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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
SUNSHINE MINING AND REFINING COMPANY
FIRST: The name of the Corporation is Sunshine Mining and Refining
Company.
SECOND: The registered office of the Corporation in the state of Delaware
is located at 1013 Centre Road in the City of Wilmington, County of New Castle.
The name and address of its registered agent is Corporation Service Company,
1013 Centre Road, Wilmington, Delaware 19805.
THIRD: The nature of the business, objects and purposes to be transacted,
promoted or carried on by the Corporation are as follows:
To engage in and carry on the business of exploring for, developing
and utilizing natural resources of every kind and description; to explore
for, to develop and to mine, mill, concentrate, convert, smelt, treat,
refined, prepare for market, manufacture, buy, sell, exchange, and
otherwise to produce, process and deal in natural resources of every kind
and description, including without limitation, ores, metals, minerals,
oil, natural gas, timber, water, and all other natural products and the
products and by-products thereof of every kind and description and by
whatever means the same can be and may hereafter be bought, sold,
conveyed, transferred, produced, processed, handled or otherwise dealt in;
to buy, sell, exchange, lease, acquire and otherwise deal in real
property, mines, mineral rights and claims of any nature whatsoever,
timber rights, and interests of any nature whatsoever in oil and gas; to
own, lease, hire, rent, as lessee or lessor, operate and manage all types
of real property, buildings and fixtures, and the machinery, equipment and
other personal property and facilities necessary to the conduct, operation
and management of such business and all other activity in connection
therewith;
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of,
trade, deal in and with goods, wares and merchandise and personal property
of every class and description;
To acquire, and pay for in cash, stock, or bonds of this Corporation
or otherwise, the goodwill, rights, assets and property, and to undertake
or assume the whole or any part of the obligations or liabilities of any
person, partnership, trust, joint stock company, syndicate, firm,
association or corporation;
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States
or any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights, trademarks and trade
names, relating to or useful in connection with any business of this
Corporation;
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, sell, assign, exchange, transfer, mortgage, pledge or otherwise
dispose of or deal in and with any of the shares of the capital stock, or
any voting trust certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust receipts and
other securities, obligations, chooses in action and evidences of
indebtedness or interest issued or created by any corporations, joint
stock companies, syndicates, associations, firms, trusts or persons,
public or private, or by the government of the United States of America,
or by any foreign government, or by any state, territory, province
municipality or other political subdivision or by any governmental agency,
and as owner thereof to possess and exercise all rights, powers and
privileges of ownership, including the right to execute consents and vote
thereon, and to do any and all acts and things necessary or advisable for
the preservation, protection, improvement and enhancement in value
thereof;
To borrow or raise moneys for any of the purposes of the Corporation
and, from time to time without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the payment of
any thereof and of the interest thereon by mortgage upon or pledge,
conveyance or assignment in trust of the whole or any part of the property
of the Corporation, whether at the time owned or thereafter acquired, and
to sell, pledge or otherwise dispose of such bonds or other obligations of
the Corporation for its corporate purposes;
To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use
and otherwise deal in and with, real or personal property, or any interest
therein, wherever situated, and to sell, convey, lease, exchange, transfer
or otherwise dispose of, or mortgage or pledge, all or any of the
Corporation's property and assets, or any interest therein, wherever
situated; and
CERTIFICATE OF INCORPORATION - 1
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To engage in any lawful act or activities for which corporations may
be organized under the General Corporation Law of Delaware.
The business and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference to,
or inference from, the terms of any other clause in this Certificate of
Incorporation, but the business and purposes specified in each of the foregoing
clauses of this Article shall be regarded as independent business and purposes.
FOURTH: The total number of shares which the Corporation shall have
authority to issue is Six Hundred Twenty Million (620,000,000), of which stock
Six Hundred Million (600,000,000) shares of the par value of $0.01 each shall
be designated Common Stock and of which Twenty Million (20,000,000) shares of
the par value of $1.00 each shall be designated Preferred Stock.
Section 1. Power of Board to Issue Preferred Stock. Shares of Preferred
Stock may be issued from time to time in one or more series, each of such
series to have distinctive serial designations, which may be by distinguishing
number, letter or title, as shall hereafter be determined in the resolution or
resolutions providing for the issue of such Preferred Stock from time to time
adopted by the Board of Directors of the Company at a regularly called meeting
without dissenting vote, pursuant to authority so to do which is hereby
conferred upon and vested in the Board of Directors.
Section 2. Terms of Preferred Stock. Each series of Preferred Stock (i)
may have such number of shares; (ii) may have such voting powers, including,
without limitation, the right to vote as a class in connection with a Business
Combination (as defined in Article Fifth), full or limited, or may be without
voting powers; (iii) may be subject to redemption at such time or times and at
such price or prices; (iv) may be entitled to receive dividends, which may be
cumulative or noncumulative, at such rate or rates, on such conditions, from
such date or dates, and at such times, and payable in preference to, or in such
relation to, the dividends payable on any other class or classes or series of
stock; (v) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation; (vi) may be convertible into,
or exchangeable for, shares of any other class or classes of stock of the
Corporation at such price or prices or at such rates of exchange, and with such
adjustments; (vii) may be entitled to the benefit of a sinking fund or purchase
fund to be applied to the purchase or redemption of shares of such series in
such amount or amounts; (viii) may be entitled to the benefit of conditions and
restrictions upon the creation of indebtedness of the Corporation or any
subsidiary, upon the issue of any additional stock (including, without
limitation, additional shares of such series or of any other series) and upon
the payment of dividends or the making of other distributions on and the
purchase redemption or other acquisition by the Corporation or any subsidiary
of any outstanding stock of the Corporation; and (ix) may have such other
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof; all as shall be stated in said resolution
or resolutions adopted by the Board of Directors providing for the issue of
such Preferred Stock. Except where otherwise set forth in the resolution or
resolutions adopted by the Board of Directors providing for the issue of any
series of Preferred Stock, the number of shares comprising such series may be
increased or decreased (but not below the number of share then outstanding)
from time to time by like action of the Board of Directors.
Section 3. Redemption or Purchase of Preferred Stock. Shares of any series
of Preferred Stock which have been redeemed (whether through the operation of a
sinking fund or otherwise) or purchased by the Corporation, or of which, if
convertible or exchangeable, have been converted into or exchanged for shares
of stock of any other class or classes, shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as a part of the series
of which they were originally a part or may be reclassified and reissued as
part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors or as part of any other series of
Preferred Stock, all subject to the conditions or restrictions on issuance set
forth in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of Preferred Stock and to any filing
required by law.
Section 4. Voting Rights. Except as otherwise provided by law or by the
resolution or resolutions adopted by the Board of Directors providing for the
issue of any series of Preferred Stock, the Common Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes, each holder of the Common Stock being entitled to one vote for each
share held.
Section 5. Dividends. Subject to all the rights of the Preferred Stock or
any series thereof, the holders of the Common Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out of funds
legally available therefor, dividends payable in cash, stock or otherwise.
Section 6. Liquidation. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, and after the holders of the
Preferred Stock of each series shall have been paid in full the amounts to
which they respectively shall be entitled, or a sum sufficient for such
payments in full shall have been set aside, the remaining net assets of the
Corporation shall be distributed pro rata to the holders of the Common Stock in
accordance with their respective rights in interest, to the exclusion of the
holders of the Preferred Stock.
FIFTH: Vote Required to Approve Business Combinations. In addition to the
vote of stockholders otherwise required by law or by the terms of any other
Article of this Certificate of Incorporation, the affirmative vote or consent
of the holders of a majority of all shares of outstanding stock entitled to
vote thereon, and a majority of each series or class of Preferred Stock which
under this Certificate of Incorporation or by the resolution or resolutions of
the Board of Directors authorizing the issuance of such Preferred Stock is
entitled to vote thereon
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as a class, shall be required to approve any Business Combination. As used in
this Article Fifth, the term "Business Combination" shall include any merger or
consolidation of the Corporation with or into any other corporation, firm or
entity which under the applicable provisions of Delaware law is required to be
submitted to a vote of stockholders, or the sale, lease, exchange or other
disposition (including, without limitation, any disposition in connection with
any dissolution, liquidation or winding up of the Corporation) of all or
substantially all of the property and assets of the Corporation (including its
good will and corporate franchises) to any other corporation, firm or entity.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers conferred by
statute, the power to adopt, amend or repeal the bylaws of the Corporation is
hereby conferred upon and vested in the Board of Directors.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the state of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provision of section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
NINTH: Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of this Corporation may be kept
(subject to any provision contained in the statutes) 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 Corporation. Elections of directors
need not be by written ballot unless the bylaws of the Corporation shall so
provide.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation; provided, however,
that no amendment to this Certificate of Incorporation shall, directly or
indirectly, amend, alter, change or repeal any of the provisions of Article
Fourth, Section 1 or any of the provisions of Article Fifth, unless the
amendment effecting such amendment, alteration, change or repeal shall receive
the affirmative vote or consent of the holders of (i) 66 2/3% of the
outstanding stock of the Corporation entitled to vote thereon, and (ii) 66 2/3%
of each class or series of Preferred Stock which under this Certification of
Incorporation or by the resolution or resolutions of the Board of Directors
authorizing the issuance of such class of Preferred Stock is entitled to vote
thereon as a separate class.
ELEVENTH: The name and mailing address of the incorporator is as follows:
Name Mailing Address
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Rebecca L. Saunders 877 W. Main St., Suite 600
Boise, ID 83702
TWELFTH: To the fullest extent permitted by the Delaware General
Corporation Law, as it now exists or may hereafter be amended, a director of
the Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, 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 of the
Corporation existing at the time of such repeal or modification.
THIRTEENTH: Any director may be removed, with or without cause, by a vote
of the holders of a majority of the shares then entitled to vote thereon.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 25th day of October, 1995.
/s/ Rebecca L. Saunders
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Rebecca L. Saunders, Incorporator
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