Exhibit 2.1
ARTICLES OF RESTATEMENT OF THE
ARTICLES OF INCORPORATION OF
CLIFTON MINING COMPANY
Pursuant to the provisions of Sections 10-16a-1006 and 16-10a-1007 of
the Utah Revised Business Corporation Act (the "Act"), the undersigned
corporation adopts the following amended and restated Articles of Incorporation
as of this date and hereby certifies as follows:
1. The name of the corporation is Clifton Mining Company.
2. These Articles of Restatement supersede the original Articles
of Incorporation and all amendments thereto.
3. This amendment and restatement of the Articles of
Incorporation was adopted by the shareholders of the
corporation at a shareholder meeting held on February 27,
2004.
4. The number of shares outstanding at the time of the record
date was 44,823,183 shares of common stock and 251,918 shares
of 1993 Series Preferred A Stock; and the number of shares
entitled to vote thereon was 44,823,183 shares of common stock
and 251,918 shares of 1993 Series Preferred A Stock. The only
classes of shares outstanding at the time of adoption were the
common stock and the 1993 Series Preferred A Stock and all of
said shares were entitled to vote on such amendment.
5. The number of shares of common stock and 1993 Series Preferred
A Stock, voting as a single voting group, to approve the
adoption of these Articles of Restatement was 31,917,703 and
123,334, respectively.
6. The Articles of Incorporation are hereby amended and restated
to read in their entirety as follows:
ARTICLE I
NAME
The name of this corporation is Clifton Mining Company.
ARTICLE II
PURPOSE
The Corporation is organized to engage in any lawful act or activity
for which a corporation may be organized under the Utah Revised Business
Corporation Act.
ARTICLE III
AUTHORIZED SHARES
1. The Corporation shall have the authority to issue 10,000,000 shares
of preferred stock, $0.001 par value and 70,000,000 shares of common stock,
$0.001 par value ("Common Stock"). Shares of any class of stock may be issued,
without shareholder action, from time to time in one or more series as may from
time to time be determined by the board of directors. The board of directors of
this Corporation is hereby expressly granted authority, without shareholder
action, and within the limits set forth in the Utah Revised Business Corporation
Act, to:
(i) designate in whole or in part, the preferences,
limitations, and relative rights, of any class of shares before the
issuance of any shares of that class;
(ii) create one or more series within a class of shares, fix
the number of shares of each such series, and designate, in whole or
part, the preferences, limitations, and relative rights of the series,
all before the issuance of any shares of that series;
(iii) alter or revoke the preferences, limitations, and
relative rights granted to or imposed upon any wholly unissued class of
shares or any wholly unissued series of any class of shares; or
(iv) increase or decrease the number of shares constituting
any series, the number of shares of which was originally fixed by the
board of directors, either before or after the issuance of shares of
the series; provided that, the number may not be decreased below the
number of shares of the series then outstanding, or increased above the
total number of authorized shares of the applicable class of shares
available for designation as a part of the series.
2. The allocation between the classes, or among the series of each
class, of unlimited voting rights and the right to receive the net assets of the
Corporation upon dissolution, shall be as designated by the board of directors.
All rights accruing to the outstanding shares of the Corporation not expressly
provided for to the contrary herein or in the Corporation's bylaws or in any
amendment hereto or thereto shall be vested in the Common Stock. Accordingly,
unless and until otherwise designated by the board of directors of the
Corporation, and subject to any superior rights as so designated, the Common
Stock shall have unlimited voting rights and be entitled to receive the net
assets of the Corporation upon dissolution.
3. Of the authorized preferred stock, TWO HUNDRED FIFTY ONE THOUSAND
NINE HUNDRED EIGHTEEN (251,918) shares shall are designated as 1993 Series
Preferred A Stock, par value $.001 (the "1993 Series Preferred A Stock").
(a) Liquidation
3.01 In the event of any voluntary or involuntary liquidation
(whether complete or partial), dissolution, or winding up of the Corporation,
the holders of the 1993 Series Preferred A Stock shall be entitled to be paid
out of the assets of the Corporation available for distribution to its
shareholders, whether from capital, surplus, or earnings, an amount in cash
equal to $3.00 per share plus all unpaid dividends, whether or not previously
'declared, accrued thereon to the date of final distribution. No distribution
shall be made on any common stock or other subsequent series of preferred stock
of the Corporation by reason of any voluntary or involuntary liquidation
(whether complete or partial), dissolution. or winding up of the Corporation
unless each holder of any 1993 Series Preferred A Stock shall have received all
amounts to which such holder shall be entitled under this subsection 3.01.
3.02 If on any liquidation (whether complete or partial),
dissolution, or winding up of the Corporation, the assets of the Corporation
available for distribution to holders of 1993 Series Preferred A Stock shall be
insufficient to pay the holders of outstanding 1993 Series Preferred A Stock the
full amounts to which they otherwise would be entitled under subsection 3.01,
the assets of the Corporation available for distribution to holders of 1993
Series Preferred A Stock shall be distributed to them pro rata on the basis of
the number of shares of 1993 Series Preferred A Stock held by each such holder.
(b) Voting Rights
3.03 The 1993 Series Preferred A Stock shall be voted with the
Common Stock as a single class and shall not be entitled to vote as a separate
class, except to the extent that the consent of the holders of the 1993 Series
Preferred A Stock, voting as a class, is specifically required by the provisions
of the corporation laws of the state of Utah, as now existing or as hereafter
amended. Each holder of 1993 Series Preferred A Stock shall be entitled to such
number of votes in respect of each share of such stock held by him or her that
would be appurtenant to the Common Stock issuable upon conversion in respect of
such stock.
(c) Dividends
3.04 Dividends may be paid on the outstanding shares of common
and 1993 Series Preferred A Stock as and when declared by the board of
directors, out of funds legally available therefor. For purposes of the
declaration and payment of dividends, the Common Stock and the 1993 Series
Preferred A Stock shall be treated together as a single class.
(d) Conversion
3.05 Each share of 1993 Series Preferred A Stock is
convertible into Common Stock of the Corporation at the times, in the manner,
and subject to the conditions provided below.
3.06 Each share of 1993 Series Preferred A Stock may be
converted at any time at the election of the holder on the presentation and
surrender of the certificate representing the share, duly endorsed, with written
instructions specifying the number of shares of 1993 Series Preferred A Stock to
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be converted and the name and address of the person to whom certificate(s)
representing the Common Stock issuable on conversion are to be issued, at the
principal office of the Corporation.
3.07 Each share of 1993 Series Preferred A Stock shall
automatically be converted into Common Stock immediately upon the earlier of:
(1) the date of effectiveness of a registration statement under the Securities
Act of 1933, as amended, or any successor statute, which covers the resale of
Common Stock issuable on the conversion of such 1993 Series Preferred A Stock,
(2) the date of effectiveness of a registration statement under the Securities
Act of 1933, as amended, or any successor statute, for a firmly underwritten
offering of Common Stock which will provide gross proceeds to the Corporation of
$5,000,000 or more; (3) the date on which the Corporation has received gross
proceeds of at least $5,000,000 pursuant to a best-efforts offering of Common
Stock which was registered pursuant to the Securities Act of 1933, as amended,
or any successor statute; or (4) the date on which the board of directors causes
a notice to be sent, by first class mail to the latest known address as shown on
the Corporation's records, to the holders of 1993 Series Preferred A Stock which
accurately states that: (a) the Corporation has successfully completed two
consecutive fiscal years in which it has shown in each year a net profit before
taxes (excluding nonrecurring and extraordinary items); (b) such net profit is
shown on the Corporation's regular books and records of account; and (c) the
aggregate amount of the two-year period net profit equals or exceeds $5,000,000.
Upon the occurrence of any event specified in this Section
3.07 above, the outstanding shares of 1993 Series Preferred A Stock shall be
automatically converted into Common Stock without any further action by the
holders of such shares and whether or not the certificates representing such
shares are surrendered to the Corporation or its transfer agent. Such conversion
shall be deemed to have been made immediately prior to the close of business on
the date of occurrence of the event causing automatic conversion and the person
or persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock at such time on such date, unless the transfer books
of the Corporation are closed on such date, in which event such person shall be
deemed to have become a shareholder of record on the next succeeding date on
which the transfer books are open.
Upon the automatic conversion of the 1993 Series Preferred A
Stock, the holders of such 1993 Series Preferred A Stock shall surrender the
certificates representing such shares, duly endorsed, at the office of the
Corporation or of any transfer agent for the Corporation. Thereupon, the
Corporation shall promptly issue and deliver at such office to such holder of
1993 Series Preferred A Stock certificates for the number of shares of Common
Stock to which such holder is entitled.
3.08 Each share of 1993 Series Preferred A Stock shall be
convertible into Common Stock of the Corporation at the rate of one share of
Common Stock for each share of 1993 Series Preferred A Stock (the "Conversion
Rate"). The conversion rate shall be subject to adjustment pursuant to
subsection 3.09.
3.09 In order to prevent dilution of the rights granted
hereunder, the Conversion Rate shall be subject to adjustment from time to time
in accordance with this subsection 3.09.
In the event the Corporation shall declare a dividend or make
any other distribution on any capital stock of the Corporation payable in Common
Stock, options to purchase Common Stock, or securities convertible into Common
Stock of the Corporation shall at any time subdivide (other than by means of a
dividend payable in Common Stock) its outstanding shares of Common Stock into a
greater number of shares or combine such outstanding stock into a smaller number
of shares, then in each such event, the Conversion Rate in effect immediately
prior to such combination shall be adjusted so that the holders of the 1993
Series Preferred A Stock shall be entitled to receive the kind and number of
shares of Common Stock or other securities of the Corporation which they would
have owned or have been entitled to receive after the happening of any of the
events described above, had such shares of 1993 Series Preferred A Stock been
converted immediately prior to the happening of such event or any record date
with respect thereto; an adjustment made pursuant to this paragraph shall become
effective immediately after the effective date of such event retroactive to the
record date for such event.
If any capital reorganization or reclassification of the
capital stock of the Corporation, consolidation or merger of the Corporation
with another corporation, or the sale of all or substantially all of its assets
to another corporation shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities, or assets with respect to
or in exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger, or sale, lawful adequate provisions
shall be made whereby the holders of the 1993 Series Preferred A Stock shall
thereafter have the right to acquire and receive on conversion of the 1993
Series Preferred A Stock such shares of stock, securities, or assets as would
have been issuable or payable (as part of the reorganization, reclassification,
consolidation, merger, or sale) with respect to or in exchange for such number
of outstanding shares of the Corporation's Common Stock as would have been
received on conversion of the 1993 Series Preferred A Stock immediately before
such reorganization, reclassification, consolidation, merger, or sale. In any
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such case, appropriate provision shall be made with respect to the rights and
interests of the holders of the 1993 Series Preferred A Stock to the end that
the provisions hereof (including without limitation provisions for adjustments
of the Conversion Rate and for the number of shares issuable on conversion of
the 1993 Series Preferred A Stock) shall thereafter be applicable in relation to
any shares of stock, securities, or assets thereafter deliverable on the
conversion of the 1993 Series Preferred A Stock. In the event of a -merger or
consolidation of the Corporation with or into another corporation or the sale of
all or substantially all of its assets as a result of which a number of shares
of Common Stock of the surviving or purchasing corporation greater or lesser
than the number of shares of Common Stock of the Corporation outstanding
immediately prior to such merger, consolidation, or purchase are issuable to
holders of Common Stock of the Corporation, then the Conversion Rate in effect
immediately prior to such merger, consolidation, or purchase shall be adjusted
in the same manner as though there was a subdivision or combination of the
outstanding shares of Common Stock of the Corporation. The Corporation will not
effect any such consolidation, merger, or sale unless prior to the consummation
thereof the successor corporation resulting from such consolidation or merger or
the corporation purchasing such assets shall assume by written instrument mailed
or delivered to the holders of the 1993 Series Preferred A Stock at the last
address of each such holder appearing on the books of the Corporation, the
obligation to deliver to each such holder such shares of stock, securities, or
assets as, in accordance with the foregoing provisions, such holder may be
entitled to acquire on conversion of 1993 Series Preferred A Stock.
3.10 No adjustment shall be made in the Conversion Rate of the
number of shares of Common Stock issuable on conversion of 1993 Series Preferred
A Stock:
(i) In connection with the offer and sale of any shares of
1993 Series Preferred A Stock;
(ii) In connection with the issuance of any Common Stock,
securities, or assets on conversion of shares of 1993 Series Preferred
A Stock;
(iii) In connection with the issuance of any shares of Common
Stock, securities, or assets on account of the antidilution provisions
set forth in this section 3.10;
(iv) In connection with the purchase or other acquisition by
the Corporation of any capital stock, evidence of its indebtedness, or
other securities of the Corporation; or
(v) In connection with the sale or exchange by the Corporation
of any Common Stock, evidence of its indebtedness, or other securities
of the Corporation, including securities containing the right to
subscribe for or purchase Common Stock or preferred stock of the
Corporation.
3.11 The Corporation covenants and agrees that:
(i) The shares of Common Stock, securities, or assets issuable
on any conversion of any shares of 1993 Series Preferred A Stock shall
have been deemed to have been issued to the person on the Conversion
Date, and on the Conversion Date, such person shall be deemed for all
purposes to have become the record holder of such Common Stock,
securities, or assets.
(ii) All shares of Common Stock or other securities which may
be issued on any conversion of the 1993 Series Preferred A Stock will,
on issuance, be fully paid and nonassessable and free from all taxes,
liens, and charges with respect to the issue thereof. Without limiting
the generality of the foregoing, the Corporation will from time to time
take all such action as may be requisite to assure that the par value
of the unissued Common Stock or other securities acquirable on any
conversion of the 1993 Series Preferred A Stock is at all times
sufficient to render the common stock issued upon conversion as fully
paid and non-assessable.
(iii) The issuance of certificates for Common Stock or other
securities on conversion of the 1993 Series Preferred A Stock shall be
made without charge to the registered holder thereof for any issuance
tax in respect thereof or other costs incurred by the Corporation in
connection with the conversion of the 1993 Series Preferred A Stock and
the related issuance of Common Stock or other securities.
3.12 In case any shares of 1993 Series Preferred A Stock shall
be converted pursuant hereto, the shares so converted shall be cancelled and the
authorized number of shares of Common Stock shall be reduced accordingly.
(e) Redemption
3.13 Subject to the requirements and limitations of the
corporation laws of the state of Utah, the Corporation shall have the right to
redeem shares of 1993 Series Preferred A Stock on the following terms and
conditions.
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3.14 Shares of 1993 Series Preferred A Stock are subject to
redemption by the Corporation at any time after July 31, 1996 pursuant to
written notice of redemption given to the holders thereof on not less than 30
days' written notice specifying the date on which the 1993 Series Preferred A
Stock shall be redeemed (the "Redemption Date"). Subsequent to notice of
redemption and prior to the Redemption Date, shares of 1993 Series Preferred A
Stock may still be converted to Common Stock pursuant to section (d). The
Corporation may redeem a portion or all of the issued and outstanding shares of
1993 Series Preferred A Stock; provided, that in the event that less than all of
the outstanding shares of 1993 Series Preferred A Stock are redeemed, such
redemption shall be pro rata determined on the basis of the number of shares of
1993 Series Preferred A Stock held by each holder reflected on the stock records
and the total number of shares of 1993 Series Preferred A Stock outstanding.
3.15 The redemption price for each share of 1993 Series
Preferred A Stock shall be $5.00 per share plus any accrued but unpaid
dividends, if applicable, on such share as of the Redemption Date (the
"Redemption Price"). The Redemption Price shall be paid in cash.
3.16 Redemption of the 1993 Series Preferred Stock shall be
made in the following manner:
(i) The Corporation shall notify the transfer agent of the
Corporation's Common Stock (the "Transfer Agent"), of its intention to
redeem the 1993 Series Preferred Stock. Such notice shall include a
list of all holders of 1993 Series Preferred Stock outstanding as of
the most recent practicable date and a statement of the number of
shares of 1993 Series Preferred Stock to be redeemed and the manner in
which the Redemption Price is to be paid. At least ten days prior to
the date that written notice of redemption is given to the holders of
the 1993 Series Preferred Stock, the Corporation shall make appropriate
arrangements with the Transfer Agent for the delivery of funds and/or
Common Stock necessary to make payment of the Redemption Price for all
shares of 1993 Series Preferred Stock redeemed by the Corporation.
(ii) On the Redemption Date, all shares of 1993 Series
Preferred Stock subject to redemption shall be automatically redeemed
unless earlier converted pursuant to section (d). The holder of any
shares of 1993 Series Preferred Stock so redeemed shall be required to
tender the certificates representing such shares, duly endorsed, to the
Transfer Agent in exchange for payment of the Redemption Price. On such
surrender, the Transfer Agent shall cause to be issued and delivered a
check and/or certificate representing Common Stock, as the case may be,
with all reasonable dispatch to the holder and in such name or names as
the holder may designate.
(iii) The Transfer Agent shall periodically, but not less
frequently than monthly, provide to the Corporation an accounting of
the 1993 Series Preferred Stock tendered for redemption and the funds
or Common Stock disbursed pursuant thereto. Following the expiration of
a period of 120 days following the Redemption Date, the Transfer Agent
shall provide to the Corporation a complete accounting of the 1993
Series Preferred Stock redeemed and a list of all shares of 1993 Series
Preferred Stock remaining unconverted and not returned to the
Corporation for redemption. Any certificates representing 1993 Series
Preferred Stock received by the Transfer Agent subsequent to the return
of funds to the Corporation will be promptly delivered to the
Corporation. The Corporation shall pay all costs associated with
establishing and maintaining any bank accounts for funds deposited with
the Transfer Agent, including the costs of issuing any check.
(f) Additional Provisions
3.17 No change in the provisions of the 1993 Series Preferred
Stock set forth in this Designation affecting any interests of the holders of
any shares of 1993 Series Preferred Stock shall be binding or effective unless
such change shall have been approved or consented to by the holders of a
majority of the 1993 Series Preferred Stock in the manner provided in the Utah
Revised Business Corporation Act, as the same may be amended from time to time.
3.18 A share of 1993 Series Preferred Stock shall be
transferable only on the books of the Corporation maintained at its principal
office, on delivery thereof duly endorsed by the holder or by his duly
authorized attorney or representative or accompanied by proper evidence of
succession, assignment, or authority to transfer. In all cases of transfer by an
attorney, the original letter of attorney, duly approved, or an official copy
thereof, duly certified, shall be deposited and remain with the Corporation. In
case of transfer by executors, administrators, guardians, or other legal
representatives, duly authenticated evidence of their authority shall be
produced and may be required to be deposited and remain with the Corporation in
its discretion. On any registration or transfer, the Corporation shall deliver a
new certificate representing the share of 1993 Series Preferred Stock so
transferred to the person entitled thereto.
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3.19 The Corporation shall not be required to issue any
fractional shares of Common Stock on the conversion or redemption of any share
of 1993 Series Preferred Stock. If any fraction of a share of Common Stock
would, except for the provisions of this subsection 3.19, be issuable on the
conversion or redemption of any share of 1993 Series Preferred Stock, the
Corporation shall pay an amount in cash equal to the current value of such
fraction computed on the basis of the Redemption Price.
3.20 Any notice required or permitted to be given to the
holders of the 1993 Series Preferred Stock under this Designation shall be
deemed to have been duly given if mailed by first class mail, postage prepared
to such holders at their respective addresses appearing on the stock records
maintained by or for the Corporation and shall be deemed to have been given as
of the date deposited in the United States mail.
ARTICLE IV
CONTROL SHARE ACQUISITION
No shareholder shall have the right to demand payment for his shares in
the event of a control share acquisition as provided in section 61-6-12 of the
Utah Revised Business Corporation Act or successor statute of like tenor, which
section shall not be applicable to the Corporation.
ARTICLE V
LIMITATION ON LIABIILTY
To the fullest extent permitted by the Utah Revised Business
Corporation Act or any other applicable law as now in effect or as it may
hereafter be amended, a director of the Corporation shall have no personal
liability to the Corporation or its shareholders for monetary damages for any
action taken or any failure to take any action as a director.
ARTICLE VI
INDEMNIFICATION OF OFFICERS, DIRECTORS, AND OTHERS
To the fullest extent permitted by the Utah Revised Business
Corporation Act or any other applicable law as now in effect or as it may
hereafter be amended, the Corporation shall indemnify directors as set forth in
the bylaws. The Corporation may indemnify officers, employees, fiduciaries, and
agents to the extent provided for in the bylaws or authorized by the board of
directors.
ARTICLE VII
REGISTERED OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office and the name of the
registered agent at that address in the state of Utah is:
Scott S. Moeller
80 West Canyon Crest Road
Alpine, Utah 84004
Either the registered office or the registered agent may be changed in the
manner provided for by law.
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IN WITNESS WHEREOF, the undersigned signs and executes these Articles
of Restatement of the Articles of Incorporation and certifies to the truth of
the facts herein stated, this 27th day of February, 2004.
CLIFTON MINING COMPANY
By /s/ Kenneth S. Friedman
--------------------------------
Kenneth S. Friedman, President
The appointment of the undersigned as the registered agent of the
Corporation is hereby accepted.
/s/ Scott Moeller
--------------------------------
Scott Moeller, Registered Agent
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