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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SUNSHINE MINING AND REFINING COMPANY
(A DELAWARE CORPORATION)
The present name of the Corporation is Sunshine Mining and
Refining Company. The Corporation was incorporated under the name "Sunshine
Holdings, Inc." by the filing of its original Certificate of Incorporation with
the Secretary of State of the State of Delaware on June 1, 1988. This Amended
and Restated Certificate of Incorporation of the Corporation, which both
restates and further amends the provisions of the Corporation's Certificate of
Incorporation, was adopted in accordance with Section 303 of the General
Corporation Law of the State of Delaware. Provision for this Amended and
Restated Certificate of Incorporation is contained in an order dated December 5,
2000, of the United States Bankruptcy Court for the District of Delaware in In
re: Sunshine Mining and Refining Company, et. al. The Certificate of
Incorporation of the Corporation is hereby amended and restated to read in its
entirety as follows:
ARTICLE I
NAME
The name of the Corporation is Sunshine Mining and Refining
Company (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle, 19801. The name of its registered agent at
that address is The Corporation Trust Company.
ARTICLE III
CORPORATE PURPOSES
The purposes of the Corporation are to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "DGCL").
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ARTICLE IV
CAPITAL STOCK
The total number of shares of all classes of capital stock
that the Corporation is authorized to issue is two hundred and twenty million
(220,000,000) shares, 200,000,000 of which shares shall be common stock, par
value $0.01 per share ("COMMON STOCK") and 20,000,000 of which Shares shall be
designated as Preferred Stock, par value $0.01 per share ("Preferred"). The
Board of Directors of the Corporation is expressly authorized to provide from
time to time for the issue of all or any of the shares of Preferred in one or
more series, and to fix the number of shares and to determine or alter for each
such series, such voting powers, full or limited, and such designations,
preferences, and relative, participating, optional or other special rights, and
such qualifications, limitations, or restrictions thereof, as shall be stated
and express in the resolution or resolutions adopted by the Board of Directors
of the Corporation providing for the issue of such shares and as may be
permitted by the DGCL. All shares of capital stock shall be "voting" as required
by Section 1123(a) of the United States Bankruptcy Code.
ARTICLE V
CORPORATE EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VI
THE BOARD OF DIRECTORS
(a) Number of Directors. The number of directors comprising
the Board of Directors of the Corporation shall be five.
(b) Election of Directors. Elections of directors need not be
by written ballot unless the by-laws of the Corporation so provide.
(c) Classification of Directors. The directors of the
Corporation shall be divided into three classes. The term of office of the
directors of Class I shall expire at the annual meeting of the stockholders of
the Corporation in 2002. The term of office of the directors of Class II shall
expire at the annual meeting of the stockholders of the Corporation in 2003. The
term of office of the directors of the Class III shall expire at the annual
meeting of the stockholders of the Corporation in 2004. At each annual election
of directors, directors shall be chosen for a full three-year term to succeed
those whose terms expire. Directors elected from time to time other than as
successors to directors whose terms have expired, or to fill the remaining term
of a director previously elected, shall be assigned by the Board of Directors of
the Corporation to the first, second or third class so as to maintain, so far as
is possible, equal numbers of directors in each class.
(d) Vacancies. Except as required by law or this Certificate,
all vacancies on the Board must be filled by unanimous vote of the non-employee
directors then in office, although less than a quorum, or by a sole remaining
director. Vacancies may not be filled by the Stockholders.
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(e) Removal of Directors. Directors may not be removed other
than for "cause." As used herein, "cause" shall consist of the conviction in a
court of law for any felony involving fraud, theft, deception or breach of
fiduciary duties.
(f) Authority. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors of the Corporation is
expressly authorized to act as set forth in paragraphs (i), (ii) and (iii)
below:
(i) to make, alter, amend or repeal the By-Laws;
(ii) to designate one or more committees, each committee to
consist of one or more directors of the Corporation, which, to
the extent provided in the resolution designating the
committee or in the By-Laws of the Corporation, shall, subject
to the limitations prescribed by law or otherwise in this
Certificate of Incorporation, have and may exercise all the
powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all
papers which may require such seal (such committee or
committees shall have such name or names as may be provided in
the By-Laws of the Corporation or as may be determined from
time to time by resolution adopted by the Board of Directors);
and
(iii) to exercise, in addition to the powers and authorities
hereinbefore or by law conferred upon it, any such powers and
authorities and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless,
to the provisions of the laws of the State of Delaware and of
this Certificate of Incorporation (and in particular Article
III) and of the By-Laws of the Corporation.
Notwithstanding anything to the contrary contained in this
Article VI, the Board of Directors of the Corporation shall not act, or propose
to act, in any manner contrary to the provisions of the Call Option Agreement
and the Pledge Agreement.
(g) Voting on Certain Matters.
The following transactions shall require the approval of
two-thirds of the Corporation's directors:
(i) A merger or consolidation of the Corporation;
(ii) A sale or disposition of all or substantially all of the
Corporation's assets;
(iii) The appointment of the Corporation's chief executive
officer, chief financial officer or chief operating officer;
(iv) The issuance of common stock or securities or securities
convertible into common stock;
(v) Any change in the size of the Board of Directors;
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(vi) Any amendment to this Certificate of Incorporation or the
By-Laws of the Corporation; and
(vii) Any transaction between the Corporation and any
affiliate of the Corporation, Sunshine International Mining,
Inc. ("Newco") or Sunshine Argentina, Inc. ("Sunshine
Argentina") or any affiliate of The Liverpool Limited
Partnership, Elliott International, L.P., Stonehill
Institutional Partners, L.P. or Stonehill Offshore Partners
Limited (other than transactions between the Corporation and
any wholly-owned subsidiary of the Corporation other than
Newco or Sunshine Argentina);
(viii) Any borrowing by the Corporation in excess of US$3
million; and
(ix) Any material agreement with a material impact on the
value or the marketability of the Pirquitas Mine located in
Jujuy, Argentina.
Amendment of this provision shall require the approval of
two-thirds of the shares of Common Stock outstanding. The other provisions may
be amended pursuant to the Delaware General Corporation Code.
(h) Initial Directors. The names and mailing addresses of the
persons who are to serve as directors until the annual meeting of stockholders
at which their term expires or until their successors are elected and qualified
are as follows, each of whom shall serve in the class of directors set forth
beneath his or her name:
NAME ADDRESS
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John Simko - Class I 5956 Sherry Lane
Suite 6121
Dallas, Texas 75225
Charles C. Reardon - Class II 141 South Windsor Avenue
Bright Waters, New York 11718
Keith McCandlish - Class II #20, 708-11th
Avenue, S.W.
Calgary, Alberta
Canada, T2R0E4
Arnold Kastenbaum - Class III 655 Barrymore Lane
Mamaroneck, New York
10543
George Elvin - Class III 590 Madison Avenue
21st Floor
New York, New York
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ARTICLE VII
INDEMNIFICATION OF DIRECTORS
(a) To the fullest extent permitted by the Delaware General
Corporation Law, as it now exists or may hereafter be amended, a director or
officer of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director or
officer, except to the extent that such exemption from liability or limitation
thereof is not permitted under the Delaware General Corporation Law as the same
exists or may hereafter be amended. Any repeal or modification of this paragraph
by the stockholders of the Corporation shall be prospective only and shall not
adversely affect any limitation on the personal liability of a director or
officer of the Corporation existing at the time of such repeal or modification.
(b) To the fullest extent permitted by Section 145 of the DGCL
or any successor provisions thereto, (i) the Corporation shall (A) indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding (a "proceeding"),
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation, against
expenses (including reasonable attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding and (B) pay, upon receipt of any
undertaking to repay amounts advanced required by the DGCL, expenses incurred by
such person in defending a civil or criminal action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding, and (ii)
the Corporation may (A) indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was an employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding and (B) pay expenses incurred by such person in
defending a civil or criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding. Notwithstanding clause (i)(A) of
the preceding sentence, the Corporation shall be required to indemnify an
indemnitee in connection with a proceeding (or part thereof) commenced by such
indemnitee only if the commencement of such proceeding (or part thereof) by the
indemnitee was authorized by the Board of Directors of the Corporation. The
foregoing indemnification and advancement of expenses provisions shall not be
deemed exclusive of any other rights to indemnification or advancement of
expenses to which any such person may be entitled under any statute, by-law,
agreement, vote of stockholders or disinterested directors or otherwise and are
deemed to be contract rights with respect to each person entitled to the
benefits of such new provisions. Any change in law that purports to restrict the
ability of the Corporation to indemnify or advance expenses to any such person
shall not affect the Corporation's obligation or right to indemnify and advance
expenses to any such person with respect to any action, claim, suit or
proceeding that occurred or arose or that is based on events or acts that
occurred or arose, prior to such change in law.
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ARTICLE VIII
RESERVATION OF RIGHT TO AMEND
CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law and all the provisions of this
Certificate of Incorporation, and all rights and powers conferred in this
Certificate of Incorporation on stockholders, directors and officers are subject
to this reserved power.
IN WITNESS WHEREOF, pursuant to Section 303 of the DGCL and
the terms of a Plan of Reorganization approved by the United States Bankruptcy
Court for the District of Delaware, having jurisdiction over the Corporation,
the Corporation has caused this Amended and Restated Certificate of
Incorporation to be signed by its President and attested by its Secretary, all
on February 16, 2001.
SEAL By: /s/ William W. Davis
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Name: William W. Davis
President, Sunshine Mining and Refining Company
Attest:
/s/ Mary Jo Williams
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Name: Mary Jo Williams
Secretary, Sunshine Mining & Refining Company
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