EXHIBIT 3.6
RESTATED CERTIFICATE OF INCORPORATION
OF
HOMESTAKE MINING COMPANY
In accordance with the provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware, HOMESTAKE MINING COMPANY
does hereby amend and restate its Restated Certificate of Incorporation.
HOMESTAKE MINING COMPANY was incorporated under the name HOMESTAKE MINING
CORPORATION, and the original Certificate of Incorporation was filed with the
Secretary of State on November 28, 1983. This Restated Certificate of
Incorporation was duly adopted by the Stockholders and the Board of Directors of
the Company in accordance with Sections 242 and 245 of the Delaware General
Corporation Law, as amended.
The text of the Restated Certificate of Incorporation is
hereby amended and restated so as to read in its entirety as follows:
ONE: The name of this corporation is
HOMESTAKE MINING COMPANY.
TWO: The address of the registered office of the Company in
the State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle, and the name of its registered agent at that address is The
Corporation Trust Company.
THREE: The purpose of the Company is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOUR: The total number of shares of all classes of stock which
the Company is authorized to issue is 460,000,001 shares. Of these, 450,000,000
shares shall be shares of common stock and the par value of each such share
shall be $1.00 ("Common Stock"), 10,000,000 shares shall be shares of preferred
stock and the par value of each such share shall be $1.00 ("Preferred Stock"),
and one share shall be a share of special voting stock with certain voting
rights and the par value of such share shall be $1.00 ("Special Voting Stock").
The aggregate par value of all shares is $460,000,001.
The number of shares of Preferred Stock authorized by this
Article FOUR may be increased or decreased (but not below the number of shares
then outstanding) by the affirmative vote of the holders of a majority of the
total voting power of all outstanding shares of the Common Stock and Special
Voting Stock of the Company and, subject to any limitation imposed in any
resolution adopted by the Board of Directors providing for the issue of any
particular series of Preferred Stock, the holders of Preferred Stock shall not
be entitled to vote upon any such increase or decrease.
The record holder of the Special Voting Stock shall not be
entitled to receive any dividends or other distributions or to receive or
participate in any distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company. Except as otherwise
required by applicable law, at each annual or special meeting of stockholders of
the Company the record holder of the Special Voting Stock shall be entitled to
vote on all matters submitted to a vote of the holders of the Common Stock,
voting together with the holders of the Common Stock as a single class (except
as otherwise provided herein or by applicable law), and the record holder of the
Special Voting Stock shall be entitled to cast on any such matter a number of
votes equal to the number of Exchangeable Shares ("Exchangeable Shares") of
Homestake Canada Inc. and its successors at law, whether by merger, amalgamation
or otherwise, outstanding as of the record date for such annual or special
meeting of stockholders, which are not owned by the Company or any subsidiary of
the Company. At such time as no Exchangeable Shares (other than Exchangeable
Shares owned by the Company or any subsidiary of the Company) shall be
outstanding and there are no shares of stock, debt, options or other agreements
which could give rise to the issuance of any Exchangeable Shares to any person
(other than the Company or any subsidiary of the Company), the share of Special
Voting Stock shall automatically be redeemed for $1.00, and upon any such
redemption or other purchase or acquisition of the Special Voting Stock by the
Company the share of Special Voting Stock shall be deemed retired and canceled
and may not be reissued.
FIVE: The Board of Directors shall have the authority, subject
to limitations prescribed by law and the provisions of this Article FIVE, to
determine and provide for the issuance of Preferred Stock in one or more series
and to establish or alter the number of shares to be included in each such
series, and to fix the voting powers, designations, preferences and relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions of the shares of each such series of Preferred
Stock.
The Board of Directors shall have the authority, subject to
the limitations stated in any resolution or resolutions originally fixing the
number of shares constituting any series, to increase or decrease (but not below
the number of shares of such series then outstanding) the number of shares of
any such series subsequent to the issuance of shares of that series. In case the
number of shares of any series shall be so decreased, the shares constituting
such decrease shall resume the status of authorized but unissued shares of
Preferred Stock.
The authority of the Board of Directors with respect to each
series shall include, but not be limited to, the authority to determine, by
resolution or resolutions providing for the issue of shares of each series, the
following: (1) the number of shares in and distinctive designation of each
series; (2) the dividend rate on each series and whether dividends shall be
cumulative; (3) the voting rights, if any, of the shares of each series in
addition to those required by law, including the number of votes per share and
any rights of the shares of each series to vote as a separate class in
connection with any specified transaction or item of business; (4) whether each
series shall have conversion privileges and, if so, the terms and conditions of
such conversion; (5) whether the shares of each series shall be redeemable and,
if so, the terms and conditions of such redemption; (6) the rights of each
series in the event of voluntary or involuntary liquidation, dissolution or
winding up of the Company; (7) whether each series shall
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be subject to the operation of a purchase, retirement or sinking fund and, if
so, the terms and conditions thereof; and (8) any other preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions of each series.
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Series A Participating Cumulative Preferred Stock
Section 1. Designation and Number of Shares. The shares of
such series shall be designated as "Series A Participating Cumulative Preferred
Stock" (the "Series A Preferred Stock"). The par value of each share of the
Series A Preferred Stock shall be $1.00. The number of shares constituting the
Series A Preferred Stock shall be 4,500,000; provided however, that if more than
a total of 4,500,000 shares of Series A Preferred Stock shall be issuable upon
the exercise of Rights issued pursuant to the Rights Agreement dated as of
October 16, 1987, as amended, (the "Rights Agreement"), the Board of Directors
of the Company, pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, shall direct by resolution or resolutions that a certificate
be properly executed, acknowledged, filed and recorded, in accordance with the
provisions of Section 103 thereof, providing for the total number of shares of
Series A Preferred Stock authorized to be issued be increased (to the extent
that this Restated Certificate of Incorporation then permits) to the largest
number of whole shares (rounded up to the nearest whole number) issuable upon
exercise of such Rights.
Section 2. Dividends or Distributions.
(a) Subject to the prior and superior rights of the holders of
shares of any other series of Preferred Stock or other class of capital stock
not by its terms ranking on a parity with, or junior to, the shares of Series A
Preferred Stock with respect to dividends, the holders of shares of the Series A
Preferred Stock shall be entitled to receive, when and as declared by the Board
of Directors, out of the assets of the Company legally available therefor, (1)
quarterly dividends payable in cash on the first day of March, June, September
and December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or a fraction of a share of
Series A Preferred Stock, of $10 per whole share (rounded to the nearest cent)
less the amount of all cash dividends declared on the Series A Preferred Stock
pursuant to the following clause (2) since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Preferred Stock, and (2) dividends payable in cash on the payment date for each
cash dividend declared on the Common Stock in an amount per whole share (rounded
to the nearest cent) equal to the Formula Number then in effect times the cash
dividends then to be paid on each share of Common Stock. In addition, if the
Company shall pay any dividend or make any distribution on the Common Stock
payable in assets, securities or other forms of noncash consideration (other
than dividends or distributions solely in shares of Common Stock), then, in each
such case, the Company shall simultaneously pay or make on each outstanding
share of Series A Preferred Stock a dividend or distribution in like kind of the
Formula Number then in
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effect times such dividend or distribution on each share of the Common Stock. As
used herein, the "Formula Number" shall be 100; provided, however, that if at
any time after November 2, 1987, the Company shall (i) declare or pay any
dividend on the Common Stock payable in shares of Common Stock or make any
distribution on the Common Stock in shares of Common Stock, (ii) subdivide (by a
stock split or otherwise) the outstanding shares of Common Stock into a larger
number of shares of Common Stock or (iii) combine (by a reverse stock split or
otherwise) the outstanding shares of Common Stock into a smaller number of
shares of Common Stock, then in each such event the Formula Number shall be
adjusted to a number determined by multiplying the Formula Number in effect
immediately prior to such event by a fraction, the numerator of which is the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which is the number of shares that are outstanding
immediately prior to such event (and rounding the result to the nearest whole
number); and provided further, that if at any time after November 2, 1987, the
Company shall issue any shares of its capital stock in a reclassification or
change of the outstanding shares of Common Stock (including any such
reclassification or change in connection with a merger in which the Company is
the surviving corporation), then in each such event the Formula Number shall be
appropriately adjusted to reflect such reclassification or change.
(b) The Company shall declare a dividend or distribution on
the Series A Preferred Stock as provided in Section 2(a) immediately prior to or
at the same time it declares a dividend or distribution on the Common Stock
(other than a dividend or distribution solely in shares of Common Stock);
provided, however, that, in the event no dividend or distribution (other than a
dividend or distribution in shares of Common Stock) 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 $10 per
share on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding dividend
or distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from and after the Quarterly
Dividend Payment Date next preceding the date of original issue of such shares
of Series A Preferred Stock; provided, however, that dividends on such shares
which are originally issued after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive a quarterly
dividend and on or prior to the next succeeding Quarterly Dividend Payment Date
shall begin to accrue and be cumulative from and after such Quarterly Dividend
Payment Date. Notwithstanding the foregoing, dividends on shares of Series A
Preferred Stock which are originally issued prior to the record date for the
first Quarterly Dividend Payment, shall be calculated as if cumulative from and
after the March 1, June 1, September 1 or December 1, as the case may be, next
preceding the date of original issuance of such shares. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
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(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends or other distributions shall be declared, paid or
distributed, or set aside for payment or distribution, on the Common Stock
unless, in each case, the dividend required by this Section 2 to be declared on
the Series A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock
shall not be entitled to receive any dividends or other distributions except as
provided herein.
Section 3. Voting Rights. The holders of shares of Series
A Preferred Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be entitled
to a number of votes equal to the Formula Number then in effect, for each share
of Series A Preferred Stock held of record on each matter on which holders of
the Common Stock are entitled to vote, multiplied by the maximum number of votes
which the holders of the Common Stock then have with respect to such matter.
(b) Except as otherwise provided herein or by applicable law,
the holders of shares of Series A Preferred Stock and the holders of shares of
Common Stock shall vote together as one class for the election of directors of
the Company and on all other matters submitted to a vote of stockholders of the
Company.
(c) If at the time of any annual meeting of stockholders for
the election of directors, the equivalent of six quarterly dividends (whether or
not consecutive) payable on any share or shares of Series A Preferred Stock are
in default, the number of directors constituting the Board of Directors of the
Company shall be increased by two. In addition to voting together with the
holders of Common Stock for the election of other directors of the Company, the
holders of record of the Series A Preferred Stock, voting separately as a class
to the exclusion of the holders of Common Stock, shall be entitled at said
meeting of stockholders (and at each subsequent annual meeting of stockholders),
unless all dividends in arrears have been paid or declared and set apart for
payment prior thereto, to vote for the election of two directors of the Company,
the holders of any Series A Preferred Stock being entitled to cast a number of
votes per share of Series A Preferred Stock equal to the Formula Number. Until
the default in payments of all dividends which permitted the election of said
directors shall cease to exist any director who shall have been so elected
pursuant to the next preceding sentence may be removed at any time, either with
or without cause, only by the affirmative vote of the holders of the shares at
the time entitled to cast a majority of the votes entitled to be cast for the
election of any such director at a special meeting of such holders called for
that purpose, and any vacancy thereby created may be filled by the vote of such
holders. If and when such default shall cease to exist, the holders of the
Series A Preferred Stock shall be divested of the foregoing special voting
rights, subject to revesting in the event of each and every subsequent like
default in payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been elected
directors pursuant to said special voting rights shall forthwith terminate, and
the number of directors constituting the Board of Directors shall be reduced by
two. The voting
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rights granted by this Section 3(c) shall be in addition to any other voting
rights granted to the holders of the Series A Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable
law, holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for authorizing or taking
any corporate action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Company 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 stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the Company ranking junior
(either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock: or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the 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 shares upon such terms as
the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(b) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company
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could, under paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary, no
distribution shall be made (1) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution, or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received an amount equal to the accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (x) $75 per share or (y) an
aggregate amount per share equal to the Formula Number then in effect times the
aggregate amount to be distributed per share to holders of Common Stock, or (2)
to the holders of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or winding up.
Section 6. Consolidation, Merger, etc. In case the Company
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash or any other property, then in any such case the then
outstanding shares of Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to the Formula
Number then in effect times the aggregate amount of stock, securities, cash or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is exchanged or changed.
Section 7. No Redemption; No Sinking Fund.
(a) The shares of Series A Preferred Stock shall not be
subject to redemption by the Company or at the option of any holder of Series A
Preferred Stock; provided, however, that the Company may purchase or otherwise
acquire outstanding shares of Series A Preferred Stock in the open market or by
offer to any holder or holders of shares of Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not be
subject to or entitled to the operation of a retirement or sinking fund.
Section 8. Ranking. The Series A Preferred Stock shall rank
junior to all other series of Preferred Stock of the Company, unless the Board
of Directors shall specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other special rights of
the shares of such series and the qualifications, limitations and restrictions
thereof.
Section 9. Fractional Shares. The Series A Preferred
Stock shall be issuable upon exercise of the Rights issued pursuant to the
Rights Agreement in whole shares or in any fraction of a share that is not
smaller than one one-hundredth (l/l00th) of a share or any integral
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multiple of such fraction. In lieu of fractional shares, the Company, prior to
the first issuance of a share or a fraction of a share of Series A Preferred
Stock, may elect (1) to issue certificates evidencing such authorized fraction
of a share of Series A Preferred Stock or (2) to issue depository receipts
evidencing such authorized fraction of a share of Series A Preferred Stock
pursuant to an appropriate agreement between the Company and a depository
selected by the Company, provided that such agreement shall provide that the
holders of such depository receipts shall have all the rights, privileges and
preferences to which they are entitled as beneficial owners of the Series A
Preferred Stock.
Section 10. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock, without designation as to series until such shares
are once more designated as part of a particular series by the Board of
Directors pursuant to the provisions of Article FIVE hereof.
Section 11. Amendment. None of the powers, preferences and
relative, participating, optional and other special rights of the Series A
Preferred Stock as provided herein shall be amended in any manner which would
alter or change the powers, preferences, rights or privileges of the holders of
Series A Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least 66 2/3% of the outstanding shares of Series
A Preferred Stock, voting as a separate class.
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SIX: No holder of shares of stock of any class of the Company
shall be entitled as of right to purchase or subscribe for any part of any
unissued stock of the Company or of any new or additional authorized stock of
the Company of any class whatsoever, or of any issue of securities of the
Company convertible into stock, whether such stock or securities be issued for
money or for a consideration other than money or by way of dividend, but any
such unissued stock or such new or additional authorized stock or such
securities convertible into stock may be issued and disposed of to such persons,
firms, corporations and associations, and upon such terms as may be deemed
advisable by the Board of Directors without offering to stockholders then of
record or any class of stockholders any thereof upon any terms.
SEVEN: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
repeal, alter, amend and rescind any or all of the bylaws of the Company.
EIGHT: The number of directors of the Company shall be fixed
from time to time by a bylaw or amendment thereof duly adopted by the Board of
Directors or by the stockholders, or except as may be set forth in a certificate
filed under Section 151(g) of the General Corporation Law of the State of
Delaware pursuant to Article FIVE hereof.
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NINE: The Board of Directors shall be and is divided into
three classes, Class I, Class II and Class III, as nearly equal in number of
directors as possible, with the term of office of the directors of one class
expiring each year. Each director shall be elected to serve for a term ending on
the date of the third annual meeting of stockholders following the annual
meeting of stockholders at which such director was elected.
In the event of any change in the authorized number of
directors, the Board of Directors shall apportion any newly created
directorships to, or reduce the number of directorships in, such class or
classes as shall, so far as possible, equalize the number of directors in each
class. If, consistently with the rule that the three classes shall be as nearly
equal in number of directors as possible, any newly created directorships may be
allocated to more than one class, the Board of Directors shall allocate them to
the classes the terms of office of which are due to expire at the latest date
following such allocation.
Notwithstanding any of the foregoing, each director shall
serve for a term continuing until the annual meeting of stockholders at which
the term of the class to which he was elected expires and until his successor is
elected and qualified or until his earlier death, resignation or removal.
Any vacancies in the Board of Directors for any reason,
including any newly created directorships resulting from any increase in the
number of directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a quorum; and any
directors so chosen shall hold office until the next election of the class for
which such directors shall have been chosen, and until their successors shall be
elected and qualified.
The provisions of this Article NINE shall be subject to the
provisions of a certificate filed under Section 151(g) of the General
Corporation Law of the State of Delaware pursuant to Article FIVE hereof.
TEN: Except as may be set forth in a certificate filed under
Section 151(g) of the General Corporation Law of the State of Delaware pursuant
to Article FIVE hereof, a director may be removed from office only for cause,
and only by the affirmative vote of the holders of a majority of the total
voting power of all outstanding shares of stock of the Company entitled to vote
at an election of directors and who would be entitled to vote for the election
of a director to fill the vacancy created by such removal.
ELEVEN: Elections of directors shall be by written ballot
unless the bylaws of the Company shall otherwise provide.
TWELVE: No action shall be taken by the stockholders except at
an annual or special meeting of stockholders.
THIRTEEN: Special meetings of the stockholders of the
Company for any purpose or purposes may be called at any time only by the Board
of Directors, the Chairman of the Board
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of Directors, the President, a committee of the Board of Directors which has
been duly designated by the Board of Directors and whose powers and authority,
as provided in a resolution of the Board of Directors or in the bylaws of the
Company, include the power to call such meeting, or by stockholders having not
less than seventy-five percent (75%) of the total voting power of all
outstanding shares of stock of the Company, and such special meetings may not be
called by any other person or persons; provided, however, that if and to the
extent that any special meeting of stockholders may be called by any other
person or persons specified in any provisions of the Restated Certificate of
Incorporation or any amendment thereto, or any certificate filed under Section
151(g) of the General Corporation Law of the State of Delaware pursuant to
Article FIVE hereof, then such special meeting may also be called by such person
or persons in the manner, at the times and for the purposes so specified.
FOURTEEN: Except as may be set forth in a certificate filed
under Section 151(g) of the General Corporation Law of the State of Delaware
pursuant to Article FIVE hereof requiring a specified percentage of the voting
power of any series of Preferred Stock created pursuant thereto, the approval or
authorization of any "Business Combination" (as defined in Article FIFTEEN
hereof) of the Company with any "Related Person" (as defined in Article FIFTEEN
hereof) (i) shall require the affirmative vote of the holders of not less than
eighty percent (80%) of the total voting power of all outstanding shares of
stock of the Company having the right to vote in respect of such Business
Combination, and (ii) also shall require the affirmative vote of the holders of
not less than a majority of the voting power of all outstanding shares of stock
so entitled to vote held by stockholders other than such Related Person and its
Affiliates and Associates (as defined in Article FIFTEEN hereof); provided,
however, that the voting requirements provided by clauses (i) and (ii) above
shall not be applicable if:
(A) The Business Combination was approved by the Board of
Directors of the Company prior to the time the Related Person in
question first became a Related Person; or
(B) The Business Combination was approved by the Board of
Directors of the Company after the time the Related Person in question
first became a Related Person, but only if such Related Person obtained
the unanimous approval of the Board of Directors of the Company to his
becoming a Related Person, which approval was obtained prior to his
becoming a Related Person; or
(C) The Business Combination is solely between the Company and
another corporation, fifty percent (50%) or more of the voting stock of
which is owned by the Company and none of which is owned by a Related
Person, provided that each stockholder of the Company receives the same
type of consideration in such transaction as every other stockholder of
the same class in proportion to his stockholdings and each holder of
Common Stock of the Company receives or retains Common Stock in the
surviving corporation or in any other corporation which is a party to
such Business Combination; or
(D) All of the following conditions are satisfied:
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(1) The cash or fair market value of the property,
securities or "Other Consideration To Be Received" (as defined in
Article FIFTEEN hereof) per share by holders of Common Stock of the
Company in the Business Combination is not less than the higher of (i)
the highest per share price (including brokerage commissions,
soliciting dealers' fees, dealer-management compensation, and other
expenses, including, but not limited to, costs of newspaper
advertisements, printing expenses and attorneys' fees) paid by such
Related Person in acquiring any of its holdings of Common Stock of the
Company or (ii) an amount which bears the same or a greater percentage
relationship to the market price of the Common Stock of the Company
immediately prior to the announcement of such Business Combination as
the highest per share price determined in (i) above bears to the market
price of the Common Stock of the Company immediately prior to the
commencement of acquisition of the Common Stock of the Company by such
Related Person, but in no event in excess of two times the highest per
share price determined in (i) above;
(2) After becoming a Related Person and prior to the
consummation of such Business Combination, (i) such Related Person
shall not have acquired any newly issued shares of capital stock,
directly or indirectly, from the Company (except upon conversion of
convertible securities acquired by it prior to becoming a Related
Person or upon compliance with the provisions of this Article FOURTEEN
or as a result of a pro rata stock dividend or stock split or other
recapitalization) and (ii) such Related Person shall not have received
the benefit, directly or indirectly (except proportionately as a
stockholder) of any loans, advances, guarantees, pledges or other
financial assistance or tax credits provided by the Company, or made
any major changes in the business or equity capital structure of the
Company; and
(3) A proxy statement meeting the requirements of the
Securities Exchange Act of 1934, as amended, and the applicable rules
and regulations thereunder, whether or not the Company is then subject
to such requirements, shall be mailed to the stockholders of the
Company for the purpose of soliciting stockholder approval of such
Business Combination and shall contain, prominently displayed (i) any
recommendations as to the advisability (or inadvisability) of the
Business Combination which the Continuing Directors, or any Outside
Directors, may choose to state, and (ii) the opinion of a reputable
national investment banking firm as to the fairness (or not) of the
terms of such Business Combination, from the point of view of the
stockholders of the Company who are not Related Persons or their
Affiliates or Associates (such investment banking firm to be engaged
solely on behalf of the stockholders who are not Related Persons or
their Affiliates or Associates, to be paid a reasonable fee for its
services by the Company upon receipt of such opinion, to be an
investment banking firm which has not previously been associated with
any such Related Person and, if there are then any such directors, to
be elected by a
11
majority of the Continuing Directors and Outside Directors (as defined
in Article FIFTEEN hereof)).
FIFTEEN: As used in this Restated Certificate of Incorpora-
tion, the terms hereafter defined shall have the following meanings:
(A) The terms "Affiliate" and "Affiliated with" shall mean,
with respect to a specific Person, a Person that, directly or
indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified.
(B) The term "Associate" shall mean, when used to indicate a
relationship with any Person, (1) any corporation, partnership,
association or other organization (other than the Company or a
majority-owned subsidiary of the Company) of which such Person is an
officer, partner or, directly or indirectly, Beneficial Owner of ten
percent (10%) or more of any class of equity securities or other
beneficial or voting interest, (2) any trust or other estate in which
such Person has a substantial beneficial interest or as to which such
Person serves as trustee or in a similar fiduciary capacity, (3) any
relative or spouse of such Person, or any relative of such spouse, who
has the same home as such Person, or (4) any investment company
registered under the Investment Company Act of 1940 for which such
Person or any Affiliate of such Person serves as investment adviser.
(C) A Person shall be considered the "Beneficial Owner" of any
shares or other beneficial or voting interest (whether or not owned of
record):
(1) With respect to which such Person or any
Affiliate or Associate of such Person directly or indirectly
has or shares (i) voting power, including the power to vote or
to direct the voting of such shares or interests and/or (ii)
investment power, including the power to dispose of or to
direct the disposition of such shares or interests;
(2) Which such Person or Affiliate or Associate of
such Person has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, and/or (ii) the right to
vote pursuant to any agreement, arrangement or understanding
(whether such right is exercisable immediately or only after
the passage of time); or
(3) Which are Beneficially Owned within the meaning
of (1) or (2) of this definition by any other Person with
which such first-mentioned Person or any of its Affiliates or
Associates has any agreement, arrangement or understanding,
written or oral, with respect to acquiring, holding, voting or
disposing of any shares of stock of the Company or any
subsidiary of the Company or acquiring, holding or disposing
of all or any Substantial Part of the assets or business of
the Company or a subsidiary of the Company.
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For the purpose only of determining whether a Person is the Beneficial
Owner of a percentage of outstanding shares of the Company specified in
this Restated Certificate of Incorporation, such shares shall be deemed
to include any shares which may be issuable pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants, options or otherwise and which are deemed to
be Beneficially Owned by such Person pursuant to the foregoing
provisions of this definition.
(D) The term "Business Combination" shall mean (1) any merger
or consolidation of the Company or a subsidiary of the Company with or
into a Related Person, (2) any sale, lease, exchange, transfer or other
disposition, including, without limitation, a mortgage or any other
security device, in a single transaction or series of related
transactions, of all or any Substantial Part of the assets of the
Company (including, without limitation, any voting securities of a
subsidiary) or of a subsidiary of the Company to a Related Person, (3)
any merger or consolidation of a Related Person with or into the
Company or a subsidiary of the Company, (4) any sale, lease, exchange,
transfer or other disposition, including without limitation, a mortgage
or other security device, in a single transaction or series of related
transactions, of all or any Substantial Part of the assets of a Related
Person to the Company or a subsidiary of the Company, (5) the issuance
of any securities of the Company or a subsidiary of the Company to a
Related Person, (6) the acquisition by the Company or a subsidiary of
the Company of any securities of a Related Person, (7) any
reclassification of Common Stock of the Company, or any
recapitalization involving Common Stock of the Company, consummated
within five (5) years after a Related Person becomes a Related Person,
(8) any liquidation or dissolution of the Company proposed, directly or
indirectly, by or on behalf of a Related Person, (9) any merger or
consolidation of the Company proposed, directly or indirectly, by or on
behalf of Related Person, unless the surviving or consolidated
corporation, as the case may be, has provisions in its certificate of
incorporation substantially identical to Articles FOURTEEN, FIFTEEN and
SIXTEEN hereof, or (10) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Combination. A Business Combination with a Person shall be
deemed to be a Business Combination with a Related Person if such
Person is a Related Person at any of the following times: (i) the date
any definitive agreement relating to a Business Combination is entered
into or amended; (ii) the record date for the determination of
stockholders entitled to notice of and to vote on a Business
Combination; and (iii) immediately prior to the consummation of a
Business Combination.
(E) The term "Continuing Director" shall mean a director who
was a member of the Board of Directors of the Company immediately prior
to the time that any Related Person involved in the proposed Business
Combination first became a Related Person.
(F) The term "Other Consideration To Be Received" shall
include, without limitation, shares of stock of the Company retained by
any of its stockholders other than a
13
Related Person or its Affiliates or Associates in the event of a
Business Combination with such Related Person in which the Company is
the surviving entity.
(G) The term "Outside Director" shall mean a director who is
not (1) an officer or employee of the Company or any relative of an
officer or employee, (2) a Related Person or an officer, director,
employee, Associate or Affiliate of a Related Person, or a relative of
any of the foregoing, or (3) a Person having a direct or indirect
material business relationship with the Company.
(H) The term "Person" shall mean any person, partnership,
corporation, group or other entity (other than the Company, any
subsidiary of the Company, or a trustee holding stock for the benefit
of any of the employees of the Company or its subsidiaries, pursuant to
one or more employee benefit plans or arrangements, but only in such
capacity). When two or more persons act as a partnership, limited
partnership, syndicate, joint venture, association or other group for
the purpose of acquiring, holding or disposing of shares of stock, such
partnership, syndicate, joint venture, association or group shall be
deemed a "Person."
(I) The term "Related Person" shall mean any Person which,
together with any Affiliate or Associate, is the Beneficial Owner of
ten percent (10%) or more of the outstanding Common Stock of the
Company or of the outstanding voting stock of the Company or any Person
which, together with any Affiliate or Associate, was at any time within
the five (5) years preceding the date for such determination the
Beneficial Owner of ten percent (10%) or more of the then outstanding
Common Stock of the Company or of the outstanding voting stock of the
Company.
(J) The term "Substantial Part" shall mean more than ten
percent (10%) of the total assets of the individual, corporation,
partnership or other person or entity in question, as of the end of its
most recent fiscal year ending prior to the time the determination is
being made.
SIXTEEN: The Company reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereinafter prescribed by statute, and all
rights conferred by stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in Articles FOURTEEN,
FIFTEEN and this SIXTEEN may not be amended, altered, changed or repealed in any
respect if there is then a Related Person unless such amendment, alteration,
change or repeal is approved (i) by the affirmative vote of the holders of not
less than eighty percent (80%) of the total voting power of the Company and (ii)
also by the affirmative vote of the holders of not less than a majority of the
total voting power of the Company other than a Related Person and any Affiliates
and Associates of such a Related Person.
SEVENTEEN: No director shall have any personal liability to
the Company or its stockholders for any monetary damages for breach of fiduciary
duty as a director, except that this Article shall not eliminate or limit the
liability of each director (i) for any breach of such
14
director's duty of loyalty to the Company 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 unlawful payment of a dividend or unlawful stock
purchase or redemption under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which such director derived an improper
personal benefit. Any repeal or modification of the preceding sentence by the
stockholders of the Company shall not adversely affect any right or protection
of a director of the Company existing at the time of such repeal or
modification.
IN WITNESS WHEREOF, HOMESTAKE MINING COMPANY has caused this
Restated Certificate of Incorporation to be signed by Jack E. Thompson, its
Chairman, President and Chief Executive Officer, and attested by Wayne Kirk, its
Secretary, this first day of December, 1998.
HOMESTAKE MINING COMPANY
By
Jack E. Thompson
Jack E. Thompson, Chairman,
President and Chief Executive Officer
Attest:
By
Wayne Kirk
Wayne Kirk
Secretary
15