EXHIBIT 4(b)
FORM OF
CERTIFICATE OF DESIGNATIONS
$____ SERIES B CONVERTIBLE PREFERRED STOCK
OF
AMAX GOLD INC.
PAR VALUE $1.00 PER SHARE
LIQUIDATION VALUE $50 PER SHARE
PURSUANT TO SECTION 151 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned duly authorized officer of Amax Gold Inc., a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), in accordance with the provisions of Section 103 of the General
Corporation Law of the State of Delaware (the "DGCL"), and pursuant to Section
151 thereof, hereby certifies as follows:
FIRST: The Restated Certificate of Incorporation, as amended, of the
Corporation authorizes the issuance of up to 210,000,000 shares of capital
stock, of which 200,000,000 shares shall be shares of common stock, par value
$.01 per share ("Common Stock"); and 10,000,000 shares shall be shares of
preferred stock, par value $1.00 per share ("Preferred Stock").
SECOND: The Restated Certificate of Incorporation, as amended, of the
Corporation, authorizes the Board of Directors of the Corporation to provide
for the issuance of Preferred Stock in one or more series, with such
designation, powers, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, as
shall be stated and expressed in the resolution or resolutions providing for
the issue of such series adopted by the Board of Directors of the Corporation,
subject to the limitations prescribed by law and except as otherwise provided
in the Restated Certificate of Incorporation or any amendment thereto.
THIRD: Pursuant to authority conferred upon the Board of Directors of the
Corporation by the Restated Certificate of Incorporation, as amended, of the
Corporation under the provisions of Section 151 of the DGCL, the Board of
Directors of the Corporation, at meetings duly held on July 26, 1994 and ____
__, 1994, adopted the following resolutions providing for an issue of a series
of the Corporation's Preferred Stock, which resolutions are still in full force
and effect and are not in conflict with any provision of the Restated
Certificate of Incorporation, as amended, or the By-Laws of the Corporation:
"RESOLVED, that pursuant to the authority vested in the Board of Directors of
the Corporation by Section 151 of the DGCL and the provisions of its Restated
Certificate of Incorporation, as amended, an issue of a series of the Preferred
Stock, par value $1.00 per share, of the Corporation is hereby created,
consisting of 1,725,000 shares, with the designations, powers, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, of the shares of such series as follows:
(1) Designation, Number of Shares and Rank. The designation of such series
shall be "$____ Series B Convertible Preferred Stock" (hereinafter referred to
as the "Convertible Preferred Stock"). Each share of Convertible Preferred
Stock shall be identical in all respects with the other shares of Convertible
Preferred Stock.
All shares of Convertible Preferred Stock shall rank prior, both as to
payment of dividends and as to distributions of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
to all of the Corporation's now or hereafter issued Common Stock.
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(2) Dividends. The holders of shares of Convertible Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Corporation, but only out of funds legally available therefor, dividends at the
annual rate of $____ per share, and no more, which shall be fully cumulative,
shall accrue without interest from the date of first issuance and shall be
payable in cash in equal quarterly installments on the 1st day of ______,
______, ______ and ______ of each year, commencing on ______ 1994 (except that
if any such date is not a business day, then such dividend shall be payable on
the next succeeding business day) (each, a "Dividend Payment Date"), to
stockholders of record as they appear on the stock transfer books of the
Corporation on such record dates, not more than 60 nor less than 10 days
preceding such Dividend Payment Date, as are fixed by the Board of Directors of
the Corporation. For the purposes hereof, the term "business day" shall mean
each Monday, Tuesday, Wednesday, Thursday or Friday which is not a day on which
banking institutions are authorized or obligated by law or executive order to
close in New York, New York. Subject to the next paragraph of this Section 2,
dividends on account of arrears for any past dividend periods may be declared
and paid at any time, without reference to any Dividend Payment Date, to holders
of record on such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors of the Corporation. The
amount of dividends payable per share of Convertible Preferred Stock for each
quarterly dividend period shall be computed by dividing the annual amount by
four. The amount of dividends payable on the Convertible Preferred Stock for the
initial dividend period and for any period less than a full quarterly dividend
period shall be computed on the basis of a 360 day year consisting of twelve 30-
day months. Holders of shares of Convertible Preferred Stock shall not be
entitled to any dividend whether payable in cash, property or stock, in excess
of the full cumulative dividends on such shares of Convertible Preferred Stock.
On each Dividend Payment Date all dividends which shall have accrued on each
share of Convertible Preferred Stock outstanding on such Dividend Payment Date
shall accumulate and be deemed to become "due" whether or not declared and
whether or not there shall be funds legally available for the payment thereof.
Any dividend which shall not be paid on the Dividend Payment Date on which it
shall become due shall be deemed to be "past due" until such dividend shall be
paid or until the share of Convertible Preferred Stock with respect to which
such dividend became due shall no longer be outstanding, whichever is the
earlier to occur. No interest or sum of money or other property or securities
in lieu of interest shall be payable in respect of any dividend payment or
payments which are past due. Dividends paid on shares of Convertible Preferred
Stock in an amount less than the total amount of such dividends at the time
accumulated 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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No dividends or other distributions, other than dividends payable solely in
shares of Common Stock, shall be paid, or declared and set apart for payment in
respect of, and no purchase, redemption or other acquisition for any
consideration shall be made by the Corporation of and no sinking fund or other
analogous fund payments shall be made in respect of any shares of Common Stock
or other capital stock of the Corporation ranking junior as to dividends or as
to liquidation rights to the Convertible Preferred Stock (the "Junior Dividend
Stock") unless and until all accrued and unpaid dividends on the Convertible
Preferred Stock, including the full dividend for the then current dividend
period, shall have been paid or declared and set apart for payment and the
Corporation is not in default in respect of the optional redemption of any
shares of Convertible Preferred Stock.
No dividends or other distributions shall be paid or declared and set apart
for payment and no purchase, redemption or other acquisition for any
consideration shall be made by the Corporation of, and no sinking fund or other
analogous fund payments shall be made in respect of, any class or series of the
Corporation's capital stock ranking, as to dividends, on a parity with the
Convertible Preferred Stock (the "Parity Dividend Stock"), including any then
outstanding $2.25 Series A Covertible Preferred Stock, par value $1.00 per share
(the "Series A Preferred Stock"), for any period unless full cumulative
dividends have been, or contemporaneously are, paid or declared and set apart
for such payment on the Convertible Preferred Stock for all dividend payment
periods terminating on or prior to the date of payment of such full cumulative
dividends. No dividends shall be paid or declared and set apart for payment on
the Convertible Preferred Stock for any period unless full cumulative dividends
have been, or contemporaneously are, paid or declared and set apart for payment
on the Parity Dividend Stock for all dividend periods terminating on or prior to
the date of payment of such full cumulative dividends. When dividends are not
paid in full upon the Convertible Preferred Stock and the Parity Dividend Stock,
all dividends paid or declared and set apart for payment upon shares of
Convertible Preferred Stock and the Parity Dividend Stock shall be paid or
declared and set apart for payment pro rata so that the amount of dividends paid
or declared and set apart for payment per share on the Convertible Preferred
Stock and the Parity Dividend Stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on the shares of
Convertible Preferred Stock and the Parity Dividend Stock bear to each other.
The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of capital stock of
the Corporation or any Parity Dividend Stock unless the Corporation could, under
this Section 2, purchase or otherwise acquire such shares at such time and in
such manner.
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Any reference to "distribution" contained in this Section 2 shall not be
deemed to include any distribution made in connection with any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary.
(3) Liquidation Preference. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the holders of
shares of Convertible Preferred Stock shall be entitled to receive out of the
assets of the Corporation, whether such assets are stated capital or surplus of
any nature, an amount equal to the dividends accrued and unpaid thereon to the
date of final distribution to such holders, whether or not declared, without
interest, and a sum equal to $50.00 per share, and no more, before any payment
shall be made or any assets distributed to the holders of Common Stock or any
other class or series of the Corporation's capital stock ranking junior as to
liquidation rights to the Convertible Preferred Stock (the "Junior Liquidation
Stock"). In the event the assets of the Corporation available for distribution
to stockholders upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, shall be insufficient to pay in
full the amounts payable with respect to the Convertible Preferred Stock and
any other class or series of the Corporation's capital stock which has been or
may hereafter be created ranking on a parity as to liquidation rights with the
Convertible Preferred Stock (the "Parity Liquidation Stock"), including any then
outstanding Series A Preferred Stock, the holders of the Convertible Preferred
Stock and the holders of the Parity Liquidation Stock shall share ratably in any
distribution of assets of the Corporation in proportion to the full respective
preferential amounts to which they are entitled (but only to the extent of such
preferential amounts). After payment in full of the liquidation preferences of
the shares of Convertible Preferred Stock, the holders of such shares shall not
be entitled to any further participation in any distribution of assets by the
Corporation. Neither a consolidation, merger or other business combination of
the Corporation with or into another corporation or other entity nor a sale or
transfer of all or part of the Corporation's assets for cash, securities or
other property shall be considered a liquidation, dissolution or winding up of
the Corporation for purposes of this Section 3 (unless in connection therewith
the liquidation of the Corporation is specifically approved).
The holder of any shares of Convertible Preferred Stock shall not be entitled
to receive any payment owed for such shares under this Section 3 until such
holder shall cause to be delivered to the Corporation (i) the certificate(s)
representing such shares of Convertible Preferred Stock and (ii) transfer
instrument(s) satisfactory to the Corporation and sufficient to transfer such
shares of Convertible Preferred Stock to the Corporation free of any liens or
encumbrances thereon or rights of third parties thereto. As in the case of the
Redemption Price referred to below, no interest shall accrue on any payment
upon liquidation after the due date thereof.
(4) Redemption at the Option of the Corporation.
(a) Right of Redemption. Subject to and upon compliance with the provisions
of this Section 4, the Corporation, at its option, may at any time redeem the
Convertible Preferred Stock, in whole or from time to time in part, on any date
on or after ______, 1997 set by the Board of Directors of the Corporation, at
the following redemption prices per share, if redeemed during the 12-month
period commencing on __________, of the year indicated:
Price per
Years Share
----- ---------
1997................................................. $
1998.................................................
1999.................................................
2000.................................................
2001.................................................
2002.................................................
2003.................................................
2004 and thereafter.................................. 50.00
plus in each case accrued and unpaid dividends to, but excluding, the date of
redemption.
In case of the redemption of less than all of the then outstanding
Convertible Preferred Stock, the shares of Convertible Preferred Stock to be
redeemed shall be redeemed pro rata or by lot or in such other equitable manner
as the Board of Directors of the Corporation reasonably may determine.
Notwithstanding the
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foregoing, the Corporation shall not redeem less than all of the Convertible
Preferred Stock at any time outstanding until all dividends accrued and in
arrears upon all Convertible Preferred Stock and Parity Dividend Stock then
outstanding shall have been paid for all past dividend periods.
(b) Manner of Exercise of Redemption Option. In order to exercise its
redemption option, the Corporation must give written notice in person or by
first class mail, postage prepaid, of such redemption to each holder of record
of the shares of Convertible Preferred Stock to be redeemed, at such holder's
address as it shall appear upon the stock transfer books of the Corporation not
more than 60 days nor less than 30 days prior to the redemption date. Each such
notice of redemption shall state, as appropriate: (1) the date fixed for
redemption; (2) the number of shares of Convertible Preferred Stock to be
redeemed and, if fewer than all of the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3) the
Redemption Price per share of Convertible Preferred Stock; (4) the place or
places of payment that payment of the Redemption Price will be made upon
presentation and surrender of the certificate or certificates evidencing the
shares of Convertible Preferred Stock to be redeemed; (6) that on and after the
redemption date, dividends will cease to accrue on such shares; and (7) the
then effective Conversion Price pursuant to Section 5 and that the right of
holders to convert shall terminate at the close of business on the redemption
date (unless the Corporation defaults in the payment of the Redemption Price).
Any notice that is delivered or mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the holder of the
Convertible Preferred Stock receives such notice; and failure to give such
notice, or any defect in such notice, to the holders of any shares designated
for redemption shall not affect the validity of the proceedings for the
redemption of any other shares of Convertible Preferred Stock. On or after the
date fixed for redemption as stated in such notice, each holder of the shares of
Convertible Preferred Stock called for redemption shall surrender the
certificate or certificates evidencing such shares to the Corporation at the
place designated in such notice and shall thereupon be entitled to receive
payment of the Redemption Price as herein provided. If less than all the shares
represented by any such surrendered certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares. 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 certificates evidencing any shares so called for
redemption shall not have been surrendered, the dividends with respect to the
shares so called shall cease to accrue after the date fixed for redemption, the
shares no longer shall be deemed outstanding, the holders thereof shall cease to
be holders of Convertible Preferred Stock, and all rights whatsoever with
respect to the shares so called for redemption (except the right of the holders
to receive payment of the Redemption Price as herein provided, without interest,
upon surrender of their certificates therefor) shall terminate. Any cash
necessary for the redemption of shares of Convertible Preferred Stock shall be
deemed to be available therefor for purposes of the preceding sentence and for
purposes of Section 7, if, on or before the date fixed for redemption, the
Company shall deposit with a bank or trust company that has an office in the
Borough of Manhattan, City of New York, and that has, or is an affiliate of a
bank that has, a capital surplus of at least $50,000,000, the cash necessary for
such redemption, in trust, with irrevocable instructions that such cash be
applied to the redemption of the shares of the Convertible Preferred Stock and
any Parity Dividend Stock so called for redemption. No interest shall accrue for
the benefit of the holders of shares of Convertible Preferred Stock to be
redeemed on any cash so set apart by the Corporation. Subject to applicable
escheat laws, any such cash unclaimed at the end of six years from the
redemption date shall revert to the general funds of the Corporation, after
which reversion the holders of such shares so called for redemption shall look
only to the general funds of the Corporation for the payment of such cash.
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The holder of any shares of Convertible Preferred Stock redeemed upon any
exercise of the Corporation's redemption right shall not be entitled to receive
payment of the Redemption Price for such shares until such holder shall cause
to be delivered to the place specified in the notice given with respect to such
redemption (i) the certificate or certificates representing such shares of
Convertible Preferred Stock redeemed and (ii) transfer instruments satisfactory
to the Corporation and sufficient to transfer such shares of Convertible
Preferred Stock to the Corporation free of any adverse interest. No interest
shall accrue on the Redemption Price of any share of Convertible Preferred
Stock after its redemption date.
In the event that any shares of Convertible Preferred Stock shall be
converted into Common Stock pursuant to Section 5, then (i) the Corporation
shall not have the right to redeem such shares and (ii) any funds which shall
have been deposited for the payment of the Redemption Price for such shares of
Convertible Preferred Stock shall be returned to the Corporation immediately
after such conversion (subject to declared dividends payable to holders of
shares of Convertible Preferred Stock on the record date for such dividends, to
the extent set forth in Section 5 hereof, regardless of whether such shares are
converted subsequent to such record date and prior to the related Dividend
Payment Date).
(c) Cash Payments in Lieu of Fractional Shares. No fractional shares of
Convertible Preferred Stock shall be issued upon any redemption of Convertible
Preferred Stock, but, in lieu thereof, the Corporation shall pay to the holder
of such shares an appropriate amount in cash (computed to the nearest cent)
based on the value of the shares of Convertible Preferred Stock as determined in
good faith by the Corporation's Board of Directors.
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(5) Conversion.
(a) Right of Conversion. Subject to and upon compliance with the provisions
of this Section 5, each share of Convertible Preferred Stock shall, at the
option of the holder thereof, be convertible at any time (unless such share is
called for redemption, then to and including but not after 5:00 p.m. (New York
City time) on the date fixed for such redemption, unless the Corporation shall
default in payment due upon redemption thereof), into that number of fully paid
and non-assessable shares of Common Stock (calculated as to each conversion to
the nearest 1/100th of a share) obtained by dividing $50.00 by the Conversion
Price (as defined in Section 5(d)) in effect at such time and by surrender of
such share so to be converted in the manner provided in Section 5(b).
(b) Manner of Exercise of Conversion Privilege. In order to exercise the
conversion privilege, the holder of one or more shares of Convertible Preferred
Stock to be converted shall surrender such shares at any of the offices or
agencies to be maintained for such purpose by the Corporation accompanied by
the funds, if any, required by the last paragraph of this Section 5(b) and
shall give written notice of conversion in the form provided on such shares of
Convertible Preferred Stock (or such other notice as is reasonably acceptable
to the Corporation) to the Corporation at such office or agency that the holder
elects to convert the shares of Convertible Preferred Stock specified in said
notice. Such notice shall also state the name or names, together with address
or addresses, in which the certificate or certificates for shares of Common
Stock which shall be issuable on such conversion shall be issued. Each share of
Convertible Preferred Stock surrendered for conversion, unless the shares
issuable on conversion are to be issued in the same name as the name in which
such share of Convertible Preferred Stock is registered, shall be accompanied
by instruments of transfer, in form satisfactory to the Corporation, duly
executed by the holder or such holder's duly authorized attorney. As promptly as
practicable after the surrender of such shares of Convertible Preferred Stock
and the receipt of such notice, instruments of transfer and funds, if any, as
aforesaid, the Corporation shall issue and shall deliver at such office or
agency to such holder, or on his written order, a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
such shares of Convertible Preferred Stock in accordance with the provisions of
this Section 5 and a check or cash in respect of any fractional interest in a
share of Common Stock arising upon such conversion, as provided in Section 5(c).
Each conversion shall be deemed to have been effected immediately prior to
the close of business on the business day following the date on which such
shares of Convertible Preferred Stock shall have been surrendered and such
notice (and any applicable instruments of transfer and any required taxes)
received by the Corporation as aforesaid, and the person or persons in whose
name or names any certificate or certificates for shares of Common Stock shall
be issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby at such time on such date,
and such conversion shall be at the Conversion Price in effect at such time on
such date, unless the stock transfer books of the Corporation shall be closed
on that date, in which event such person or persons shall be deemed to have
become such holder or holders of record at the close of business on the next
succeeding day on which such stock transfer books are open, and such conversion
shall be at the Conversion Price in effect on the close of business on such next
succeeding business day upon which such shares of Convertible Preferred
Stock shall have been surrendered and such notice received by the Corporation.
Any shares of Convertible Preferred Stock surrendered for conversion during
the period from the close of business on the record date for any dividend
payment to the opening of business on the related Dividend
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Payment Date (unless such shares of Convertible Preferred Stock shall have been
called for redemption on a date in such period) shall be accompanied by
payment, in funds acceptable to the Corporation, of an amount equal to the
dividend otherwise payable on such Dividend Payment Date. Except as provided
for above in this Section, no adjustment shall be made for dividends accrued on
any shares of Convertible Preferred Stock converted or for dividends on any
shares issued upon the conversion of such shares as provided in this Section.
(c) Cash Payments in Lieu of Fractional Shares. No fractional shares or scrip
representing fractions of shares of Common Stock shall be issued upon conversion
of Convertible Preferred Stock. If more than one share of Convertible Preferred
Stock shall be surrendered for conversion at one time by the same holder, the
number of full shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate of $50.00 for each such share so
surrendered. In lieu of any fractional interest in a share of Common Stock which
would otherwise be deliverable upon the conversion of any share of Convertible
Preferred Stock, the Corporation shall pay to the holder of such shares an
amount in cash (computed to the nearest cent) equal to the average Closing Price
per share of Common Stock as calculated for the trading period ending on the
fifth trading day prior to the day of conversion multiplied by the fractional
interest in a share of Common Stock that otherwise would have been deliverable
upon conversion of such share.
(d) Adjustment of Conversion Price. The "Conversion Price" shall mean and be
$_____, subject to adjustment from time to time by the Corporation as follows:
(i) In case the Corporation shall (A) pay a dividend or make a
distribution on its Common Stock in shares of Common Stock (other than
pursuant to a dividend reinvestment or similar plan), (B) subdivide its
outstanding shares of Common Stock into a greater number of shares, (C)
combine its outstanding shares of Common Stock into a smaller number of
shares, or (D) issue by reclassification of its Common Stock any shares of
capital stock of the Corporation, then in each such case the Conversion
Price in effect immediately prior to such action shall be adjusted so that
the holder of any share of Convertible Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the number of
shares of Common Stock or other capital stock of the Corporation which he
would have owned or been entitled to receive immediately following such
action had such share been converted immediately prior to the occurrence of
such event. An adjustment made pursuant to this subsection (i) shall become
effective immediately after the record date, in the case of a dividend or
distribution, or immediately after the effective date, in the case of a
subdivision, combination or reclassification.
(ii) In case the Corporation shall issue rights, options or warrants to
all holders of its outstanding shares of Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less
than the current market price per share (as determined pursuant to
subsection (iv) of this Section 5(d)) of the Common Stock (other than
pursuant to any stock option, restricted stock or other
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incentive or benefit plan or stock ownership or purchase plan for the
benefit of employees, directors or officers or any dividend reinvestment
plan of the Corporation in effect at the time hereof or any other similar
plan adopted or implemented hereafter), then with respect to any conversion
prior to the expiration of such rights, options or warrants, the Conversion
Price in effect immediately prior thereto shall be adjusted so that it
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the date of issuance of such rights, options or
warrants by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding on the date of issuance of such rights, options
or warrants (immediately prior to such issuance) plus the number of shares
which the aggregate offering price of the total number of shares so offered
would purchase at such current market price, and of which the denominator
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights, options or warrants (immediately prior to such
issuance) plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall be made successively
whenever any rights, options or warrants are issued, and shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options or warrants;
provided, however, in the event that all the shares of Common Stock offered
for subscription or purchase are not delivered upon the exercise of such
rights, options or warrants, upon the expiration of such rights, options or
warrants the Conversion Price shall be readjusted to the Conversion Price
which would have been in effect had the numerator and the denominator of
the foregoing fraction and the resulting adjustment been made based upon
the number of shares of Common Stock actually delivered upon the exercise
of such rights, options or warrants rather than upon the number of shares
of Common Stock offered for subscription or purchase. In determining
whether any rights, options or warrants entitle the holders to subscribe
for or purchase shares of Common Stock at less than such current market
price, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received
by the Corporation for such rights, options or warrants, the value of such
consideration, if other than cash, to be determined by the Audit Committee
of the Board of Directors of the Corporation (whose reasonable
determination shall be conclusive, except for arithmetic errors, and shall
be described in a statement filed by the Corporation with the stock
transfer agent).
(iii) In case the Corporation shall, by dividend or otherwise, distribute
to all holders of its outstanding Common Stock, evidences of its
indebtedness or assets (including securities and cash, but excluding any
cash dividend of the Corporation paid out of retained earnings and
dividends or distributions payable in stock pursuant to a dividend
reinvestment or similar plan or for which adjustment is made pursuant to
subsection (i) of this Section 5(d)) or rights, options or warrants to
subscribe for or purchase securities of the Corporation (excluding those
referred to in subsection (ii) of this Section 5(d)), then in each such
case the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect
immediately prior to the record date of such distribution by a fraction of
which the numerator shall be the current market price per share of the
Common Stock as determined pursuant to subsection (iv) of this Section 5(d)
less the fair market value on such record date (as determined by the Audit
Committee of the Board of Directors of the Corporation, whose reasonable
determination shall be conclusive, except for arithmetic errors, and shall be
described in a statement filed by the Corporation with the stock transfer
agent) of the portion of the capital stock or assets or the evidences of
indebtedness or assets so distributed to the holder of one share of Common
Stock or of such subscription rights, options or warrants applicable to one
share of Common Stock, and of which the denominator shall be such current
market price per share of Common Stock. Such adjustment shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such distribution.
(iv) For the purpose of any computation under subsections (ii) and (iii)
of this Section 5(d), the current market price per share of Common Stock on
any date shall be deemed to be the average of the Closing Price for the
shorter of (A) 30 consecutive trading days ending on the last full trading
day prior to the Time of Determination or (B) the period commencing on the
date next succeeding the first public announcement of the issuance of such
rights, options or warrants or such distribution through such last
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full trading day prior to the Time of Determination. For purposes of the
foregoing, the term "Time of Determination" shall mean the time and date of
the earlier of (I) the record date for determining stockholders entitled to
receive the rights, options, warrants or distributions referred to in
Section 5(d) (ii) and (iii) or (II) the commencement of "ex-dividend" trading
on the New York Stock Exchange or such other United States exchange or market
on which the Common Stock of the Corporation is then listed or admitted for
trading.
(v) In any case in which this Section 5(d) shall require that an
adjustment be made immediately following a record date or an effective
date, the Corporation may elect to defer (but only until the filing by the
Corporation with the stock transfer agent of the certificate required by
subsection (vii) of this Section 5(d)) issuing to the holder of any share of
Convertible Preferred Stock converted after such record date or effective date
the shares of Common Stock issuable upon such conversion over and above the
shares of Common Stock issuable upon such conversion on the basis of the
Conversion Price prior to adjustment, and paying to such holder any amount of
cash in lieu of a fractional share.
(vi) No adjustment in the Conversion Price shall be required to be made
unless such adjustment would require an increase or decrease of at least 1%
of such price; provided, however, that any adjustments which by reason of
this subsection (vi) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under
this Section 5(d) shall be made to the nearest cent or to the nearest
1/100th of a share, as the case may be. Anything in this Section 5(d) to
the contrary notwithstanding, the Corporation shall be entitled to make
such reduction in the Conversion Price, in addition to those required by
this Section 5(d), as it in its discretion shall determine to be advisable
in order that any stock dividend, subdivision of shares, distribution of
rights to purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock hereafter made by the
Corporation to its stockholders shall not be taxable to the recipients.
Except as set forth in subsections (i), (ii) and (iii) above, the
Conversion Price shall not be adjusted for any such event including,
without limitation, the issuance of Common Stock, or any securities
convertible into or exchangeable for Common Stock or carrying the right to
purchase any of the foregoing, in exchange for cash, property or services.
(vii) Whenever the Conversion Price is adjusted as herein provided, (A)
the Corporation promptly shall file with the stock transfer agent a
certificate setting forth the Conversion Price after such adjustment and a
brief statement of the facts requiring such adjustment and the manner of
computing the same, which certificate shall be conclusive evidence of the
correctness of such adjustment, except for arithmetic errors, and (B) the
Corporation also shall deliver or mail, or cause to be delivered or mailed by
first class mail, postage prepaid, as soon as practicable to each holder of
record of shares of Convertible Preferred Stock a notice stating that the
Conversion Price has been adjusted and setting forth the adjusted Conversion
Price. The stock transfer agent shall not be under any duty or responsibility
with respect to the certificate required by this subsection (vii) except to
exhibit the same to any holder of shares of Convertible Preferred Stock who
requests to inspect it.
(viii) In the event that at any time, as a result of an adjustment made
pursuant to subsection (i) of this Section 5(d), the holder of any share of
Convertible Preferred Stock thereafter surrendered for conversion shall
become entitled to receive any shares of the Corporation other than shares
of Common Stock, thereafter the Conversion Price of such other shares so
receivable upon conversion of any share of Convertible Preferred Stock
shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to
Common Stock contained in this Section.
(ix) The Corporation from time to time may decrease the Conversion Price
by any amount for any period of time if the period is at least 20 days and
if the decrease is irrevocable during the period. Whenever the Conversion
Price is so decreased, the Corporation shall deliver or mail to holders of
record of shares of Convertible Preferred Stock a notice of the decrease at
least 15 days before the date the
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decreased Conversion Price takes effect, and such notice shall state the
decreased Conversion Price and the period it will be in effect.
(e) Notice to Holders Prior to Certain Corporate Actions. In case:
(i) the Corporation shall take any action which would require an
adjustment in the Conversion Price pursuant to Section 5(d)(iii); or
(ii) the Corporation shall authorize the granting to the holders of
its Common Stock generally of rights, options or warrants to subscribe
for or purchase any shares of stock of any class or of any other
rights; or
(iii) there shall be any reorganization or reclassification of the
Common Stock (other than a subdivision or combination of the
outstanding Common Stock and other than a change in the par value of
the Common Stock), or any consolidation or merger to which the
Corporation is a party or any statutory exchange of securities with
another corporation and for which approval of any stockholders of the
Corporation is required, or any sale, lease or transfer of all or
substantially all of the assets of the Corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Corporation;
then in each such case the Corporation shall cause to be delivered or mailed by
first class mail, postage prepaid, to the holders of shares of Convertible
Preferred Stock and the stock transfer agent, as promptly as possible, but in
any event at least 20 days prior to the applicable date hereinafter specified, a
written notice stating (i) the date on which a record is to be taken for the
purpose of such action or granting of rights, options or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such distribution, rights, options or warrants are to
be determined, or (ii) the date on which such reorganization, reclassification,
consolidation, merger, statutory exchange, sale, lease, transfer, dissolution,
liquidation or winding-up is expected to become effective or occur, and the date
as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, statutory exchange, sale, lease, transfer, dissolution, liquidation or
winding-up. Failure to give such notice or any defect therein shall not affect
the legality or validity or the proceedings described in subsection (i), (ii),
(iii) or (iv) of this Section 5 (e).
(f) Reservation of Shares of Common Stock. The Corporation covenants that it
will, at all times, reserve and keep available, free from preemptive rights,
out of the aggregate of its authorized but unissued shares of Common Stock for
the purpose of effecting conversions of shares of Convertible Preferred Stock,
the full number of shares of Common Stock deliverable upon the conversion of
all outstanding shares of Convertible Preferred Stock not theretofore converted
and on or before (and as a condition of) taking any action that would cause an
adjustment of the Conversion Price resulting in an increase in the number of
shares of Common Stock deliverable upon conversion above the number thereof
previously reserved and available therefor, the Corporation shall take all such
action so required. For purposes of this Section 5(f), the number of shares of
Common Stock which shall be deliverable upon the conversion of all outstanding
shares of Convertible Preferred Stock shall be computed as if at the time of
computation all outstanding shares of Convertible Preferred Stock were held by
a single holder.
Before taking any action that would cause an adjustment reducing the
Conversion Price below the then par value (if any) of the shares of Common
Stock deliverable upon conversion of the shares of Convertible Preferred Stock,
the Corporation shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and non-assessable shares of Common Stock at such adjusted
Conversion Price.
(g) Transfer Taxes, Etc. The Corporation shall pay any and all documentary
stamp, issue or transfer taxes, and any other similar taxes payable in respect
of the issue or delivery of shares of Common Stock upon
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conversion of shares of Convertible Preferred Stock pursuant hereto; provided,
however, that the Corporation shall not be required to pay any tax that may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock in a name other than that of the holder of the shares of
Convertible Preferred Stock to be converted and no such issue or delivery shall
be made unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(h) Consolidation or Merger or Sale of Assets. Notwithstanding any other
provision herein to the contrary, in case of any consolidation or merger to
which the Corporation is a party (other than a merger or consolidation in which
the Corporation is the continuing corporation and in which the Common Stock
outstanding immediately prior to the merger or consolidation is not exchanged
for cash, or the securities or other property of another corporation), or in
case of any sale, lease or transfer to another corporation of the property of
the Corporation as an entirety or substantially as an entirety, then lawful
provision shall be made by the corporation formed by such consolidation or the
corporation whose securities, cash or other property immediately after the
merger or consolidation will be owned, by virtue of the merger or
consolidation, by the holders of Common Stock immediately prior to the merger
or consolidation, or the corporation which shall have acquired such assets or
securities of the Corporation (collectively the "Formed, Surviving or Acquiring
Corporation"), as the case may be, providing that the holder of each share of
Convertible Preferred Stock then outstanding shall have the right thereafter to
convert such share into the kind and amount of securities, cash or other
property receivable upon such consolidation, merger, sale, lease or transfer by
a holder of the number of shares of Common Stock into which such share of
Convertible Preferred Stock might have been converted immediately prior to such
consolidation, merger, sale, lease or transfer assuming such holder of Common
Stock did not exercise his rights of election, if any, as to the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, sale, lease or transfer (provided that, if the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
sale, lease or transfer is not the same for each share of Common Stock in
respect of which such rights of election shall not have been exercised ("non-
electing share"), then for the purposes of this Section 5(h) the kind and
amount of securities, cash or other property receivable upon such
consolidation, merger, sale, lease or transfer for each nonelecting share shall
be deemed to be the kind and amount so receivable per share by a plurality of
the non-electing shares). The Formed, Surviving or Acquiring Corporation, as
the case may be, shall make provision in its certificate or articles of
incorporation or other constituent documents to the end that the provisions set
forth in this Section 5(h) shall thereafter correspondingly be made applicable,
as nearly as may reasonably be, in relation to any shares of stock or other
securities or property thereafter deliverable on the conversion of the
Convertible Preferred Stock.
The above provisions of this Section 5(h) shall similarly apply to successive
consolidations, mergers, sales, leases or transfers.
(i) Covenant as to Common Stock. The Corporation covenants that all shares of
Common Stock which may be delivered upon conversions of shares of Convertible
Preferred Stock will upon delivery be duly and validly issued and fully paid
and nonassessable, free of all liens and charges and not subject to any
preemptive rights.
The Corporation will list and keep listed, so long as the Common Stock shall
be listed on The New York Stock Exchange, all Common Stock issuable upon
conversion of the shares of Convertible Preferred Stock.
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(6) Voting Rights.
(a) General. The holders of Convertible Preferred Stock shall not have any
voting rights except as set forth below or as otherwise from time to time
required by law. In connection with any right to vote, each holder of
Convertible Preferred Stock will have one vote for each share held. Any shares
of Convertible Preferred Stock held by the Corporation or any entity controlled
by the Corporation shall not have voting rights hereunder and shall not be
counted in determining the presence of a quorum.
(b) Default Voting Rights. Whenever dividends on the Convertible Preferred
Stock shall be in arrears in an amount equal to at least six quarterly dividend
payments (whether or not consecutive), (i) the number of members of the Board of
Directors of the Corporation shall be increased by two, effective as of the time
of election of such directors as hereinafter provided, and (ii) the holders of
the Convertible Preferred Stock (voting as a class together with all other
affected classes or series of the Parity Dividend Stock upon which like voting
rights have been conferred and are exercisable (other than the Series A
Preferred Stock)) will have the exclusive right to vote for and elect such two
additional directors of the Corporation at any meeting of stockholders of the
Corporation at which directors are to be elected held during the period such
dividends remain in arrears. The right of the holders of the Convertible
Preferred Stock to vote for such two additional directors shall terminate when
all accrued and unpaid dividends on the Convertible Preferred Stock have been
declared and paid or set apart for payment. The term of office of all directors
so elected shall terminate immediately upon the termination of the right of the
holders of the Convertible Preferred Stock and such Parity Dividend Stock to
vote for such two additional directors.
The foregoing right of the holders of the Convertible Preferred Stock with
respect to the election of two directors may be exercised at any annual meeting
of stockholders or at any special meeting of stockholders held for such
purpose. If the right to elect directors shall have accrued to the holders of
the Convertible Preferred Stock more than 90 days preceding the date
established for the next annual meeting of stockholders, the President of the
Corporation shall, within 20 days after the delivery to the Corporation at its
principal office of a written request for a special meeting signed by the
holders of at least ten percent (10%) of the Convertible Preferred Stock then
outstanding, call a special meeting of the holders of the Convertible Preferred
Stock to be held within 60 days after the delivery of such request for the
purpose of electing such additional directors.
The holders of the Convertible Preferred Stock and any such Parity Dividend
Stock referred to above (excluding the holders of Series A Preferred Stock)
voting together shall have the right to remove without cause at any time and
replace any directors such holders have elected pursuant to this Section 6.
(c) Class Voting Rights. So long as the Convertible Preferred Stock is
outstanding, the Corporation shall not, without the affirmative vote or consent
of the holders of at least 66 2/3 percent of all outstanding shares of
Convertible Preferred Stock (unless the vote or consent of a greater percentage
is required by applicable law or the Restated Certificate of Incorporation, as
amended, of the Corporation), voting separately as a class, (i) amend, alter or
repeal (by merger, consolidation or otherwise) any provision of the
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Restated Certificate of Incorporation, as amended, or the Bylaws of the
Corporation, as amended, so as to affect adversely the relative rights,
preferences, qualifications, limitations or restrictions of the Convertible
Preferred Stock, (ii) authorize or issue, or increase the authorized amount of,
any additional class or series of stock, or any security convertible into stock
of such class or series, ranking prior to the Convertible Preferred Stock in
respect of the payment of dividends or upon liquidation, dissolution or winding
up of the Corporation or (iii) effect any reclassification of the Convertible
Preferred Stock. A class vote on the part of the Convertible Preferred Stock,
without limitation, specifically shall not be deemed to be required (except as
otherwise required by law or resolution of the Board of Directors of the
Corporation) in connection with: (a) the authorization, issuance or increase in
the authorized amount of any shares of any other class or series of stock that
ranks junior to, or on a parity with, the Convertible Preferred Stock in
respect of the payment of dividends and upon liquidation, dissolution or
winding up of the Corporation; or (b) the authorization, issuance or increase
in the amount of any notes, bonds, mortgages, debentures or other obligations
of the Corporation not convertible into or exchangeable, directly or
indirectly, for stock ranking prior to the Convertible Preferred Stock in
respect of the payment of dividends or upon liquidation, dissolution or winding
up of the Corporation.
(7) Outstanding Shares. For purposes of this Certificate of Designations, all
shares of Convertible Preferred Stock shall be deemed outstanding except (i)
from the date fixed for redemption pursuant to Section 4, all shares of
Convertible Preferred Stock that have been so called for redemption under
Section 4 if the cash necessary for payment of the Redemption Price irrevocably
has been set aside; (ii) from the date of surrender of certificates representing
shares of Convertible Preferred Stock, all shares of Convertible Preferred Stock
converted into Common Stock; and (iii) from the date of registration of
transfer, all shares of Convertible Preferred Stock held of record by the
Corporation or any subsidiary of the Corporation.
(8) No Other Rights and Powers. The shares of Convertible Preferred Stock
shall not have any relative, participating, optional or other special rights
and powers other than as set forth herein.
(9) Preemptive Rights. The Convertible Preferred Stock is not entitled to any
preemptive or subscription rights in respect of any securities of the
Corporation.
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(10) Severability of Provisions. Whenever possible, each provision hereof
shall be interpreted in a manner as to be effective and valid under applicable
law, but if any provision hereof is held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating or otherwise adversely
affecting the remaining provisions hereof. If a court of competent jurisdiction
should determine that a provision hereof would be valid or enforceable if a
period of time were extended or shortened or a particular percentage were
increased or decreased, then such court may make such change as shall be
necessary to render the provision in question effective and valid under
applicable law.
"FURTHER RESOLVED, that each officer of the Corporation hereby is authorized,
in the name and on behalf of the Corporation, to prepare, execute, seal and
file, or cause to be prepared, executed, sealed and filed, the Certificate of
Designations relating to the Convertible Preferred Stock in accordance with the
Delaware General Corporation Law and to take any and all such action with
respect thereto that such officer of the Corporation shall deem necessary or
advisable; and
"FURTHER RESOLVED, that each officer of the Corporation hereby is authorized,
in the name and on behalf of the Corporation, to execute and deliver, or cause
to be made, executed and delivered, all such officers' certificates and such
other agreements, undertakings, documents or instruments and to perform such
other acts as such officer may deem necessary or appropriate in order to
effectuate the purpose and intent of these resolutions;
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed in its name ___________________, its
___________________________________, and attested by its Secretary, this ____
day of _______, 1994.
Amax Gold Inc.
By
-----------------------------------
[Name:]
--------------------------
[Title:]
-------------------------
---------------------------------
Attest:
By
------------------------------
Paul J. Hemschoot, Jr.
Secretary
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