Section 3.3
of these Bylaws, and shall hold office until their successors are elected and
qualify. Directors need not be
stockholders or residents of the State of Delaware. In addition to the powers and authorities
expressly conferred upon the Company by these Bylaws and the Certificate of
Incorporation, the Board may exercise all such powers of the Company and do all
such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done
by the stockholders.
3.3
Election,
Qualification and Term of Office of Directors
. The directors shall be divided into
three (3) classes, as nearly equal in number as possible. The term of office of the first class shall
expire at the 2008 annual meeting of the stockholders of the Company; the term
of office of the second class shall expire at the 2009 annual meeting of the
stockholders of the Company; and the term of office of the third class shall
expire at the 2010 annual meeting of the stockholders of the Company. At each annual meeting of the stockholders
after such classification, the number of directors equal to the number of the
class whose term expires on the day of such meeting shall be elected for a term
of three (3) years. Directors
shall hold office until expiration of the terms for which they were elected and
qualified; provided, however, that any director may be removed from office as a
director at any time by the stockholders, but only for cause, only at a duly
called annual or special meeting of stockholders, and only by the affirmative
vote of a majority of the outstanding voting power entitled to elect such
director. If the office of any director
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office, increase in the number of directors or otherwise, a
majority of the remaining directors, although less than a quorum, at a meeting
called for that purpose, or a sole remaining director, shall choose a
successor, and the director so chosen shall hold office until the expiration of
the term of the class for which appointed or until a successor is duly elected
and qualified, or until such director’s earlier resignation or removal.
3.4
Resignation and
Vacancies
. Any
director may resign at any time upon notice given in writing or by electronic
transmission to the Company. When one or
more directors so resigns and the resignation is effective at a future date, a
majority of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in this Section 3.4 in
the filling of other vacancies.
Unless otherwise provided in
the Certificate of Incorporation or these Bylaws:
10
(i)
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the right to vote
as a single class shall be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director.
(ii)
Whenever
the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of the Certificate of
Incorporation, vacancies and newly created directorships of such class or
classes or series shall be filled by a majority of the directors elected by
such class or classes or series thereof then in office, or by a sole remaining
director so elected.
If at any time, by reason
of death or resignation or other cause, the Company should have no directors in
office, then any officer or any stockholder or an executor, administrator,
trustee or guardian of a stockholder, or other fiduciary entrusted with like
responsibility for the person or estate of a stockholder, may call a special
meeting of stockholders in accordance with the provisions of the Certificate of
Incorporation or these Bylaws, or may apply to the Court of Chancery for a
decree summarily ordering an election as provided in Section 211 of the
DGCL.
If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), then the Court of Chancery may, upon
application of any officer or any stockholder or stockholders holding at least
10% of the total number of the shares at the time outstanding having the right
to vote for such directors, summarily order an election to be held to fill any
such vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office as aforesaid, which election shall be
governed by the provisions of Section 211 of the DGCL as far as
applicable.
3.5
Place of Meetings; Meetings by Telephone
.
The Board may hold meetings, both regular and special, either within or
outside the State of Delaware.
Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of the
Board, or any committee designated by the Board, may participate in a meeting
of the Board, or any committee, by means of conference telephone or other
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 the meeting.
3.6
Regular Meetings
. Regular
meetings of the Board may be held without notice at such time and at such place
as shall from time to time be determined by the Board.
3.7
Special Meetings; Notice
.
Special meetings of the
Board for any purpose or purposes may be called at any time by the Chair of the
Board, the Chief Executive Officer, the President, the Secretary or any two
directors. Notice of the time and place
of special meetings shall be:
(i)
delivered
personally by hand, by courier or by telephone;
(ii)
sent
by United States first-class mail, postage prepaid;
11
(iii)
sent
by facsimile; or
(iv)
sent
by electronic mail,
directed to each director
at that director’s address, telephone number, facsimile number or electronic
mail address, as the case may be, as shown on the Company’s records.
If the notice is (a) delivered
personally by hand, by courier or by telephone, (b) sent by facsimile or (c) sent
by electronic mail, it shall be delivered or sent at least
twenty-four (24) hours before the time of the holding of the meeting. If the notice is sent by United States mail,
it shall be deposited in the United States mail at least four (4) days
before the time of the holding of the meeting.
Any oral notice may be communicated to the director. The notice need not specify the place of the
meeting (if the meeting is to be held at the Company’s principal executive
office) nor the purpose of the meeting.
3.8
Quorum
. At all
meetings of the Board, a majority of the total number of acting directors shall
constitute a quorum for the transaction of business. The vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board, except as may be otherwise specifically provided by statute, the
Certificate of Incorporation or these Bylaws.
If a quorum is not present at any meeting of the Board, then the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present.
A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for that meeting.
3.9
Board Action by Written Consent Without a Meeting
.
Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting of the
Board, or of any committee thereof, may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing or by electronic transmission and the writing or writings or electronic
transmission or transmissions are filed with the minutes of proceedings of the
Board or committee. Such filing shall be
in paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
3.10
Fees and Compensation of Directors
.
Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, the Board shall have the authority to fix the compensation of
directors.
3.11
Removal of Directors
. Unless
otherwise restricted by statute, the Certificate of Incorporation or these
Bylaws, so long as the Board is classified as provided in Section 141(d) of
the DGCL, any director or the entire Board may be removed, only for cause, by
the holders of a majority of the shares then entitled to vote at an election of
directors.
No reduction of the
authorized number of directors shall have the effect of removing any director
prior to the expiration of such director’s term of office.
12
ARTICLE IV.
COMMITTEES
4.1
Committees of Directors
. The Board, by
resolution adopted by a majority of the full Board, may designate from among
its members an executive committee and one or more other committees each of
which, to the extent provided in such resolution of the Certificate of
Incorporation or these Bylaws, shall have and may exercise all the authority of
the Board; except that no such committee shall have the authority to: (i) declare
dividends, except at a rate or in periodic amount determined by the Board; (ii) approve
or recommend to stockholders actions or proposals required by this title to be
approved by stockholders; (iii) fill vacancies on the Board or any
committee thereof; (iv) amend the Bylaws; (v) authorize or approve
the reacquisition of shares, unless pursuant to general formula or method
specified by the Board; (vi) fix compensation of any director for serving
on the Board or on any committee; (vii) approve a plan of merger,
consolidation, or exchange of shares not requiring stockholder approval; (viii) reduce
earned or capital surplus; or (ix) appoint other committees of the Board
or the members thereof.
4.2
Committee Minutes
. Each
committee shall keep regular minutes of its meetings and report the same to the
Board when required, and minutes of all committee meetings so kept shall be
maintained by the Secretary of the Company in the Company’s minute book.
ARTICLE V.
OFFICERS
5.1
Officers
. The officers
of the Company shall be a chief executive officer and/or president and a
secretary. The Company may also have, at
the discretion of the Board, a chair of the Board, a vice chair of the Board, a
chief executive officer, a chief financial officer or treasurer, one or more
vice presidents, one or more assistant vice presidents, one or more assistant treasurers,
one or more assistant secretaries, and any such other officers with such titles
as may be appointed in accordance with the provisions of these Bylaws. Any number of offices may be held by the same
person.
5.2
Appointment of Officers
. The Board
shall appoint the officers of the Company, except such officers as may be
appointed in accordance with the provisions of Sections 5.3 and 5.5 of
these Bylaws, subject to the rights, if any, of an officer under any contract
of employment.
5.3
Subordinate Officers
. The Board may
appoint, or empower the Chief Executive Officer or, in the absence of a chief
executive officer, the President, to appoint, such other officers and agents as
the business of the Company may require.
Each of such officers and agents shall hold office for such period, have
such authority, and perform such duties as are provided in these Bylaws or as
the Board may from time to time determine.
5.4
Removal and Resignation of Officers
.
(i)
Subject
to the rights, if any, of an officer under any contract of employment, any
officer may be removed, either with or without cause, by an affirmative vote of
the majority of the Board at any regular or special meeting of the Board or,
except in the case of
13
an officer
chosen by the Board, by any officer upon whom such power of removal may be
conferred by the Board.
(ii)
Any
officer may resign at any time by giving written notice to the Company. Any resignation shall take effect at the date
of the receipt of that notice or at any later time specified in that
notice. Unless otherwise specified in
the notice of resignation, the acceptance of the resignation shall not be
necessary to make it effective. Any
resignation is without prejudice to the rights, if any, of the Company under
any contract to which the officer is a party.
5.5
Vacancies in Offices
. Any vacancy
occurring in any office of the Company shall be filled by the Board or as
provided in Section 5.2.
5.6
Representation of Shares of Other Corporations
.
The Chair of the Board, the President, any Vice President, the
Treasurer, the Secretary or Assistant Secretary of the Company, or any other
person authorized by the Board or the President or a Vice President, is authorized
to vote, represent, and exercise on behalf of the Company all rights incident
to any and all shares of any other corporation or corporations standing in the
name of the Company. The authority
granted herein may be exercised either by such person directly or by any other
person authorized to do so by proxy or power of attorney duly executed by such
person having the authority.
5.7
Authority and Duties of Officers
.
All officers of the Company shall respectively have such authority and
perform such duties in the management of the business of the Company as may be
designated from time to time by the Board or the stockholders and, to the
extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board. The
Secretary shall have responsibility for preparing minutes of the directors’ and
stockholders’ meetings and authenticating records of the Company.
5.8
Bonds of Officers
. If required by the Chair of the Board or the
Board, any officer of the Company shall give a bond for the faithful discharge
of his or her duties in such amount and with such surety or sureties as the
Board may require.
ARTICLE VI.
RECORDS AND REPORTS
6.1
Maintenance and Inspection of Records
.
The Company shall, either at its principal executive office or at such
place or places as designated by the Board, keep a record of its stockholders
listing their names and addresses and the number and class of shares held by
each stockholder, a copy of these Bylaws as amended to date, accounting books,
and other records.
Any stockholder of
record, in person or by attorney or other agent, shall, upon written demand
under oath stating the purpose thereof, have the right during the usual hours
for business to inspect for any proper purpose the Company’s stock ledger, a list
of its stockholders, and its other books and records and to make copies or
extracts therefrom. A proper purpose
shall mean a purpose reasonably related to such person’s interest as a
stockholder. In every instance where an
attorney or other agent is the person who seeks the right to inspection, the
demand under oath
14
shall be accompanied by a
power of attorney or such other writing that authorizes the attorney or other
agent so to act on behalf of the stockholder.
The demand under oath shall be directed to the Company at its registered
office in Delaware or at its principal executive office.
6.2
Inspection by Directors
. Any director
shall have the right to examine the Company’s stock ledger, a list of its
stockholders, and its other books and records for a purpose reasonably related
to his or her position as a director.
The Delaware Court of Chancery is hereby vested with the exclusive
jurisdiction to determine whether a director is entitled to the inspection
sought. The Court may summarily order
the Company to permit the director to inspect any and all books and records,
the stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in its discretion, prescribe
any limitations or conditions with reference to the inspection, or award such
other and further relief as the Court may deem just and proper.
6.3
Annual Report
. The Company
shall cause an annual report to be sent to the stockholders of the Company to
the extent required by applicable law.
If and so long as there are fewer than one hundred (100) holders of
record of the Company’s shares, the requirement of sending of an annual report
to the stockholders of the Company is expressly waived (to the extent permitted
under applicable law).
ARTICLE VII.
SHARES
7.1
Certificates of Stock
. Shares of stock of the Company shall be
represented by certificates, provided that the Board may provide by resolution
or resolutions that some or all of any or all classes or series of stock shall
be uncertificated shares. Each holder of
stock represented by a certificate shall be entitled to a certificate signed
by, or in the name of the Company by, the Chair of the Board, Chief Executive Officer,
President or a Vice President, and by the Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer, certifying the number of shares
owned by him or her. Any or all of the
signatures on the certificate may be by facsimile.
7.2
Transfers of Stock.
Where shares of stock are represented by a
certificate, transfers of shares shall be made only upon the transfer books of
the Company kept at an office of the Company or by transfer agents designated
to transfer shares of the stock of the Company, and where shares of stock are
uncertificated, such shares may be transferred in accordance with applicable
law.
7.3
Lost, Stolen or Destroyed
Certificates
. In the
event of the loss, theft or destruction of any certificate of stock, another
may be issued in its place pursuant to such regulations as the Board may
establish concerning proof of such loss, theft or destruction and concerning
the giving of satisfactory bond or bonds of indemnity.
7.4
Fractional Shares or Scrip
. The Company may: (i) issue fractions of
a share which shall entitle the holder to exercise voting rights, to receive
dividends thereon, and to participate in any of the assets of the Company in
the event of liquidation; (ii) arrange for the disposition of the
fractional interests by those entitled thereto; (iii) pay in cash the fair
value of
15
fractions of a share as of the time when those entitled to receive such
shares are determined; or (iv) issue scrip in registered or bearer form
which shall entitle the holder to receive a certificate for a full share upon
the surrender of such scrip aggregating a full share. The Board may cause such scrip to be issued
subject to the condition that it shall become void if not exchanged for full
shares before a specified date, or subject to the condition that the shares for
which such scrip is exchangeable may be sold by the Company and the proceeds
thereof distributed to the holders of such scrip, or subject to any other
conditions which the Board may deem advisable.
7.5
Issuance/Consideration
.
(i)
Shares
may be issued at a price determined by the Board, or the Board may set a
minimum price or establish a formula or method by which the price may be
determined. Consideration for shares may
consist of cash, promissory notes, services performed, and any other lawful
form of consideration, including tangible or intangible property. If shares are issued for other than cash, the
Board shall determine the value of the consideration. Shares issued when the Company receives the consideration
determined by the Board are validly issued, fully paid and nonassessable. A good faith judgment of the Board as to the
value of the consideration received for shares is conclusive.
(ii)
The
Company may place shares issued for a contract for future services or a
promissory note in escrow, or make other arrangements to restrict the transfer
of the shares, and make credit distributions in respect of the shares against
their purchase price, until the services are performed or the note is paid. If the services are not performed or the note
is not paid, the shares escrowed or restricted and the distributions credited
may be cancelled in whole or in part.
7.6
Regulations
. The issue, transfer, conversion and
registration of certificates of stock or uncertificated shares shall be
governed by such other regulations as the Board may establish.
ARTICLE VIII.
GENERAL MATTERS
8.1
Construction; Definitions
.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the DGCL shall govern the construction of
these Bylaws. Without limiting the
generality of this provision, the singular number includes the plural, the
plural number includes the singular, and the term “person” includes both a
corporation and a natural person.
8.2
Dividends
.
(i)
Declaration
of Dividends
.
Dividends upon the capital stock of the Company, subject to the
provisions of the Certificate of Incorporation and applicable law, if any, may
be declared by the Board pursuant to law at any regular or special
meeting. Dividends may be paid in cash,
in property, or in shares of the capital stock, subject to the provisions of
the Certificate of Incorporation and applicable law.
16
(ii)
Dividend
Reserve
. Before payment of
any dividend, there may be set aside out of any funds of the Company available
for dividends such sum or sums as the Board from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any property of
the Company, or for such other purpose as the Board shall think conducive to
the interests of the Company, and the Board may modify or abolish any such
reserve in the manner in which it was created.
8.3
Fiscal Year
. The fiscal
year of the Company shall be fixed by resolution of the Board and may be
changed by the Board.
8.4
Seal
. The Company
may adopt a corporate seal, which shall be adopted and which may be altered by
the Board. The Company may use the
corporate seal by causing it or a facsimile thereof to be impressed or affixed
or in any other manner reproduced.
8.5
Waiver of Notice
. Whenever
notice is required to be given under any provision of the DGCL, the Certificate
of Incorporation or these Bylaws, a written waiver, signed by the person
entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person 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. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice or any waiver by
electronic transmission unless so required by the Certificate of Incorporation
or these Bylaws.
ARTICLE IX.
NOTICE BY ELECTRONIC TRANSMISSION
9.1
Notice by Electronic Transmission
.
Without limiting the manner by which notice otherwise may be given
effectively to stockholders pursuant to the DGCL, the Certificate of
Incorporation or these Bylaws, any notice to stockholders given by the Company
under any provision of the DGCL, the Certificate of Incorporation or these
Bylaws shall be effective if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the
stockholder by written notice to the Company.
Any such consent shall be deemed revoked if:
(i)
the
Company is unable to deliver by electronic transmission two consecutive notices
given by the Company in accordance with such consent; and
(ii)
such
inability becomes known to the Secretary or an Assistant Secretary or to the
transfer agent, or other person responsible for the giving of notice.
However, the inadvertent
failure to treat such inability as a revocation shall not invalidate any
meeting or other action.
Any notice given pursuant
to the preceding paragraph shall be deemed given:
17
(a)
if by facsimile telecommunication, when
directed to a number at which the stockholder has consented to receive notice;
(b)
if by electronic mail, when directed to
an electronic mail address at which the stockholder has consented to receive
notice;
(c)
if by a posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon
the later of (1) such posting and (2) the giving of such separate
notice; and
(d)
if by any other form of electronic transmission,
when directed to the stockholder.
An affidavit of the
Secretary or an Assistant Secretary or of the transfer agent or other agent of
the Company that the notice has been given by a form of electronic transmission
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein.
9.2
Definition of Electronic Transmission
.
An “electronic transmission” means any form of communication, not
directly involving the physical transmission of paper, that creates a record
that may be retained, retrieved, and reviewed by a recipient thereof, and that
may be directly reproduced in paper form by such a recipient through an
automated process.
9.3
Inapplicability
. Notice by a
form of electronic transmission shall not apply to Sections 164, 296, 311,
312 or 324 of the DGCL.
ARTICLE X.
INDEMNIFICATION
10.1
Indemnification of Directors and Officers
.
The Company shall indemnify and hold harmless, to the fullest extent
permitted by the DGCL as it presently exists or may hereafter be amended, any
director or officer of the Company who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a “Proceeding”) by
reason of the fact that he or she, or a person for whom he or she is the legal
representative, is or was a director, officer, employee or agent of the Company
or is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person in connection with any such Proceeding. The Company shall be required to indemnify a
person in connection with a Proceeding initiated by such person only if the
Proceeding was authorized by the Board.
10.2
Indemnification of Others
.
The Company shall have the power to indemnify and hold harmless, to the
extent permitted by applicable law as it presently exists or may hereafter be
amended, any employee or agent of the Company who was or is made or is
threatened to be made a party or is otherwise involved in any Proceeding by
reason of the fact that he or she, or a person for whom he or she is the legal
representative, is or was an employee or agent of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust, enterprise or
non-profit
18
entity, including service
with respect to employee benefit plans, against all liability and loss suffered
and expenses reasonably incurred by such person in connection with any such
Proceeding.
10.3
Prepayment of Expenses
. The Company
shall pay the expenses incurred by any officer or director of the Company, and
may pay the expenses incurred by any employee or agent of the Company, in
defending any Proceeding in advance of its final disposition; provided,
however, that the payment of expenses incurred by a person in advance of the
final disposition of the Proceeding shall be made only upon receipt of an
undertaking by the person to repay all amounts advanced if it should be
ultimately determined that the person is not entitled to be indemnified under
this ARTICLE X or otherwise.
10.4
Determination: Claim
. If a claim
for indemnification or payment of expenses under this ARTICLE X is not paid in
full within sixty days after a proper written claim therefor has been received
by the Company, the claimant may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In
any such action the Company shall have the burden of proving that the claimant
was not entitled to the requested indemnification or payment of expenses under
applicable law.
10.5
Non-Exclusivity of Rights
.
The rights conferred on any person by this ARTICLE X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, these Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
10.6
Insurance
. The Company
may purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Company, or is or was serving at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise 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 the
Company would have the power to indemnify him or her against such liability
under the provisions of the DGCL.
10.7
Other Indemnification
. The Company’s
obligation, if any, to indemnify any person who was or is serving at its
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or non-profit entity shall be
reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or non-profit
enterprise.
10.8
Amendment or Repeal
. Any repeal or
modification of the foregoing provisions of this ARTICLE X shall not adversely
affect any right or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or modification.
ARTICLE XI.
AMENDMENTS
11.1
By Stockholders
. Except as
provided in the next sentence, these Bylaws may be altered, amended or repealed
by the affirmative vote of the holders of not less than two-
19
thirds (2/3) of the
outstanding voting power entitled to vote.
Notwithstanding the foregoing, the provisions of Sections 2.3, 3.3,
3.4, 3.11 and 11.1 and ARTICLE X of these Bylaws may not be altered, amended or
repealed in whole or in part, unless authorized by the affirmative vote of the
holders of not less than eighty percent (80%) of the outstanding voting
power entitled to vote. Notwithstanding
anything herein to the contrary, to be effective, any action on these Bylaws by
the stockholders must be effected at a duly called annual or special meeting of
stockholders, and such action must have been described or referred to in the
notice of such meeting.
11.2
By Directors
. The Board
shall have the power to make, alter, amend and repeal the Bylaws of this
corporation. However, any such Bylaws,
or any alteration, amendment or repeal of the Bylaws, may be changed or
repealed by the stockholders in accordance with the provisions of Section 11.1
of these Bylaws.
11.3
Emergency Bylaws
. The Board may
adopt emergency Bylaws pursuant to Section 110 of the DGCL, which shall be
operative during any emergency in the conduct of the business of the company
resulting from an attack on the United States or any nuclear or atomic
disaster.
Effective as of March 3,
2010
20
Exhibit
99.1
General Moly, Inc. — NYSE Amex and TSX: GMO
1726
Cole Blvd., Suite 115
Lakewood,
CO 80401
Phone:
(303) 928-8599
Fax:
(303) 928-8598
GENERAL
MOLY ANNOUNCES SIGNIFICANT INVESTMENT FROM HANLONG, POSCO COMMITS TO 20% MT.
HOPE EQUITY INTEREST
INVESTMENTS ANTICIPATED TO FULLY FUND THE MT. HOPE PROJECT
LAKEWOOD,
COLORADO —
March 5, 2010, General Moly (NYSE Amex and TSX:
GMO) announced a significant investment and strategic relationship with Hanlong
(USA) Mining Investment Inc., a wholly-owned subsidiary of Sichuan Hanlong
Group (Hanlong), that is anticipated to provide full project funding for the
Company’s 80% owned Mt. Hope project.
Highlights
of the transaction include:
·
$665 million bank loan from a Prime Chinese
Bank to be procured and guaranteed by Hanlong at an anticipated rate of Libor
plus 2%-4%;
·
$80 million equity investment in General Moly
through the purchase of 25% of the Company’s fully diluted shares, partially
contingent upon completion of $665 million bank loan;
·
$20 million bridge loan to assist in Mt. Hope
project restart, repayable from the proceeds of the Bank Loan; and
·
A long-term molybdenum supply off-take
agreement for Hanlong from Mt. Hope production.
Bruce
D. Hansen said, “I am extremely pleased to have Hanlong as a major investor and
partner. This transaction with Hanlong
provides superior value to our stockholders than alternative transactions we
have recently evaluated. Hanlong will,
in accordance with the terms and conditions of the agreement, invest $80 million
in equity and procure $665 million in senior secured debt, which we believe
will fully fund the Mt. Hope project.
Given the robust cash flows anticipated to be generated from the Mt.
Hope project, we feel we can adequately service the $665 million loan. Assuming $15 per pound molybdenum prices,
during the first full five years of production, total debt service will consume
approximately 50% of our anticipated cash flow after sustaining capital. Additionally, our post-transaction levered
after-tax Net Present Value (NPV) of General Moly’s 80% share of Mt. Hope is
estimated at $1.2 billion using an 8% discount rate at a $15 per pound moly
price growing to over $2 billion at $20 per pound prices. Of note, these figures do not include any
value for the Liberty project, which we now believe becomes increasingly viable
with the Mt. Hope project financing arranged.
We believe this transaction positions General Moly to reach its
strategic goal of being the world’s largest publicly listed pure-play moly producer
with ultimate targeted production of approximately 50 million pounds per year.”
1
Mr. Hansen
added, “We would also like to express our appreciation to POSCO, our Joint
Venture partner at Mt. Hope, for its immense support as we have evaluated
numerous financing alternatives and its commitment to remain a 20% partner in
the Mt. Hope project.”
Hui
Xiao (Steven), President of Hanlong (USA) Mining Investment Inc. commented, “We
are extremely pleased to invest in General Moly and we feel their Mt. Hope and
Liberty projects are two of the most promising moly assets worldwide. Our investments in General Moly and Moly
Mines position Hanlong to be a significant participant in the future of the
molybdenum industry, which we find very attractive.”
The
equity issuances in connection with this transaction are subject to General
Moly stockholder approval, which will be sought at the General Moly Annual
General Meeting.
A
Mt. Hope project Sources and Uses table and a General Moly NPV table are
located at the back of this release.
Hanlong
Equity Investment
The
$80 million equity investment will occur in two tranches. Hanlong will purchase 12.5% of the Company’s
fully diluted shares (the First Tranche) for $40 million. The First Tranche shares will be issued on
the satisfaction of certain conditions including General Moly’s receipt of
stockholder approval and publication of the Company’s Draft Environmental
Impact Statement (DEIS), which is now anticipated to occur by midyear. Additionally, Hanlong is required to obtain
necessary Chinese Government approvals for the transaction and to provide a
Comfort letter supporting the loan terms described below. The Company anticipates the First Tranche
shares will be issued in the third or fourth quarter of this year.
Hanlong
will purchase the remaining shares (the Second Tranche) for an additional $40
million to then give Hanlong a 25% fully diluted interest in General Moly. The Second Tranche shares will be issuable on
the satisfaction of certain conditions including receipt of the Company’s
Record of Decision (ROD) from the Bureau of Land Management (BLM) and the
completion of documentation and drawdown availability related to the $665
million Bank Loan described below. General
Moly anticipates satisfaction of the Second Tranche conditions early next
year. All conditions to the Second
Tranche must be completed no later than January 31, 2012.
The
total number of shares to be issued to Hanlong will be impacted ultimately by
ArcelorMittal’s election with regard to its pre-existing anti-dilution
rights. The Company anticipates issuing
Hanlong between 27.8 and 28.8 million shares, depending on ArcelorMittal’s
election with regard to its rights.
Hanlong
will be represented on General Moly’s Board of Directors with one Director who
will be appointed to the Board upon completion of the First Tranche and a
second Director who will be added upon completion of the Second Tranche.
Hanlong
will have anti-dilution rights, giving it the right to purchase additional
shares to maintain its 25% fully diluted interest in General Moly. Hanlong and General Moly have also executed a
stockholder agreement, which, through a standstill provision, limits Hanlong’s
ability to acquire additional shares in General Moly without Board approval and
in certain circumstances governs how Hanlong will vote its shares.
2
Hanlong
Guaranteed Bank Loan
Hanlong
will use commercial reasonable efforts to procure from a Prime Chinese Bank a
minimum $665 million senior secured term loan (Bank Loan) for General Moly to
assist in its funding of the Mt. Hope development costs. Hanlong will guarantee this Bank Loan. The interest rate on the Bank Loan is
anticipated to be at LIBOR plus a spread of between 2% and 4%. The Bank Loan will be repaid over a minimum
of 14 years from achievement of commercial production at Mt. Hope and may be
pre-paid at any time at the Company’s discretion. Hanlong will assist General Moly in
negotiations with the Chinese bank and the Bank Loan is anticipated to have
normal and customary covenants and security arrangements.
When
funds can be drawn under the Bank Loan, General Moly will pay a $15 million
arrangement fee to Hanlong as sole compensation for all up-front fees
associated with the loan charged by the Chinese bank and costs incurred in
connection with Hanlong’s guarantee of the Bank Loan.
The
Bank Loan is anticipated to close approximately two to three months following
receipt of the Company’s Record of Decision from the BLM and the satisfaction
of the Second Tranche conditions.
Break
Fees
A
break fee is payable by either party should the transaction fail due to either
party failing to meet their respective First or Second Tranche conditions. Hanlong’s break fee is $10 million payable to
General Moly and General Moly’s break fee is $5 million (subject to certain
adjustments) payable to Hanlong, which could be paid in General Moly shares at
the Company’s option under certain circumstances. The break fee payable by General Moly may in
certain circumstances be increased.
Bridge
Loan
Hanlong
will provide a $20 million bridge loan to General Moly (Bridge Loan) available
in two tranches. The first $10 million
tranche will bear an interest rate of LIBOR + 2% and will be available
following approval by the Chinese State Administration of Foreign Exchange
(SAFE), ArcelorMittal’s election with regard to its anti-dilution rights and
satisfaction of other customary conditions.
The second $10 million tranche bears an interest rate of 10% per annum
and will be available five business days following stockholder approval. All amounts outstanding under the Bridge Loan
are repayable out of the proceeds from the Bank Loan. General Moly will pledge
a 10% interest in the Mt. Hope project to Hanlong as security supporting the
Bridge Loan. The Bridge Loan will be
utilized to fund certain project restart costs including engineering and
equipment procurement efforts as permitting is advanced.
Molybdenum
Supply Agreement
General
Moly has executed off-take agreements with ArcelorMittal, SeAH Besteel and
Sojitz for an aggregate of approximately 15.5 million pounds of annual
molybdenum (moly) production for the first five years of Mt. Hope’s
3
operations. During this period, Hanlong will be required
to purchase the balance of General Moly’s equity share of production, or
approximately 16.5 million pounds annually.
Thereafter
and during the rest of the original Bank Loan term, Hanlong will purchase the
greater of 16 million pounds and 70% of General Moly’s share of Mt. Hope
production annually. After the
expiration of the original Bank Loan term, Hanlong will purchase that
proportion of General Moly’s share of Mt. Hope production equal to two and
one-half (2.5) times Hanlong’s fully diluted ownership in General Moly.
The
price Hanlong will pay for moly is broken down into two segments. 25% of the production Hanlong purchases will
have payment terms similar to the previous floor price protected off-take
contracts that the Company has in place.
These agreements include hard floor prices ranging from $12.50 to $13.50
per pound and incremental discounts above the floor price. For the remaining 75% of the production
Hanlong purchases, it will pay the spot price less a slight discount.
Following
this transaction, General Moly will have 100% of Mt. Hope’s production
committed for the first five years, approximately half of which contains floor
price protection to help support the Company’s ability to service debt in
periods of low moly prices.
Stockholder
Rights Plan
In
conjunction with the signing of this transaction, General Moly’s Board of
Directors has adopted a stockholder rights plan that is designed to strengthen
the ability of the Board of Directors to respond to unsolicited offers or
takeover attempts and to protect the interests of General Moly’s
stockholders. The plan was not adopted
in response to any particular unsolicited offer or takeover attempt, but to
encourage potential buyers to negotiate directly with the Board, and to
maximize stockholder value. The plan
will terminate the earlier of 30 days after the closing of the Second Tranche
under the Hanlong agreement, and December 31, 2011. Additional information on the stockholder
rights plan can be found in a separate press release.
POSCO
Third Election Contribution
In
conjunction with the announcement of the Hanlong transaction, POSCO has elected
to retain its 20% interest in the Mt. Hope project. Based on its election, POSCO will be required
to pay an additional $56 million to Eureka Moly (the LLC) at the time permits
are received in addition to 20% of funds spent by the LLC as of that date (the
catch-up contribution). The Company
currently estimates that catch-up contribution to be approximately $35
million. Additionally, based on the
Company’s expectation that Mt. Hope will not commence commercial production by December 31,
2011, the LLC will be required to refund POSCO $36 million, payable January 27,
2012.
ArcelorMittal
Participation
The
Company’s November 2007 private placement of 8.257 million shares with
ArcelorMittal, the world’s largest steel company, included certain
anti-dilution rights with respect to future issuances by General Moly of common
shares. ArcelorMittal is evaluating its
position with respect to such anti-dilution rights with respect to the proposed
Hanlong transaction. Pursuant to those
rights, ArcelorMittal may have an option to participate in the First Tranche and
the Second Tranche equity issuances. If
ArcelorMittal were to participate in both tranches, the Company estimates that
up to
4
approximately
3.3 million additional shares could be issued to ArcelorMittal and the number
of shares issued to Hanlong would increase from approximately 27.8 million to
28.8 million shares in aggregate. The
Company is currently discussing with ArcelorMittal the consideration associated
with its decision to participate or waive its rights.
5
Sources
and Uses Table
|
Sources
|
|
$M
|
|
|
Eureka Moly:
|
|
|
|
|
POSCO (20%)
|
|
231
|
|
|
GMI (80%)
|
|
923
|
|
|
|
|
1,154
|
|
|
|
|
|
|
|
GMI (80%) share
|
|
|
|
|
Bank Loan
|
|
665
|
|
|
|
|
|
|
|
Equity funded
by:
|
|
|
|
|
Already Spent(1)
|
|
131
|
|
|
Cash on Hand(1)
|
|
49
|
|
|
POSCO 3
rd
Payment
|
|
56
|
|
|
Hanlong Proceeds
|
|
80
|
|
|
Additional
Equity
|
|
|
|
|
Required and/or
cost
|
|
|
|
|
savings
|
|
6
|
|
|
|
|
|
|
|
Total Sources of Funds
|
|
987
|
|
|
Uses
|
|
$M
|
|
|
Eureka Moly
|
|
|
|
|
Capital
Expenditure
|
|
1,039
|
|
|
Working Capital
|
|
115
|
|
|
|
|
1,154
|
|
|
|
|
|
|
|
GMI (80%) share
|
|
|
|
|
Share of Eureka
Funding
|
|
923
|
|
|
Estimated Interest during
|
|
|
|
|
construction
|
|
49
|
|
|
Fees (fixed)
|
|
15
|
|
|
|
|
|
|
|
Total
Funding Required
|
|
987
|
|
1.
As of December 31,
2009
Project
NPV Table
The
following table sets forth the Company’s estimate of the NPV of General Moly’s
80% ownership interest in the Mt. Hope project, assuming the Bank Loan is
consummated, General Moly’s 100% ownership interest in the Liberty Project, and
the aggregate of General Moly’s ownership interest in the two projects, based
upon the anticipated cash flows from each project and the metal prices set
forth therein.
|
Moly
Price
Assumption
|
|
Mt. Hope Levered
NPV(1)
|
|
Liberty Pre-
feasibility NPV(2)
|
|
General Moly
Corporate Project
NPV
|
|
|
$
|
15.00
|
|
$
|
1,199
|
|
$
|
485
|
|
$
|
1,684
|
|
|
$
|
20.00
|
|
$
|
2,076
|
|
$
|
1,006
|
|
$
|
3,082
|
|
|
$
|
25.00
|
|
$
|
2,886
|
|
$
|
1,507
|
|
$
|
4,393
|
|
1.
Based on
the Bankable Feasibility Study (BFS) which provided data on the viability,
expected economics and production and cost estimates of the Mt. Hope
project The BFS was originally completed
in August 2007 and was then updated in 2008 and confirmed in 2009. Assumptions include an 8% discount rate, 16
year loan term with a fixed interest rate of 6% and a 14 year accelerated
amortization schedule with loan payments beginning only after commercial
production commences at the Mt. Hope project.
All anticipated taxes, royalties, and Nevada Net Proceeds taxes are
included as well as certain G&A expenditures. Shipping and Marketing expenses
are excluded.
2.
Based on
the Liberty pre-feasibility study released in April 2008. Assumptions include 8% discount rate,
after-tax, assumes a $1.50 copper price.
Project is un-levered.
6
Conference Call
A
conference call will be held later today at 2:00 p.m. Eastern / 12:00 p.m.
Mountain to discuss the Hanlong transaction in greater detail. Call-in information is provided below. Corresponding slides will be provided on the
Company’s website under the Investor tab.
Additionally, a listen-only webcast will simultaneously run on the
Company’s website, also accessible under the Investor tab.
Conference Call Details
|
Dial-in Number:
|
800.659.2056
|
|
Int’l Dial-in Number:
|
617.614.2714
|
|
Passcode:
|
General Moly
|
|
|
|
|
Replay:
|
888.286.8010
|
|
Replay Passcode:
|
75848605
|
*
* * * *
General
Moly is a U.S.-based molybdenum mineral development, exploration and mining
company listed on the NYSE Amex (formerly the American Stock Exchange) and the
Toronto Stock Exchange under the symbol GMO. Our primary asset, our interest in
the Mt. Hope project located in central Nevada, is considered one of the world’s
largest and highest grade molybdenum deposits. Combined with our second
molybdenum property, the Liberty project that is also located in central
Nevada, our goal is to become the largest primary molybdenum producer by the
middle of the next decade. For more information on the Company, please visit
our website at http://www.generalmoly.com
* * * * *
Sichuan
Hanlong Group is a large, privately held Chinese company with a wide portfolio
of investments including mining resource development, electricity production,
infrastructure development, pharmaceutical production, food and alcoholic
beverages, real estate development, environmental technology, tourism
development and high tech industries. The group has over 12.000 employees
worldwide and revenues in excess of 9.5 billion RMB in 2008. Hanlong Group is
well known for its philanthropic work in China, especially in its home province
of Sichuan. Hanlong Group’s overseas interests are solely in the mining
resources sector; the company has its base in Sydney, Australia where it has
built a multicultural team of mining and finance specialists.
* * * * *
Contact Information — General
Moly:
|
Investors
— Seth Foreman
|
(303)
928 — 8591
|
|
|
sforeman
[AT] generalmoly.com
|
|
Business
Development — Greg McClain
|
(303)
928 — 8601
|
|
|
gmcclain
[AT] generalmoly.com
|
|
|
|
|
|
|
|
Website:
http://www.generalmoly.com
|
|
|
|
info@generalmoly.com
|
7
Forward Looking Statements
Statements
herein that are not historical facts are “forward-looking statements” within
the meaning of Section 27A of the Securities Act, as amended and Section 21E
of the Securities Exchange Act of 1934, as amended and are intended to be
covered by the safe harbor created by such sections. Such forward-looking
statements involve a number of risks and uncertainties that could cause actual
results to differ materially from those projected, anticipated, expected, or
implied by the Company. These risks and uncertainties include, but are not
limited to, metals price and production volatility, global economic conditions,
currency fluctuations, increased production costs and variances in ore grade or
recovery rates from those assumed in mining plans, exploration risks and
results, political, operational and project development risks, including the
Company’s ability to obtain required permits to commence production and its
ability to raise required financing, adverse governmental regulation and judicial
outcomes. The closing of the Hanlong transaction and obtaining bank
financing are subject to a number of conditions precedent that may not be
fulfilled. For a detailed discussion of risks and other factors that may impact
these forward looking statements, please refer to the Risk Factors and other
discussion contained in the Company’s quarterly and annual periodic reports on
Forms 10-Q and 10-K, on file with the SEC. The Company undertakes no obligation
to update forward-looking statements.
8
