1
EXHIBIT 4.3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATIONS
OF
$3.75 SERIES B CONVERTIBLE PREFERRED STOCK
OF
AMAX GOLD INC.
Pursuant to Section 242 of the
Delaware General Corporation Law
The undersigned duly authorized officer of Amax Gold Inc., a corporation
organized and existing under the laws of the State of Delaware (the "Company"),
in accordance with the provisions of Section 242 of the General Corporation Law
of the State of Delaware (the "DGCL") does hereby certify:
WHEREAS, pursuant to the Authority conferred upon the Board of Directors
of the Company by the Certificate of Incorporation of the Company and pursuant
to Section 242 of the DGCL, said Board of Directors at a meeting on February 9,
1998 duly adopted a resolution setting forth the amendment to the Company's
Certificate of Designations of $3.75 Series B Convertible Preferred Stock set
forth below, declaring its advisability and directing that the amendment
proposed by submitted to the stockholders entitled to vote in respect thereof
for the consideration of such amendment; and
WHEREAS, pursuant to the provisions of Sections 228 and 242 of the DGCL,
stockholders of the Company acting by written consent, dated March 11, 1998,
duly adopted a resolution setting forth the amendment to the Company's
Certificate of Designations of $3.75 Series B Convertible Preferred Stock set
forth below.
NOW, THEREFORE, BE IT RESOLVED, that the Company's Certificate of
Designations of $3.75 Series B Convertible Preferred Stock be hereby amended by
deleting Section 6 thereof and replacing such section in its entirety with the
following:
(6) VOTING RIGHTS.
(a) GENERAL. The holders of Series B Convertible Preferred Stock shall
be entitled to 1.4 votes for each share of Series B Preferred Stock held of
record on each matter on which holders of the Common Stock or stockholders
generally are entitled to vote. Except as otherwise provided herein or by
applicable law, the holders of shares of Series B Convertible Preferred Stock
and the
2
holders of shares of Common Stock shall vote together as one class for the
election of directors of the Corporation and on all other matters submitted to a
vote of stockholders of the Corporation.
(b) ADDITIONAL VOTING RIGHTS. Whenever dividends on the Series B
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 Series B 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
Series B Convertible Preferred Stock to vote for such two additional directors
shall terminate when all accrued and unpaid dividends on the Series B
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 Series B
Convertible Preferred Stock and such Parity Dividend stock to vote for such two
additional directors.
The foregoing right of the holders of the Series B 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 Series B 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 Series B Convertible Preferred
Stock then outstanding, call a special meeting of the holders of the Series B
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 Series B 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 Series B 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
Series B Convertible Preferred Stock (unless the vote or consent of a greater
percentage is required by applicable law or the 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 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 Series B Convertible Preferred Stock, (ii)
authorize
2
3
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 Series B 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 Series B Convertible
Preferred Stock. A class vote on the part of the Series B 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 Series B 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 Series B Convertible Preferred Stock in respect
of the payment of dividends or upon liquidation, dissolution or winding up of
the Corporation.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of
Amendment to be executed this 29th day of May, 1998.
AMAX GOLD INC.
By: /s/ S. Scott Shellhaas
-----------------------
Name: S. Scott Shellhaas
Title: President and Chief Operating Officer
3