ARTICLES OF INCORPORATION
OF
KINAM MERGER CORP.
[To be changed to Kinam Gold Inc.
on completion of change of domicile merger]
I, the undersigned natural person of the age of 21 or more, acting as
incorporator of a corporation under the Revised Statutes of Nevada (the
"Statutes"), adopt the following articles of incorporation for such corporation:
ARTICLE 1
The name of the corporation is Kinam Merger Corp. (hereinafter, the
"Corporation").
ARTICLE 2
The address of the Corporation's initial resident office is 6100 Neil
Road, Suite 500, Reno, Nevada 89511. The name of its initial resident agent at
such address is The Corporation Trust Company of Nevada.
ARTICLE 3
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Statutes.
ARTICLE 4
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is two hundred ten million
(210,000,000), of which ten million (10,000,000) shares shall be shares of
Preferred Stock (hereinafter referred to as the "Preferred Stock"), par value of
one dollar ($1.00) per share, and two hundred million (200,000,000) shares shall
be shares of Common Stock (hereinafter referred to as the "Common Stock"), par
value of one cent ($0.01) per share.
A statement of the designations of the authorized classes of Preferred
Stock or of any series thereof, and the powers, preferences, and relative,
participating, optional, or other special rights, and qualifications,
limitations, or restrictions thereof, or of the authority of the Board of
Directors to fix by resolution or resolutions such designations and other terms
not fixed by these Articles of Incorporation, is as follows:
A. Preferred Stock.
(1) The Preferred Stock may be issued in one or more series,
from time to time, with each such series to have 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 in accordance with the provisions hereof, the Board of
Directors being hereby expressly vested with authority to adopt any
such resolution or resolutions. The authority of the Board of Directors
with respect to each such series shall include, but not be limited to,
the determination or fixing of the following:
(a) The distinctive designation and number of shares
comprising such series, which number may (except where
otherwise provided by the Board of Directors in creating such
series) be increased or decreased (but not below the number of
shares then outstanding) from time to time by like action of
the Board of Directors;
(b) The dividend rate of such series (which may be a
floating or fixed rate or rates and which may be determined by
formula or formulas), the conditions and times upon which such
dividends shall be payable, the relation which such dividends
shall bear to the dividends payable on any other class or
classes of stock or series thereof, or any other series of the
same class, and whether dividends shall be cumulative or
non-cumulative;
(c) The conditions upon which the shares of such
series shall be subject to redemption by the Corporation and
the times, prices, and other terms and provision upon which
the shares of the series may be redeemed;
(d) Whether or not the shares of the series shall be
subject to the operation of a retirement or sinking fund to be
applied to the purchase or redemption of such shares and, if
such retirement or sinking fund be established, the annual
amount thereof and the terms and provisions relative to the
operation thereof;
(e) Whether or not the shares of the series shall be
convertible into or exchangeable for shares of any other class
or classes, with or without par value, or of any other series
of the same class, and, if provision is made for conversion or
exchange, the times, prices, rates, adjustments, and other
terms and conditions of such conversion or exchange;
(f) Whether or not the shares of the series shall
have voting rights, in addition to the voting rights provided
by law, and, if so, the terms of such voting rights;
(g) The rights of the shares of the series in the
event of voluntary or involuntary liquidation, dissolution, or
upon the distribution of assets of the Corporation; and
(h) Any other powers, preferences, and relative,
participating, optional, or other special rights, and
qualifications, limitations, or restrictions thereof, of the
shares of such series, as the Board of Directors may deem
advisable and as shall not be inconsistent with the provisions
of these Articles of Incorporation.
(2) The holders of shares of the Preferred Stock of each
series shall be entitled to receive, when and as declared by the Board
of Directors, out of funds legally available for the payment of
dividends, dividends at the rate or rates fixed by the Board of
Directors for such series, or determined in the manner prescribed in
the resolution or resolutions by the Board of Directors creating such
series, and no more, before any dividends, other than dividends payable
in Common Stock, shall be declared and paid, or set apart for payment,
on the Common Stock with respect to the same dividend period.
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(3) Whenever, at any time, dividends on the then outstanding
Preferred Stock as may be required with respect to any series
outstanding shall have been paid or declared and set apart for payment
on the then outstanding Preferred Stock, and after complying with
respect to any retirement or sinking fund or funds for any series of
Preferred Stock, the Board of Directors may, subject to the provisions
of the resolution or resolutions creating any series of Preferred
Stock, declare and pay dividends on the Common Stock, and the holders
of shares of the Preferred Stock shall not be entitled to share
therein.
(4) The holders of shares of the Preferred Stock of each
series shall be entitled upon liquidation or dissolution or upon the
distribution of the assets of the Corporation to such preferences as
provided in the resolution or resolutions creating such series of
Preferred Stock, and no more, before any distribution of the assets of
the Corporation shall be made to the holders of shares of the Common
Stock. Whenever the holders of shares of the Preferred Stock shall have
been paid in full amounts to which they shall be entitled, the holders
of shares of the Common Stock shall be entitled to share ratably in all
assets of the Corporation then remaining.
B. Common Stock.
(1) At all meetings of the stockholders of the Corporation,
the holders of shares of the Common Stock shall be entitled to one vote
for each share of Common Stock held by them. Except as otherwise
provided by a resolution or resolutions of the Board of Directors
creating any series of Preferred Stock or by the Statutes, the holders
of shares of the Common Stock issued and outstanding shall have and
possess the exclusive right to notice of stockholders' meeting and the
exclusive power to vote.
C. $3.75 Series B Convertible Preferred Stock. A series of the
Preferred Stock, par value $1.00 per share, of the Corporation is hereby
created, consisting of 1,840,000 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 "$3.75 Series B Convertible Preferred Stock"
(hereinafter referred to as the "Series B Convertible Preferred
Stock"). Each share of Series B Convertible Preferred Stock shall be
identical in all respects with the other shares of Series B Convertible
Preferred Stock.
All shares of Series B 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.
(2) Dividends. The holders of shares of Series B 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 therefore, dividends at the annual rate of $3.75 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 August 15, November 15,
February 15, and May 15 of each year (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
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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.
Dividends shall initially accrue on the Series B Convertible Preferred
Stock beginning with the quarterly payment due August 15, 2000. 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 Series B 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 Series B Convertible Preferred Stock 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
Series B 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 Series B Convertible
Preferred Stock.
On each Dividend Payment Date, all dividends which shall have
accrued on each share of Series B 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 Series B 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 to any dividend payment or payments which are past
due. Dividends paid on shares of Series B 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.
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 Series B Convertible Preferred Stock (the
"Junior Dividend Stock") unless and until all accrued and unpaid
dividends on the Series B 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
Series B 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 Series B Convertible
Preferred Stock (the "Parity Dividend Stock"), for any period unless
full cumulative dividends have been, or contemporaneously are, paid or
declared and set apart for such payment on the Series B 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
Series B 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
Series B Convertible Preferred Stock and the Parity Dividend Stock, all
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dividends paid or declared and set apart for payment upon shares of
Series B 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 Series B 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 Series B
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. 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 Series B 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 Series B 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
Series B 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 Series B
Convertible Preferred Stock (the "Parity Liquidation Stock"), the
holders of the Series B 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 Series B 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 Series B 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
Series B Convertible Preferred Stock, and (ii) transfer instrument(s)
satisfactory to the Corporation and sufficient to transfer such shares
of Series B 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.
5
(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 Series
B Convertible Preferred Stock, in whole or from time to time
in part, on any date on or after May 17, 2001, 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 August 15, of the year indicated:
Years Price Per Share
-------------------- -----------------
2000 $51.500
2001 $51.125
2002 $50.750
2003 $50.375
2004 and thereafter $50.000
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 Series B Convertible Preferred Stock, the
shares of Series B 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 foregoing, the
Corporation shall not redeem less than all of the Series B
Convertible Preferred Stock at any time outstanding until all
dividends accrued and in arrears upon all Series B 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 Series B 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 Series B
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 Series B 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
Series B Convertible Preferred Stock to be redeemed; (5) that
on and after the redemption date, dividends will cease to
accrue on such shares; and (6) 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 Series B 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
6
of the proceedings of the redemption of any other shares of
Series B Convertible Preferred Stock. On or after the date
fixed for redemption as stated in such notice, each holder of
the shares of Series B 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 irrevocably 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 dividend 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
Series B 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 therefore) shall terminate.
Any cash necessary for the redemption of shares of Series B
Convertible Preferred Stock shall be deemed to be available
therefore 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 Series B 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
Series B 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.
The holder of any shares of Series B 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 Series
B Convertible Preferred Stock redeemed and (ii) transfer
instruments satisfactory to the Corporation and sufficient to
transfer such shares of Series B Convertible Preferred Stock
to the Corporation free of any adverse interest. No interest
shall accrue on the Redemption Price of any share of Series B
Convertible Preferred Stock after its redemption date.
In the event that any shares of Series B Convertible
Preferred Stock shall be converted into shares of the Common
Stock (the "Kinross Stock") of Kinross Gold Corporation, a
Canadian corporation ("Kinross"), 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 Series
B Convertible Preferred Stock shall be returned to the
Corporation immediately after such conversion (subject to
declared dividends payable to holders of shares of Series B
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).
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(c) Cash Payments in Lieu of Fractional Shares. No
fractional shares of Series B Convertible Preferred Stock
shall be issued upon any redemption of Series B 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 Series B Convertible Preferred Stock as determined
in good faith by the Corporation's Board of Directors.
(5) Conversion.
(a) Right of Conversion. Subject to and upon
compliance with the provisions of this Section 5, each share
of Series B 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 nonassessable shares of Kinross 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
multiplying the result by .8004. The certificate representing
such share so to be converted must be surrendered 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 Series B 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 Series B
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 Series B 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 Kinross Stock which shall be
issuable on such conversion shall be issued. Each share of
Series B 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
Series B 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 Series B 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 Kinross Stock issuable upon
the conversion of such shares of Series B 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 Kinross 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 Series B
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 Kinross Stock shall
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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 Series B Convertible Preferred Stock
shall have been surrendered and such notice received by the
Corporation.
Any shares of Series B Convertible Preferred Stock
surrendered by 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 Payment Date
(unless such shares of Series B 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 Series B
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
Kinross Stock shall be issued upon conversion of Series B
Convertible Preferred Stock. If more than one share of Series
B Convertible Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full
shares of Kinross 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 Kinross Stock which would otherwise be
deliverable upon the conversion of any share of Series B
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
Kinross Stock as calculated for the ten day trading period
ending on the fifth trading day prior to the day of conversion
multiplied by the fractional interests in a share of Kinross
Stock that otherwise would have been deliverable upon
conversion of such share.
(d) Adjustment of Conversion Price. The "Conversion
Price" shall mean and be $8.25, subject to adjustment from
time to time by the Corporation as follows:
(i) In case Kinross shall (A) pay a dividend
or make a distribution on the Kinross Stock in shares
of Kinross Stock (other than pursuant to a dividend
reinvestment or similar plan), (B) subdivide the
outstanding shares of Kinross Stock into a greater
number of shares, (C) combine the outstanding shares
of Kinross Stock into a smaller number of shares, or
(D) issue by reclassification of the Kinross Stock
any shares of capital stock of Kinross, 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 Series B Convertible Preferred
Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of Kinross
Stock 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
9
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 Kinross shall issue rights,
options, or warrants to all holders of the
outstanding shares of Kinross Stock entitling them to
subscribe for or purchase shares of Kinross 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 Kinross Stock (other
than pursuant to any stock option, restricted stock,
or other incentive or benefit plan or stock ownership
or purchase plan for the benefit of employees,
directors, or officers or any dividend reinvestment
plan of Kinross 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
Kinross 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 Kinross 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 Kinross 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 Kinross 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 Kinross Stock actually delivered upon the exercise
of such rights, options, or warrants rather than upon
the number of shares of Kinross Stock offered for
subscription or purchase. In determining whether any
rights, options, or warrants entitled the holders to
subscribe for or purchase shares of Kinross Stock at
less than such current market price, and in
determining the aggregate offering price of such
shares of Kinross Stock, there shall be taken into
account any consideration received by Kinross 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
Kinross (whose reasonable determination shall be
conclusive, except for arithmetic errors, and shall
be described in a statement filed by Kinross with its
stock transfer agent).
(iii) In case Kinross shall, by dividend or
otherwise, distribute to all holders of the
outstanding Kinross Stock, evidences of its
indebtedness or assets (including securities and
cash, but excluding any cash dividend of Kinross 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 Kinross (excluding
those referred to in subsection (ii) of this Section
5(d)), then in each such case, the Conversion Price
10
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 Kinross 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
Kinross, whose reasonable determination shall be
conclusive, except for arithmetic errors, and shall
be described in a statement filed by Kinross with its
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
Kinross Stock or of such subscription rights,
options, or warrants applicable to one share of
Kinross Stock, and of which the denominator shall be
such current market price per share of Kinross 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 Kinross
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 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 Kinross Stock is then listed
or admitted for trading.
(v) In any case in which this Section 5(d)
shall require that any adjustment be made immediately
following a record date or an effective date, the
Corporation may elect to defer (but only until the
filing by Kinross with its stock transfer agent of
the certificate required by subsection (vii) of this
Section 5(d)) issuing to the holder of any share of
Series B Convertible Preferred Stock converted after
such record date or effective date the shares of
Kinross Stock issuable upon such conversion over and
above the shares of Kinross 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
11
determine to be advisable in order that any stock
dividend, subdivision of shares, distribution or
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 Kinross Stock, or
any securities convertible into or exchangeable for
Kinross 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 its 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 Series B 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 Series
B 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
Series B Convertible Preferred Stock thereafter
surrendered for conversion shall become entitled to
receive any shares other than shares of Kinross
Stock, thereafter the Conversion Price of such other
shares so receivable upon conversion of any share of
Series B 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 Kinross 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 Series B Convertible Preferred
Stock a notice of the decrease at least 15 days
before the date the 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) Kinross shall authorize the granting to
the holders of the Kinross 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
12
(iii) there shall be any reorganization or
reclassification of the Kinross Stock (other than a
subdivision or combination of the outstanding Kinross
Stock and other than a change in the par value of the
Kinross Stock), or any consolidation or merger to
which Kinross is a party or any statutory exchange of
securities with another corporation and for which
approval of any stockholders of Kinross is required,
or any sale, lease, or transfer of all or
substantially all of the assets of Kinross; 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 Series B Convertible Preferred Stock
and its 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
Kinross 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 Kinross Stock of record shall be
entitled to exchange their shares of Kinross 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) 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 Kinross
Stock upon conversion of shares of Series B 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 Kinross Stock in a name
other than that of the holder of the shares of Series B 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.
(g) Consolidation or Merger or Sale of Assets. Notwithstanding
any other provision herein to the contrary, in case of any
consolidation or merger to which Kinross is a party (other than a
merger or consolidation in which Kinross is the continuing
corporation), or in case of any sale, lease, or transfer to another
corporation of the property of Kinross 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 of 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 Series B 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 Kinross Stock into which such share of Series B
13
Convertible Preferred Stock might have been converted immediately prior
to such consolidation, merger, sale, lease, or transfer assuming such
holder of Kinross 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 Kinross 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(g), the
kind and amount of securities, cash, or other property receivable upon
such consolidation, merger, sale, lease, or transfer for each
non-electing 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(g) 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 Series B Convertible Preferred Stock.
The above provisions of this Section 5(g) shall similarly
apply to successive consolidations, mergers, sales, leases, or
transfers.
(h) Covenant as to Kinross Stock. The Corporation covenants
that all shares of Kinross Stock which may be delivered upon
conversions of shares of Series B 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.
(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
Convertible 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
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) 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.
14
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 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 these Articles 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 these
Articles 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 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.
(7) Outstanding Shares. For purposes of these Articles of
Incorporation, all shares of Series B Convertible Preferred Stock shall be
deemed outstanding except (i) from the date fixed for redemption pursuant to
Section 4, all shares of Series B 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 Series B Convertible Preferred Stock, all
shares of Series B Convertible Preferred Stock converted into Kinross Stock; and
(iii) from the date of registration of transfer, all shares of Series B
Convertible Preferred Stock held of record by the Corporation or any subsidiary
of the Corporation.
(8) No Other Rights and Powers. The shares of Series B Convertible
Preferred Stock shall not have any relative, participating, optional, or other
special rights and powers other than as set forth herein.
15
(9) Preemptive Rights. The Series B Convertible Preferred Stock is not
entitled to any preemptive or subscription rights in respect of any securities
of the Corporation.
(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 changes as
shall be necessary to render the provision in question effective and valid under
applicable law.
ARTICLE 5
The governing board of this Corporation shall be known as directors.
The number of directors constituting the initial Board of Directors is one (1);
thereafter, the number of directors shall be determined by the Bylaws. The name
and address of the initial director who is to serve as such until the first
annual meeting of shareholders, or until his successor is elected and has
qualified, subject, however, to prior death, resignation, retirement,
disqualification, or removal from office is:
Arthur H. Ditto
57th Floor, Scotia Plaza
40 King Street West
Toronto, Ontario M3H 3Y2
Canada
ARTICLE 6
The Board of Directors of the Corporation is expressly authorized to
adopt, amend, or repeal the Bylaws of the Corporation.
ARTICLE 7
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 such exemption from liability or limitation
thereof is not permitted under the Statutes as currently in effect or as the
same may hereafter be amended.
No amendment, modification, or repeal of this Article 7 shall adversely
affect any right or protection of a director that exists at the time of such
amendment, modification, or repeal.
ARTICLE 8
The Corporation reserves the right at any time and from time to time to
amend, alter, change, or repeal any provision contained in these Articles of
Incorporation in the manner now or hereafter prescribed by law; and all rights,
preferences, and privileges of whatsoever nature conferred upon stockholders,
directors, or any other persons whomsoever by and pursuant to these Articles of
Incorporation in their present form or as hereafter amended are granted subject
to the rights reserved in this Article 8.
16
ARTICLE 9
The Corporation elects not to be governed by Sections 78.411 to 78.444
of the Nevada Revised Statutes.
ARTICLE 10
The name and address of the incorporator signing these Articles of
Incorporation is as follows:
Arthur H. Ditto
57th Floor, Scotia Plaza
40 King Street West
Toronto, Ontario M3H 3Y2
Canada
_________________________________
Arthur H. Ditto, Incorporator
17
CERTIFICATE OF ACCEPTANCE OF APPOINTMENT OF RESIDENT AGENT
The Corporation Trust Company of Nevada hereby accepts appointment as
Resident Agent for the above-named corporation.
The Corporation Trust Company of Nevada
By:_____________________________________
Date:___________________________________
18
PLAN OF MERGER
THIS PLAN OF MERGER (this "Plan") is entered into as of the 29th day of
May, 2001, by and between Kinam Merger Corp., a Nevada corporation ("Kinam
Merger"), and Kinam Gold Inc., a Delaware corporation ("Kinam Gold").
Recitals:
A. Kinam Merger is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Nevada. Its address is 52nd
Floor, Scotia Plaza, 40 King Street West, Toronto, Ontario M5H 3Y2 and its
governing law is the Nevada Revised Statutes (the "Nevada Statutes")
B. Kinam Gold is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware. Its address is 52nd
Floor, Scotia Plaza, 40 King Street West, Toronto, Ontario M5H 3Y2 and its
governing law is the Delaware General Corporation Law (the "Delaware Law").
C. The respective Boards of Directors of Kinam Merger and Kinam Gold
deem it advisable for the mutual benefit of each of Kinam Merger and Kinam Gold
that Kinam Gold be merged with and into Kinam Merger (the "Merger") upon the
terms and subject to the conditions set forth herein and in accordance with the
Delaware Law and the Nevada Statutes.
D. Kinam Merger and Kinam Gold and the Boards of Directors of Kinam
Merger and Kinam Gold have recommended, and the respective shareholders of the
entities have approved, adoption of this Plan.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the parties hereto agree as follows:
1. The Merger. At the Effective Time (as hereinafter defined), Kinam
Gold shall be merged with and into Kinam Merger in accordance with the Delaware
Law and the Nevada Statutes, and the separate corporate existence of Kinam Gold
and Kinam Merger shall cease. (Kinam Gold and Kinam Merger are sometimes
referred to herein as the "Constituent Corporations," and Kinam Merger, in its
capacity as the corporation surviving the Merger, is sometimes referred to
herein as the "Surviving Corporation.")
2. Effective Time. The Merger shall become effective in Delaware and in
Nevada on May 29, 2001 (the "Effective Time").
3. Effect of the Merger. The Merger shall have the effects set forth in
the Delaware Law and the Nevada Statutes.
1
4. Articles of Incorporation.
(a) The Articles of Incorporation of Kinam Merger, as in effect
immediately prior to the Effective Time, shall, except as amended as hereinafter
provided, be the Articles of Incorporation of the Surviving Corporation at the
Effective Time and shall thereafter continue to be its Articles of Incorporation
until amended as provided therein and under applicable law.
(b) Article I of the Articles of Incorporation of Kinam Merger shall be
hereby amended effective as of the Effective Time to read in its entirety as
follows:
ARTICLE I - NAME
The name of this corporation is KINAM GOLD INC. (hereinafter the
"Corporation").
5. Bylaws. The Bylaws of Kinam Merger as in effect immediately prior to
the Effective Time shall continue in full force and effect as the Bylaws of the
Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
6. Directors and Officers.
(a) The directors of Kinam Gold immediately prior to the Effective Time
shall be the directors of the Surviving Corporation until their successors have
been elected and qualified or until otherwise provided by law, the Articles of
Incorporation of the Surviving Corporation or the Bylaws of the Surviving
Corporation.
(b) The officers of Kinam Gold immediately prior to the Effective Time
shall be the officers of the Surviving Corporation until their successors shall
have been elected and qualified or until otherwise provided by law, the Articles
of Incorporation of the Surviving Corporation, or the Bylaws of the Surviving
Corporation.
7. Manner of Conversion.
Capital Stock. At the Effective Time of the Merger, by virtue of the
Merger and without any action on the part of Kinam Merger, Kinam Gold, the
holders of any of the outstanding shares of Kinam Merger or Kinam Gold or any
other person or entity, each issued and outstanding share of Common Stock of
Kinam Gold shall be converted into one (1) share of Common Stock of Kinam
Merger. In addition, at the Effective Time of the Merger, by virtue of the
Merger and without any action on the part of Kinam Merger, Kinam Gold, the
holders of any of the outstanding shares of Kinam Merger or Kinam Gold or any
other person or entity, each issued and outstanding share of $3.75 Series B
Convertible Preferred Stock of Kinam Gold shall be converted into one (1) share
of $3.75 Series B Convertible Preferred Stock of Kinam Merger. All shares of
Common Stock of Kinam Merger outstanding prior to the Effective Time of the
2
Merger shall cease to exist and all certificates representing such shares shall
be canceled by virtue of the Merger.
8. Termination or Abandonment. This Plan may be terminated and
the Merger abandoned at any time prior to the Effective Time by the mutual
written consent of the respective Boards of Directors of the Constituent
Corporations. In the event of termination of this Plan as herein provided, Kinam
Gold, Kinam Merger and their respective Boards of Directors and shareholders
shall not be liable to each other or the directors or shareholders of each
other.
9. Governing Law. This Plan shall be governed in all respects by the
laws of the State of Nevada.
10. Counterpart Signature Pages. This Plan may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
(Remainder of page is blank)
3
IN WITNESS WHEREOF, the parties have executed this Plan by their duly
authorized officers as of the date first above written.
KINAM MERGER CORP., a Nevada corporation
By: ______________________________
Arthur H. Ditto, President
______________________________
Shelley M. Riley, Secretary
KINAM GOLD INC., a Delaware corporation
By: ______________________________
Arthur H. Ditto, President
______________________________
Shelley M. Riley, Secretary
4
ARTICLES OF MERGER
OF
KINAM GOLD INC.
WITH AND INTO
KINAM MERGER CORP.
Pursuant to the provisions of Title 8, Section 252(c) of the Delaware
General Corporation Law (the "Delaware Law") and Section 92A.200 of the Nevada
Revised Statutes (the "Nevada Statutes"), the undersigned corporations execute
the following Articles of Merger:
FIRST: The name of the surviving corporation is Kinam Merger Corp., a Nevada
corporation ("Kinam Merger"), and the name of the corporation being merged into
Kinam Merger is Kinam Gold Inc., a Delaware corporation ("Kinam Gold").
SECOND: A Plan of Merger (the "Plan"), a copy of which is attached hereto, which
sets forth the terms of the merger of Kinam Gold with and into Kinam Merger (the
"Merger"), has been approved, adopted, certified, executed, and acknowledged by
each of Kinam Gold and Kinam Merger in accordance with the requirements of
subsection (c) of Section 252 of the Delaware Law and Section 92A.100, et seq.,
of the Nevada Statutes.
THIRD: The Plan was submitted to the sole shareholder of Kinam Merger in
accordance with the Nevada Statutes. The designation and number of votes
entitled to be cast by each class of owner's interests in Kinam Merger entitled
to vote separately on the plan was 100 shares of common stock. All such shares
were voted in favor of the Plan. No votes were cast against the Plan or
abstained from voting. The number of votes cast for the plan by the owners of
each class of interests was sufficient for approval by the sole shareholder of
Kinam Merger.
FOURTH: The Plan was submitted to the shareholders of Kinam Gold in accordance
with the Delaware Law. The designation and number of votes entitled to be cast
by each class of owner's interests in Kinam Gold entitled to vote separately on
the plan was 94,789,988 votes, of which 92,213,988 were entitled to be cast by
the holder of shares of the common stock of Kinam Gold and 2,576,000 votes were
entitled to be cast by the holders of shares of the $3.75 Series B Convertible
Preferred Stock of Kinam Gold. The total number of votes cast for the Plan by
the owners of each class of interests in Kinam Gold entitled to vote separately
on the Plan was 92,213,988, all of which were votes cast by the owner of the
shares of the common stock of Kinam Gold. No votes were cast by the owners of
shares of the $3.75 Series B Convertible Preferred Stock of Kinam Gold. No votes
were cast against the Plan and no votes abstained. The number of votes cast for
the Plan was sufficient for approval by the shareholders of Kinam Gold.
FIFTH: (a) The Articles of Incorporation of Kinam Merger, as in effect
immediately prior to the Effective Time, shall, except as amended as hereinafter
provided, be the Articles of
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Incorporation of the surviving corporation at the Effective Time and shall
thereafter continue to be its Articles of Incorporation until amended as
provided therein and under applicable law.
(b) Article I of the Articles of Incorporation of Kinam Merger shall be
hereby amended effective as of the Effective Time to read as follows:
ARTICLE I - NAME
The name of this corporation is KINAM GOLD INC. (hereinafter the
"Corporation").
SIXTH: The merger is to become effective in Delaware and in Nevada on May 29,
2001 (the "Effective Time").
SEVENTH: Kinam Merger hereby agrees that it may be served with process in the
State of Delaware in any proceeding for enforcement of any obligation of Kinam
Gold, as well as for enforcement of any obligation of either Kinam Merger or
Kinam Gold arising from the Merger, including any suit or other proceeding to
enforce the right of any stockholders as determined in appraisal proceedings
pursuant to the provisions of Section 262 of the Delaware Law. Kinam Merger
hereby irrevocably appoints the Secretary of State of the State of Delaware as
its agent to accept service of process in any such suit or other proceedings.
The Secretary of State of the State of Delaware may mail a copy of such process
to Kinam Merger at the following address: 52nd Floor, Scotia Plaza, 40 King
Street West, Toronto, Ontario M5H 3Y2 CANADA.
EIGHTH: Copies of process may be sent to Kinam Gold by the Nevada Secretary of
State at the following address: 52nd Floor, Scotia Plaza, 40 King Street West,
Toronto, Ontario M5H 3Y2 CANADA.
NINTH: These Articles of Merger may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Articles of Merger.
TENTH: These Articles of Merger and the Plan may, at any time prior to the
Effective Time, be amended or terminated by the mutual written consent of the
Boards of Directors of Kinam Merger and Kinam Gold, notwithstanding approval of
the Plan by the stockholders of Kinam Merger and Kinam Gold.
ELEVENTH: The Plan is on file at the office of the surviving corporation, Kinam
Merger, 52nd Floor, Scotia Plaza, 40 King Street West, Toronto, Ontario M5H 3Y2
CANADA. Copies of the Plan will be furnished by Kinam Merger, on request and
without cost, to any stockholder of either Kinam Gold or Kinam Merger.
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Dated: May ___, 2001.
KINAM GOLD INC., a Delaware
corporation
By: ______________________________
Arthur H. Ditto, President
______________________________
Shelley M. Riley, Secretary
KINAM MERGER CORP., a Nevada
corporation
By: ______________________________
Arthur H. Ditto, President
______________________________
Shelley M. Riley, Secretary
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