EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
NEW TREND OF MONTANA COMPANY
ARTICLE 1
The name of the corporation is New Trend of Montana Company (hereinafter,
the "Company").
ARTICLE 2
The address of the registered office of the Company in the State of
Delaware is 1220 N. Market Street, Suite 606, Wilmington, DE 19801. The name of
the registered agent at such address is Registered Agents, Ltd. The county is
New Castle County.
ARTICLE 3
The purpose of the Company is to engage in any lawful act or activity for
which a Corporation may be organized under the General Corporation Law of
Delaware ("GCL").
ARTICLE 4
4.1. AUTHORIZED SHARES. The total number of shares that the Company is
authorized to issue is 120,000,000, 100,000,000 shares of which shall be Common
Stock, $0.01 par value per share, and 20,000,000 shares of which shall be
Preferred Stock, $0.01 par value per share, one share of which shall be
designated Series A Preferred Stock.
4.2. COMMON STOCK. Each holder of Common Stock shall be entitled to one
vote for each share of Common Stock held on all matters as to which holders of
Common Stock shall be entitled to vote. Except for and subject to those
preferences, rights, and privileges expressly granted to the holders of all
classes of stock at the time outstanding having prior rights, and series of
preferred stock which may from time to time come into existence, and except as
may be provided by the laws of the State of Delaware, the holders of Common
Stock shall have exclusively all other rights of stockholders of the Company,
including, but not limited to, (i) the right to receive dividends when, as and
if declared by the Board of Directors out of assets lawfully available therefor,
and (ii) in the event of any distribution of assets upon the dissolution and
liquidation of the Company, the right to receive ratably and equally all of the
assets of the Company remaining after the payment to the holders of preferred
stock of the specific amounts, if any, which they are entitled to receive as may
be provided herein or pursuant hereto.
4.3. PREFERRED STOCK. The Board of Directors of the Company is authorized,
subject to limitations prescribed by law, to provide by resolution or
resolutions for the issuance of the shares of Preferred Stock (other than the
Series A Preferred Stock) in series, and, by filing a certificate of
designation, pursuant to the GCL, setting forth a copy of such resolution or
resolutions, to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, preferences, and rights
of the shares of the class or of each such series, and the qualifications,
limitations, and restrictions thereof. The authority of the Board of Directors
with respect to the class or each series shall include, but not be limited to,
determination of the following:
(a) The number of shares constituting any series and the distinctive
designation of that series, which number may (except where otherwise provided by
the Board of Directors in creating
such series) be increased or decreased, but not below the number of shares
outstanding from time to time by like action of the Board of Directors;
(b) The dividend rate on the shares of the class or of any series,
the conditions and times upon which such dividends shall be payable, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of the
class or of that series;
(c) Whether the class or any series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of such
voting rights;
(d) Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or classes, with or without par
value, or of any other series of this same class, and, if provision is made for
conversion or exchange, the times, prices, rates, adjustments and other terms
and conditions of such conversion or exchange;
(e) Whether or not the shares of the class or of any series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) Whether the class or any series shall have a retirement or
sinking fund for the redemption or purchase of shares of the class or of that
series, and, if so, the terms and amount of such retirement or sinking fund;
(g) The rights of the shares of the class or of any series in the
event of voluntary or involuntary dissolution or winding up of the Company, and
the relative rights of priority, if any, of payment of shares of the class or of
that series; and
(h) Any other powers, preferences, rights, qualifications,
limitations, and restrictions of the class or of any series, as the Board of
Directors may deem advisable and as shall not be inconsistent with the
provisions of this Certificate of Incorporation.
4.4. SERIES A PREFERRED STOCK. There shall be a series of Preferred Stock
designated "Series A Preferred Stock." The number of shares constituting the
Series A Preferred Stock shall be one (1). The rights, preferences, privileges,
restrictions and other matters relating to the Series A Preferred Stock are as
follows:
(a) ELIGIBLE HOLDERS. The Company shall issue the Series A Preferred
Stock to Thomas S. Kaplan ("Mr. Kaplan"), a natural person with an address of
c/o William Natbony, Esq., Rosenman & Colin LLP, 575 Madison Avenue, New York,
NY 10022-2585. Each of Mr. Kaplan, Electrum LLC, a company organized under the
laws of the Cayman Islands with an address of c/o William Natbony, Esq.,
Rosenman & Colin LLP, 575 Madison Avenue, New York, NY 10022-2585, and Asher
Edelman ("Mr. Edelman"), a natural person with an address of c/o Edelman
Companies, 717 Fifth Avenue, New York, NY 10022 is an eligible holder of Series
A Preferred Stock if, at any date of determination, such person or entity has
voting and dispositive control of 20% or more of the Common Stock of the Company
on a fully diluted basis ("Eligible Holder"). No person or entity other than Mr.
Kaplan, Electrum LLC or Mr. Edelman may be or become an Eligible Holder. Series
A Preferred Stock may be held only by an Eligible Holder. "Fully diluted" for
the purposes of this Section 4.4 shall mean, as of any date of determination,
all of the Common Stock of the Company issued and outstanding on such date plus
all of the Common Stock issuable on the exercise or conversion of securities
exercisable for or convertible into Common Stock outstanding on such date.
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(b) DIVIDEND RIGHTS. The holder of Series A Preferred Stock shall
have no right to receive or to be paid dividends on the Series A Preferred
Stock, whether or not the Company has funds legally available therefor.
(c) VOTING RIGHTS.
(1) GENERAL RIGHTS. Except as otherwise provided herein or as
required by law, the Series A Preferred Stock shall have no right to vote at any
annual or special meeting of stockholders of the Company.
(2) CONSENT OF SERIES A PREFERRED STOCK FOR CERTAIN ACTIONS. In
addition to any other vote or consent required herein or by law, the written
consent of the holder of the outstanding Series A Preferred Stock shall be
necessary to effect or validate any issuance of Preferred Stock, Common Stock,
or any equity securities convertible into or exercisable for Preferred Stock or
Common Stock; PROVIDED, HOWEVER, that (x) the issuance of Common Stock or
Preferred Stock pursuant to the exercise or conversion of equity securities
outstanding on the date that Trend Mining Company, a Montana corporation, merged
with and into the Company shall not require the consent of the Series A
Preferred Stock, and (y) if the holder of Series A Preferred Stock has
previously approved the issuance of equity securities exercisable for or
convertible into Preferred Stock or Common Stock, the issuance of Preferred
Stock or Common Stock upon exercise or conversion of such securities, or the
issuance of Common Stock upon conversion of Preferred Stock issued upon such
exercise or conversion, shall not require the further consent of the Series A
Preferred Stock.
(d) LIQUIDATION RIGHTS.
(1) DISTRIBUTION TO SERIES A PREFERRED STOCK. Upon any sale,
liquidation, dissolution, merger or winding up of the Company, whether voluntary
or involuntary, before any distribution or payment shall be made to the holders
of any Common Stock, the holder of Series A Preferred Stock shall be entitled to
be paid out of the assets of the Company an amount equal to One Dollar ($1.00)
(as adjusted for any stock dividends, combinations, splits, recapitalizations
and the like with respect to the Series A Preferred Stock) for the Series A
Preferred Stock held by such holder.
(2) DISTRIBUTION OF REMAINING ASSETS. After the payment of the
full liquidation preference of the Series A Preferred Stock as set forth in
Section 4.4(d)(1) above, no holder of Series A Preferred Stock shall be entitled
to any of the remaining assets of the Company legally available for
distribution.
(e) TRANSFER RIGHTS. The holder of the Series A Preferred Stock shall
have the right freely to transfer such Stock to another Eligible Holder. If the
holder of the Series A Preferred Stock ceases to be an Eligible Holder, the
Series A Preferred Stock shall be transferred automatically to Mr. Kaplan, if he
is an Eligible Holder; or, if Mr. Kaplan is not an Eligible Holder, then to
Electrum LLC; or, if Electrum LLC is not an Eligible Holder, then to Mr.
Edelman. If none of Mr. Kaplan, Electrum LLC or Mr. Edelman is an Eligible
Holder, the Series A Preferred Stock shall be converted automatically to Common
Stock pursuant to Section 4.4(g).
In connection with any transfer, the transferring holder shall give written
notice to the Company of such transfer and shall surrender the certificate for
such Series A Preferred Stock, duly endorsed, at the office of the Company or
any transfer agent for such Series A Preferred Stock, with instructions to issue
a new certificate for such Series A Preferred Stock to the new holder. The
Company shall not be obligated to issue a certificate evidencing the share of
Common Stock issuable upon such conversion unless the certificate evidencing
such Series A Preferred Stock is either delivered to the Company or its transfer
agent as provided above, or the holder notifies the Company or its transfer
agent that such certificate has
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been lost, stolen or destroyed and executes an agreement reasonably satisfactory
to the Company to indemnify the Company from any loss incurred by it in
connection with such certificates.
(f) REDEMPTION RIGHTS. The holder of the Series A Preferred Stock
shall have the following rights with respect to the redemption of the Series A
Preferred Stock (the "Redemption Rights"):
(1) RIGHT OF HOLDER TO CALL SERIES A PREFERRED STOCK FOR
REDEMPTION. Subject to and in compliance with the provisions of this Section
4.4(f), the holder of the Series A Preferred Stock may make an election by
written notice to the Company at its principal office to cause the Company to
call for redemption of the holder's Series A Preferred Stock at a redemption
price of $1.00 per share (the "Redemption Price") out of funds legally available
therefor. If, on any date on which the Company is obligated to pay the
Redemption Price, the funds of the Company legally available for redemption of
Series A Preferred Stock are insufficient to pay the Redemption Price, those
funds that are legally available will be used to pay the maximum portion of the
Redemption Price then due. At any time thereafter, when additional funds of the
Company are legally available for the redemption of Series A Preferred Stock,
such funds will immediately be used to pay the balance of the Redemption Price
then owed by the Company.
(2) MECHANICS OF REDEMPTION. The holder of the Series A
Preferred Stock called for redemption pursuant to this Section 4.4(f) shall, as
a condition to receiving the Redemption Price, surrender the certificate
therefor, duly endorsed, at the office of the Company or any transfer agent for
the Series A Preferred Stock. If, on the date fixed for redemption, cash
necessary for the redemption shall be available for such purpose and
irrecoverably shall have been deposited or set apart, then, notwithstanding that
the certificate evidencing the Series A Preferred Stock called for redemption
shall not have been surrendered, the Series A Preferred Stock no longer shall be
deemed to be outstanding, the holder thereof shall cease to be a holder of
Series A Preferred Stock, and all rights whatsoever with respect to the shares
of Series A Preferred Stock (except the right of the holder to receive payment
of the Redemption Price as provided herein, without interest, upon surrender of
their certificates therefor) shall terminate.
(g) AUTOMATIC CONVERSION. The share of Series A Preferred Stock shall
automatically be converted into one (1) share of Common Stock, subject to
equitable adjustments, without any further action by the holder of the Series A
Preferred Stock and whether or not the certificate representing such share is
surrendered to the Company or its transfer agent, at such time as (i) none of
Mr. Kaplan, Electrum LLC and Mr. Edelman is an Eligible Holder, (ii) the Series
A Preferred Stock is transferred to a person or entity which is not an Eligible
Holder, or (iii) failure of the stockholders of the Company at any annual
meeting of stockholders to approve the retention of the Series A Preferred
Stock. The Company agrees to submit the retention of the Series A Preferred
Stock to its stockholders for approval at each annual meeting of stockholders,
unless the Series A Preferred Stock previously has been converted or redeemed.
Upon the occurrence of such automatic conversion of the Series A Preferred
Stock, the holder of Series A Preferred Stock shall surrender the certificate
representing such Series A Preferred Stock at the office of the Company or any
transfer agent for such stock. Following such surrender, the Company shall issue
and deliver to such holder promptly at such office and in its name as shown on
such surrendered certificate, a certificate for one share of Common Stock into
which the Series A Preferred Stock surrendered was convertible on the date on
which such automatic conversion occurred. The Company shall not be obligated to
issue a certificate evidencing the share of Common Stock issuable upon such
conversion unless the certificate evidencing such Series A Preferred Stock is
either delivered to the Company or its transfer agent as provided above, or the
holder notifies the Company or its transfer agent that such certificate has been
lost, stolen or destroyed and executes an agreement reasonably satisfactory
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to the Company to indemnify the Company from any loss incurred by it in
connection with such certificates.
(h) RETIREMENT. Upon the acquisition of the Series A Preferred Stock
by the Company, however acquired, such Series A Preferred Stock shall be retired
and shall not be reissued.
(i) RECORD HOLDERS. For purposes of this Section 4.4, the "holder" of
Series A Preferred Stock shall be deemed to be the holder of record of such
Series A Preferred Stock for all purposes.
ARTICLE 5
5.1. NUMBER AND ELECTION OF DIRECTORS. The number of directors of the
Company shall be fixed from time to time in the manner provided in the bylaws
and may be increased or decreased from time to time in the manner provided in
the bylaws. Election of directors need not be by written ballot except and to
the extent provided in the bylaws of the Company. A director shall hold office
until the annual meeting for the year in which his term expires and until his
successor shall be elected and qualified, subject, however, to such director's
prior death, resignation, retirement, disqualification or removal from office.
5.2. QUORUM. A quorum of the Board of Directors for the transaction of
business shall not consist of less than a majority of the total number of
directors, except as otherwise may be provided in this Certificate of
Incorporation or in the bylaws with respect to filling vacancies.
5.3. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as otherwise fixed
relative to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, newly created directorships resulting
from any increase in the number of directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filled solely by the affirmative vote of a majority of the
remaining directors then in office, or by a sole remaining director, even though
less than a quorum of the Board of Directors. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the new directorship which was created or in which the vacancy occurred and
until such director's successor shall have been elected and qualified. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
ARTICLE 6
Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to adopt, repeal, alter, amend and rescind
any or all of the bylaws of the Company.
ARTICLE 7
7.1. STOCKHOLDER ACTIONS. 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 stockholders or by appropriate action by written consent
by such stockholders.
7.2. MEETINGS. Meetings of stockholders may be held within or without the
State of Delaware, as the bylaws may provide. Except as otherwise required by
law and subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock, special meetings of the stockholders
may be called only by the chairman of the board, the chief executive officer,
the
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president, any officer of the Company upon the written request by a majority of
the Board of Directors, or as may be designated in the bylaws of the Company.
7.3. CORPORATE BOOKS. The books of the Company may be kept (subject to any
contrary provision of applicable law) outside the State of Delaware at such
place or places as may be designated from time to time by the Board of Directors
or in the bylaws of the Company.
ARTICLE 8
Notwithstanding any other provisions of this Certificate of Incorporation
of the Company or of the bylaws of the Company, the affirmative vote of the
holders of not less than a majority of the outstanding shares of the capital
stock of the Company entitled to vote generally in the election of directors,
shall be required to amend or repeal or adopt any provision of this Certificate
of Incorporation.
ARTICLE 9
A director or officer of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a director
or officer, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL as currently in effect or as the same may
hereafter be amended.
No amendment, modification or repeal of this Article 9 shall adversely
affect any right or protection of a director that exists at the time of such
amendment, modification or repeal.
ARTICLE 10
The Company shall indemnify, to the fullest extent permitted by applicable
law as in effect from time to time, any person against all liability and expense
(including attorneys' fees) incurred by reason of the fact that he or she is or
was a director or officer of the Company or any of its subsidiaries, or while
serving as a director or officer of the Company or any of its subsidiaries, he
or she is or was serving at the request of the Company or any of its
subsidiaries as a director, officer, partner or trustee of, or in any similar
managerial or fiduciary position of, or as an employee or agent of, another
corporation, partnership, joint venture, trust, association, or other entity (an
"Agent").
Expenses (including attorneys' fees) incurred in defending an action, suit,
or proceeding may be paid by the Company in advance of the final disposition of
such action, suit, or proceeding, to the fullest extent permitted by Delaware
law, upon receipt of an undertaking by the Agent to repay the amount of expenses
so advanced if it shall be determined that the Agent is not entitled to be
indemnified. The Company may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, fiduciary, or agent of the
Company or any of its subsidiaries against any liability asserted against and
incurred by such person in any such capacity or arising out of such person's
position, whether or not the Company would have the power to indemnify against
such liability under the provisions of this Article 10. The indemnification
provided by this Article 10 shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under this Certificate of Incorporation,
any bylaw, agreement, vote of stockholders or disinterested directors, statute,
or otherwise, and shall inure to the benefit of the heirs, executors, and
administrators of an indemnified party. The provisions of this Article 10 shall
not be deemed to preclude the Company from indemnifying other persons from
similar or other expenses and liabilities as the Board of Directors or the
stockholders may determine.
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CERTIFICATE OF MERGER
TREND MINING COMPANY
A MONTANA CORPORATION
INTO
NEW TREND OF MONTANA COMPANY
A DELAWARE CORPORATION
Pursuant to the provisions of Section 252 of the Delaware General
Corporation Law, the undersigned corporations certify that each has approved,
adopted, certified, executed and acknowledged the following Certificate of
Merger for the purpose of merging Trend Mining Company, a Montana corporation
("Trend"), with and into New Trend of Montana Company, a Delaware corporation
("New Trend").
1. On January 26, 2001, the Agreement and Plan of Merger (the
"Agreement") was approved, adopted, certified, executed and acknowledged by
Trend and New Trend in the manner prescribed by the Delaware General Corporation
Law and the Montana Business Corporation Act.
2. On February 23, 2001, the Agreement was approved and adopted by the
stockholders of each of the undersigned corporations in the manner prescribed by
the Delaware General Corporation Law and the Montana Business Corporation Act.
3. The name of the Surviving Corporation shall be New Trend of Montana
Company which will change its name to Trend Mining Company.
4. The Certificate of Incorporation of New Trend shall be the Certificate
of Incorporation of the Surviving Corporation. The name will be changed to Trend
Mining Company.
5. The executed Agreement is on file at the principal place of business
of the Surviving Corporation, which is 401 Front Avenue, Suite 1, Second Floor,
Coeur d'Alene, Idaho, 83814.
6. A copy of the Agreement will be furnished by the Surviving Corporation
on request and without cost, to any stockholder of Trend or New Trend.
7. The merger shall be effective on the date this Certificate is filed
with the Secretary of State.
Dated this 27th day of March, 2001.
TREND MINING COMPANY
a Montana corporation
By: /s/ Kurt J. Hoffman
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Kurt J. Hoffman, President and
Chief Executive Officer
ATTEST:
/s/ Brian L. Miller
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Brian L. Miller, Secretary
NEW TREND OF MONTANA COMPANY
a Delaware corporation
By: /s/ Kurt J. Hoffman
----------------------------------
Kurt J. Hoffman, President and
Chief Executive Officer
ATTEST:
/s/ Brian L. Miller
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Brian L. Miller, Secretary
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