SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 20, 1997
ALTA GOLD CO.
(Exact name of Registrant as specified in charter)
Nevada
(State or other jurisdiction of incorporation)
2-2274 87-0259249
(Commission File Number) (IRS Employee
Identification No.)
601 Whitney Ranch Drive, Henderson, Nevada 89014
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (702)433-8525
Not Applicable
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On January 20, 1997, the Board of Directors of Alta Gold Co.
(the "Company") authorized the restatement of the Company's
Articles of Incorporation without amendment, to set forth in a
single certificate the entire text of its Articles of
Incorporation, including all amendments since the date of its
incorporation on May 7, 1962, and to omit the names, signatures
and acknowledgments of the incorporators from the Restated
Articles of Incorporation and to include the names and addresses
of the present directors instead of the names of the original
directors. The Board of Directors also authorized the
restatement of the Company's By-Laws to set forth in a single
certificate the entire text of its By-Laws and all amendments.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of businesses acquired. Not
applicable.
(b) Pro forma financial information. Not applicable.
(c) Exhibits.
EXHIBIT NO. DESCRIPTION
4.01 Restated Articles of Incorporation of the
Company dated January 20, 1997.
4.02 Restated By-Laws of the Company dated
January 20, 1997.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
ALTA GOLD CO.
(Registrant)
Date: February 3, 1997 By: /s/ John A. Bielun
John A. Bielun
Senior Vice President and Chief
Financial Officer
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EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
4.01 Restated Articles of Incorporation of the 5
Company dated January 20, 1997.
4.02 Restated By-Laws of the Company dated January 8
20, 1997.
4
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ALTA GOLD CO.
RESTATED ARTICLES OF INCORPORATION
FIRST: The name of the corporation is Alta Gold Co.
SECOND: The principal office and place of business of the
corporation shall be located at White Pine County in Ely, Nevada
with the following mailing address:
Silver King Mines, Inc.
c\o Einar C. Erickson
1100 "L" Street
East Ely, Nevada
THIRD: The purposes for which the corporation is
organized is to engage in any and all lawful activities
authorized by the laws of the State of Nevada.
FOURTH: The total number of shares of stock which the
corporation shall have the authority to issue is sixty million
(60,000,000) shares of common stock, having a par value of one-
tenth of one cent ($.001) per share.
FIFTH: The number of directors which shall constitute the
entire Board of Directors shall be as set forth in the bylaws of
the corporation. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly
authorized to adopt, amend, alter or repeal the bylaws of the
corporation, including the authority to change the number of
directors of the corporation.
The Board of Directors shall be at all times divided into three
classes, designated Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the
total number of directors constituting the entire Board of
Directors. At the 1988 annual meeting of stockholders or any
adjournment(s) thereof, directors designated as Class I directors
shall be elected to hold office for a one-year term expiring at
the next succeeding annual meeting of stockholders, directors
designated as Class II directors shall be elected to hold office
for a two-year term expiring at the second succeeding annual
meeting of stockholders and directors designated Class III
directors shall be elected to hold office for a three-year term
expiring at the third succeeding annual meeting of stockholders.
At each successive annual meeting of stockholders, successors to
the class of directors whose term expires at that meeting shall
be elected for a three-year term expiring at the third annual
meeting of stockholders following their election.
If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as possible,
but in no case will a decrease in the number of directors remove
or shorten the term of any director then in office.
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Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority
of the directors then in office, provided that any director so
elected shall hold office until the next annual or special
meeting of stockholders at which directors are to be elected.
Any director elected by stockholders to fill a vacancy in a class
that results from an increase in the number of directors shall
hold office for a term that shall coincide with the remaining
term of such class. Any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director. Any director so elected to fill a vacancy in a class
not resulting from an increase in the number of directors shall
hold office for the unexpired term of his predecessor.
Each director shall hold office until his successor shall be
elected and qualified, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
Directors may be removed by the stockholders only upon the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of Common Stock entitled to vote for the
election of directors.
SIXTH: The stock of the corporation shall be non-
assessable.
SEVENTH: The shareholders shall have no pre-emptive right
to acquire additional or treasury shares of the corporation.
EIGHTH: The name and address of each director is:
<TABLE>
<CAPTION>
<S> <C> <C>
Robert N. Pratt 601 Whitney Ranch Drive, Suite 10 Henderson, NV 89014
Ralph N. Gilges 2202 South Bend Avenue South Bend, IN 46635
Thomas A. Henrie 657 South 1050 East Orem, UT 84097
Iwao Ino 1360 Ainapua Street Honolulu, HI 96819
John A. Keily 84-19 1/4 Street Chetek, WI 54728
Jack W. Kendrick 3910 E. 48th Avenue Spokane, WA 99223
Thomas D. Mueller 900 North Shore Drive, Suite 190 Lake Bluff, IL 60044
</TABLE>
NINTH: The period of its duration is perpetual.
TENTH: The internal affairs of the corporation shall be
regulated by the By-Laws of the corporation which may provide for
any and all matters not specifically reserved or controlled by
the laws of the State of Nevada.
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In Witness Whereof, we the undersigned attest that:
1. We have been duly authorized to execute this
certificate, restating the articles of incorporation of Alta Gold
Co. without amendment, by resolution of the Board of Directors
pursuant to Sections 78.315 and 78.403 of the Nevada Revised
Statutes, as amended, on January 20, 1997; and
2. This certificate correctly sets forth the text of the
articles of incorporation as amended to the date of this
certificate.
/s/ John A. Bielun
John A. Bielun, Senior Vice-President
/s/ Margo R. Bergeson
Margo R. Bergeson, Secretary
STATE OF NEVADA )
) SS.
COUNTY OF CLARK )
This instrument was acknowledged before me on January 22,
1997, by John A. Bielun as Senior Vice-President of Alta Gold Co.
/s/ Lynn M. Radcliffe
Notary Public
STATE OF NEVADA )
) SS.
COUNTY OF CLARK )
This instrument was acknowledged before me on January 22,
1997, by Margo R. Bergeson as Secretary of Alta Gold Co.
/s/ Lynn M. Radcliffe
Notary Public
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ALTA GOLD CO.
RESTATED BY-LAWS
ARTICLE I
CAPITAL STOCK
Section 1. CONSIDERATION FOR SHARES. The Capital Stock,
including both authorized but previously unissued shares, as well
as treasury shares, may be issued for such consideration, as
permitted by NRS 78.211, as such statute may be amended from time
to time.
Section 2. Intentionally deleted.
Section 3. TRANSFER OF STOCK. The shares of the
Corporation shall be transferable only on the books of the
Corporation upon surrender of the certificate or certificates
representing the same, properly endorsed by the registered holder
or by his duly authorized attorney.
ARTICLE II
SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of the
shareholders of the Corporation may be held either within or
without the State of Nevada at such place as may be specified in
the notice calling said meetings and in the absence of any notice
concerning the special place for the holding of said meeting, the
meeting shall be held at the registered office of the
Corporation.
Section 2. ANNUAL MEETING. The annual meeting of
shareholders shall be held at such time and such place as
specified by the Board of Directors. Failure to hold the annual
meeting at the designated time shall not work a forfeiture or a
dissolution of the Corporation.
Section 3. SPECIAL MEETINGS. Special meetings of the
shareholders may be called by the President, the Board of
Directors, or the holders of not less than one-tenth of all the
shares entitled to vote at the meeting.
Section 4. NOTICE OF MEETINGS - WAIVER. Written or
printed notice, stating the place, day and hour of the meeting
and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten
nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the President,
the Secretary, or the officer or person calling the meeting, to
each shareholder of record entitled to vote at the meeting. If
mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the shareholder
at his address as it appears on the stock transfer books of the
Corporation with postage thereon prepaid. Waiver by a
shareholder in writing of notice of a shareholders' meeting,
signed by him, whether before or after the time of such meeting,
shall be equivalent to the giving of such notice. Attendance by
a shareholder, whether in person or by
<PAGE>
proxy, at a shareholders' meeting shall constitute a waiver of
notice on such meeting of which he has had no notice.
Section 5. VOTING AT MEETINGS.
Clause (a). VOTING RIGHTS. Every holder of the
Capital Stock of the Corporation shall be entitled to one vote
for each share of Capital Stock standing in his name on the books
of the Corporation.
Clause (b). QUORUM. Except as otherwise required by
statute or by the Articles of Incorporation, the holders of a
majority of the shares issued and outstanding and entitled to
vote, whether present in person or represented by proxy, shall
constitute a quorum at all meetings of the shareholders for the
transaction of business. If, however, such quorum is not present
or represented at any meeting of the shareholders, then the
holders of a majority of the shares present in person or
represented by proxy or the Chairman of the meeting shall have
power to adjourn the meeting to another time and place. Except
as otherwise required by statute or by the Articles of
Incorporation, the affirmative vote of a majority of the shares
present in person or represented by proxy at the meeting and
entitled to vote on the subject matter shall be the act of the
shareholders. Where a separate vote by class is required, a
majority of the shares of such class issued and outstanding and
entitled to vote shall constitute a quorum of such class, and the
affirmative vote of a majority of the shares in such class
present in person or represented by proxy at the meeting shall be
the act of such class, except as otherwise required by statute or
by the Articles of Incorporation.
Clause (c). PROXIES. A shareholder may vote either
in person or by proxy executed in writing by the shareholder, or
by his authorized attorney-in-fact. No proxy shall be valid
after eleven months from the date of its execution, unless
otherwise provided in the proxy.
Clause (d). Abstentions and broker non-votes will
be treated as present for purposes of obtaining a quorum
pursuant to clause (b), above. Abstentions and broker non-votes
will be counted either: 1) in determining the number of shares
present and entitled to vote on the subject matter for which the
broker non-votes have no authority to vote or act at a
meeting of shareholders; or 2) as votes for or against any such
subject matter.
Section 6. INFORMAL ACTION BY SHAREHOLDERS. Any action
required to be taken at a meeting of the shareholders, or any
other action which may be taken at a meeting of the shareholders,
may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter
thereof.
ARTICLE III
DIRECTORS
Section 1. NUMBER AND QUALIFICATIONS. The business and
affairs of the Corporation shall be managed by a Board of no less
than six Directors, and no more than nine Directors, who need not
be residents of the State of Nevada or shareholders of the
Corporation. The number of
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Directors may be increased or decreased from time to time by
amendment to the Code of By-Laws of the Corporation; but no
decrease shall have the effect of shortening the term of any
incumbent directors.
The Board of Directors shall be at all times divided into
three classes, designated Class I, Class II, and Class III. Each
class shall consist, as nearly as may be possible, of one-third
of the total number of directors constituting the entire Board of
Directors. At the 1988 annual meeting of stockholders or any
adjournment(s) thereof, directors designated as Class I directors
shall be elected to hold office for a one-year term expiring at
the next succeeding annual meeting of stockholders, directors
designated as Class II directors shall be elected to hold office
for a two-year term expiring at the second succeeding annual
meeting of stockholders and directors designated Class III
directors shall be elected to hold office for a three-year term
expiring at the third succeeding annual meeting of stockholders.
At each successive annual meeting of stockholders, successors to
the class of directors whose term expires at that meeting shall
be elected for a three-year term expiring at the third annual
meeting of stockholders following their election.
If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as
possible, but in no case will a decrease in the number of
directors remove or shorten the term of any director then in
office.
Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority
of the directors then in office, provided that any director so
elected shall hold office until the next annual or special
meeting of stockholders at which directors are to be elected.
Any director elected by stockholders to fill a vacancy in a class
that results from an increase in the number of directors shall
hold office for a term that shall coincide with the remaining
term of such class. Any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director. Any director so elected to fill a vacancy in a class
not resulting from an increase in the number of directors shall
hold office for the unexpired term of his predecessor.
Each director shall hold office until his successor shall be
elected and qualified, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
Directors may be removed by the stockholders only upon the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of Common stock entitled to vote for the
election of directors.
Section 2. NOMINATION AND ELECTION. Nominations for the
elections of directors may be made by the Board of Directors or a
committee appointed by the Board of Directors or by any
shareholder entitled to vote in the election of directors
generally. However, any shareholder entitled to vote in the
election of directors generally may nominate one or more persons
for election as directors at a meeting only if written notice of
such shareholder's intent to make such nomination or nominations
has been given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the corporation
(i) with respect to an election to be held at an
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annual meeting of shareholders between 45 and 30 days prior to
such annual meeting, and (ii) with respect to an election to be
held at a special meeting of shareholders called for such
purpose, not later than the close of business on the seventh day
following the date on which notice of such meeting is first given
to shareholders. Each such notice shall set forth: (a) the name,
age and business address of the shareholder who intends to make
the nomination and of the person or persons to be nominated;
(b) a representation that the shareholder is a holder of record
of shares of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination
or nominations are to be made by the shareholder; (d) such other
information regarding each nominee proposed by such shareholder
as would have been required to be included in a proxy statement
filed pursuant to the Exchange Act of 1934 and the proxy rules of
the Securities and Exchange Commission had the nominee been
nominated, or intended to be nominated, by the Board of
Directors; and (e) the consent of each nominee to serve as a
director of the corporation if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person
not made in compliance with the foregoing procedure. Elections
shall occur as provided in the Articles of Incorporation.
Section 3. VACANCIES. Any vacancy occurring in the
Board of Directors may be filled by affirmative vote of a
majority of the remaining directors though less than a quorum of
the Board of Directors. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in
office.
Section 4. PLACE OF MEETINGS. Meetings of the Board of
Directors of the Corporation regular or special may be held
either within or without the State of Nevada.
Section 5. ANNUAL MEETING. The Board of Directors shall
meet each year immediately after the annual meeting of the
shareholders, at the registered office of the Corporation or such
other place as the annual meeting of the stockholders was held or
such place as the Board of Directors may designate, for the
purpose of organization, election of officers, and consideration
of any other business that may properly be brought before the
meeting. No notice of any kind to either old or new members of
the Board of Directors for such annual meeting shall be
necessary.
Section 6. OTHER MEETINGS. Other meetings of the Board
of Directors may be held upon notice by letter, telegram, cable
or radiogram, delivered for transmission not later than during
the third day immediately preceding the day for such meeting, or
by word of mouth, telephone, or radiophone received not later
than during the second day immediately preceding the day for such
meeting, upon the call of the President or Secretary of the
Corporation, at any place within or without the State of Nevada.
Notice of any other meeting of the Board of Directors may be
waived in writing signed by the person or persons entitled to
such notice, whether before or after the time of such meeting and
shall be equivalent to the giving of such notice. Attendance of
a director at such meeting shall constitute a waiver of notice
thereof, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business,
because such meeting is not lawfully convened. Neither the
business to be transacted at, nor the purpose
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of, any meeting of the Board of Directors need be specified in
the notice, or waiver of notice of such meeting.
Section 7. QUORUM. A majority of the number of
directors fixed by the Code of By-Laws shall constitute a quorum
for the transaction of business. The act of majority of the
directors present at a meeting, at which a quorum is present,
shall be the act of the Board of Directors.
Section 8. PRESUMPTION OF ASSENT. A Director of the
corporation who is present at a meeting of the Board of Directors
at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as
the secretary of the meeting before the adjournment thereof, or
shall forward such dissent by registered mail to the Secretary of
the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Director who voted in
favor of such action.
Section 9. REMOVAL. Any Director may be removed either
for or without cause at any special meeting of Shareholders by
the affirmative vote of a majority of two-thirds of the issued
and outstanding capital stock of the Corporation as represented
in person or by proxy and entitled to vote for the election of
such director. If the notice calling for such meeting shall so
provide, the vacancy caused by such removal may be filled at such
meeting by vote of a majority of the Shareholders present and
entitled to vote for the election of Directors.
ARTICLE IV
OFFICERS
Section 1. NUMBER. The officers of the corporation
shall be a President, one or more Vice-Presidents (the number
thereof to be determined by the Board of Directors), a Secretary,
and a Treasurer, each of whom shall be elected by the Board of
Directors. Such other officers and assistant officers as may be
deemed necessary may be elected or appointed by the Board of
Directors. Any two or more offices may be held by the same
person, except the offices of President and Secretary.
Section 2. VACANCIES. Whenever any vacancies shall
occur in any office by death, resignation, increase in the number
of offices of the Corporation, or otherwise, the same shall be
filled by the Board of Directors, and the officer so elected
shall hold office until his successor is chosen and qualified.
Section 3. THE PRESIDENT. The President shall preside
at all meetings of shareholders and directors, discharge all the
duties which devolve upon a presiding officer, and perform such
other duties as this Code of By-Laws provides or the Board of
Directors may prescribe. The President shall have full authority
to execute proxies on behalf of the Corporation, to vote stock
owned by it in any other corporation, and to execute with the
Secretary, powers of attorney appointing other corporations,
partnerships, or individuals of the agent of the Corporation, all
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subject to the provisions of the Nevada Business Corporation Act,
the Articles of Incorporation of the Corporation, and this Code
of By-Laws.
Section 4. VICE PRESIDENTS. In the absence of the
President or in the event of his death, inability or refusal to
act, the Vice President (or in the event there be more than one
Vice-President, the Vice-Presidents in the order designated at
the time of their election, or in the absence of any designation,
then in order of their election) shall perform the duties of the
President, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the President. Any Vice-
President may sign, with the Secretary or an Assistant Secretary,
certificates for shares of the corporation; and shall perform
such other duties as from time to time may be assigned to him by
the President or by the Board of Directors.
Section 5. SECRETARY. The Secretary shall attend all
meetings of the shareholders and of the Board of Directors, and
shall keep, or cause to be kept in a book provided for the
purpose, a true and complete record of the proceedings of such
meetings, and shall perform a like duty for all standing
committees appointed by the Board of Directors, when required.
He shall attend to the giving and serving of all notices of the
Corporation and shall perform such other duties as this Code of
By-Laws may require or the Board of Directors may prescribe.
Section 6. THE TREASURER. The Treasurer shall keep
correct and complete records of account, showing accurately at
all times the financial condition of the Corporation. He shall
be the legal custodian of all monies, notes, securities and other
valuables which may from time to time come into the possession of
the Corporation. He shall immediately deposit all funds of the
Corporation coming into his hands in some reliable bank or other
depositary to be designated by the Board of Directors, and shall
keep such bank account in the name of the Corporation. He shall
furnish at meetings of the Board of Directors, or whenever
requested, a statement of the financial condition of the
Corporation, and shall perform such other duties as this Code of
By-Laws may require or the Board of Directors may prescribe. The
Treasurer may be required to furnish bond in such amount as shall
be determined by the Board of Directors.
Section 7. DELEGATION OF AUTHORITY. In case of the
absence of any officer of the Corporation, or for any other
reason that the Board may deem sufficient, the Board may delegate
the powers or duties of such officer to any other officer or to
any director or employee of the Corporation, for the time being,
provided a majority of the entire Board concurs therein.
Section 8. VACANCIES. A vacancy in any office because
of death, resignation, removal, disqualification or otherwise,
may be filled by the Board of Directors for the unexpired portion
of the term.
Section 9. SALARIES. The salaries of the officers shall
be fixed from time to time by the Board of Directors and no
officer shall be prevented from receiving such salary by reason
of the fact that he is also a director of the corporation.
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ARTICLE V
MISCELLANEOUS
Section 1. EXECUTION OF DOCUMENTS. All checks, drafts,
notes, bonds, bills of exchange and orders for the payment of
money of the Corporation; all deeds, mortgages, and other written
contracts and agreements to which the Corporation shall be a
party; and all assignments or endorsements of stock certificates,
registered bonds, or other securities owned by the Corporation,
shall, unless otherwise directed by the Board of Directors, or
unless otherwise required by law, be signed by any two of the
following officers who are different persons: President, Vice
President, Secretary or Treasurer. The Board of Directors may,
however, authorize any one of such officers to sign any of such
instruments for and in behalf of the Corporation, without
necessity of countersignature; and may designate officers or
employees of the Corporation, other than those named above, who
may, in the name of the Corporation, sign such instruments. Any
shares of stock issued by any other corporation and owned or
controlled by the Corporation may be voted at any shareholders'
meeting of such other corporation by the President of the
Corporation, if he be present; or, in his absence, by any Vice-
President of the Corporation who may be present; and, in event
both the President and Vice-President shall be absent, then by
such person as the President and Secretary of the Corporation
shall, by duly executed proxy, designate to represent the
Corporation at such shareholders' meeting.
Section 2. FISCAL YEAR. The fiscal year of the
Corporation shall begin on the first day of January and end on
the last day of December in each year.
Section 3. WAIVER OF NOTICE. Whenever any notice is
required to be given to any shareholder or director for the
corporation under the provisions of these By-Laws or under the
provisions of the Articles of Incorporation or under the
provisions of the Nevada Business Corporation Act, a waiver
thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
ARTICLE VI
AMENDMENTS
This Code of By-Laws may be altered, amended or repealed and
new By-Laws may be adopted by the Board of Directors at any
regular or special meeting of the Board of Directors and the By-
Laws may be amended by the shareholders and as to any By-Law
amended by the Shareholders or adopted by the shareholders, it
shall not be altered or repealed by the Board of Directors.
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ARTICLE VII
BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS
Section 1. In addition to any affirmative vote required
by law or these Articles of Incorporation or the By-Laws of this
corporation, and except as otherwise expressly provided in
Section 2 of this Article VII, a Business Combination (as
hereinafter defined) shall require the affirmative vote of not
less than seventy percent (70%) of the votes entitled to be cast
on any type of Business Combination by the holders of all then
outstanding shares of Voting Stock (as hereinafter defined),
voting together as a single class. Such affirmative vote shall
be required notwithstanding the fact that no vote may be
required, or that a lesser percentage or separate class vote may
be specified, by law or in any agreement with any national
securities exchange or otherwise.
Section 2. The provisions of Section 1 of this
Article VII shall not be applicable to any particular Business
Combination, and such Business Combination shall require only
such affirmative vote, if any, as is required by law or by any
other provision of these Articles of Incorporation or the By-
Laws of this corporation, or any agreement with any national
securities exchange, if all of the conditions specified in either
of the following Clauses (a) or (b) are met.
Clause (a). The Business Combination shall have been
approved (whether such approval is made prior to or subsequent to
the acquisition of beneficial ownership of the Voting Stock that
caused the Interested Shareholder, as hereinafter defined, to
become an Interested Shareholder) by a majority of the Continuing
Directors (as hereinafter defined).
Clause (b). All of the following conditions shall
have been met or waived by a majority vote of the Continuing
Directors:
A. The aggregate amount of cash and the Fair Market
Value (as hereinafter defined), as of the date of the
consummation of the Business Combination, of consideration other
than cash to be received per share by holders of Common Stock in
such Business Combination, shall be at least equal to the highest
amount determined under clauses (i), (ii), (iii) and (iv) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the interested
Shareholder for any share of common Stock (x) in connection with
the acquisition by the Interested Shareholder of beneficial
ownership of shares Common Stock within the two-year period
immediately prior to the announcement of the proposed Business
Combination (the "Announcement Date") or (y) in the transaction
in which it became an Interested Shareholder, whichever is
higher, in either case as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with
respect to Common Stock;
(ii) the Fair Market value per share of Common
Stock on the Announcement Date or on the date on which the
Interested Shareholder became an Interested Shareholder (the
"Determination Date"), whichever is higher, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to Common Stock;
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(iii) (if applicable) the per price share equal
to the Fair Market Value per share of Common Stock determined
pursuant to the immediately preceding clause (ii), multiplied by
the ratio of (x) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by or on behalf of the Interested Shareholder for any
share of Common Stock in connection with the acquisition by the
Interested Shareholder of beneficial ownership of shares of
Common Stock within the two-year period immediately prior to the
Announcement Date as adjusted for any subsequent stock spit,
stock dividend, subdivision or reclassification with respect to
Common Stock to (y) the Fair Market Value per share of Common
Stock on the first day in such two-year period on which the
Interested Shareholder acquired beneficial ownership of any share
of Common Stock as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to Common
Stock; and
(iv) the Corporation's net income per share of
Common Stock for the four full consecutive fiscal quarters
immediately preceding the Announcement Date, multiplied by the
higher of the then price/earnings multiple (if any) of such
Interested Shareholder or the highest price/earnings multiple of
the Corporation within the two year period immediately preceding
the Announcement Date (such price/earnings multiples being
determined as customarily computed and reported in the financial
community).
B. The aggregate amount of cash and the Fair Market
Value as of the date of the Consummation of the Business
Combination of consideration other than cash to be received per
share by holders of shares of any class or series of outstanding
Capital Stock (as hereinafter defined), other than Common Stock,
shall be at least equal to the highest amount determined under
clauses (i), (ii), (iii), and (iv) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the Interested
Shareholder for any share of such class or series of Capital
Stock in connection with the acquisition by the Interested
Shareholder of beneficial ownership of shares of such class of
series of Capital Stock (x) within the two-year period
immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Shareholder,
whichever is higher, in either case as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of Capital
Stock;
(ii) the Fair Market Value per share of such
class or series of Capital Stock on the Announcement Date or on
the Determination Date, whichever is higher, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of Capital
Stock;
(iii) (if applicable) the price per share equal
to the Fair Market Value per share of such class or series of
Capital Stock determined pursuant to the immediately preceding
clause (ii), multiplied by the ratio of (x) the highest per share
price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the Interested
Shareholder for any share of such class or series of Capital
Stock in connection with the acquisition by the Interested
Shareholder of beneficial ownership of shares of such class or
series of Capital Stock within the two-year period immediately
prior to the Announcement Date
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as adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to such class or
series of Capital Stock to (y) the Fair Market Value per share of
such class or series of Capital Stock on the first day in such
two-year period on which the Interested Shareholder acquired
beneficial ownership of any share of such class or series of
Capital Stock as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to such
class or series of Capital Stock; and
(iv) (if applicable) the highest preferential
amount per share to which the holders of shares of such class or
series of Capital Stock would be entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up
of the affairs of this corporation, regardless of whether the
Business Combination to be consummated constitute such an event.
The provisions of Clause (b)(B) of this Section 2 shall be
required to be met with respect to every class or series of
outstanding Capital Stock, whether or not the Interested
Shareholder has previously acquired beneficial ownership of any
shares of a particular class or series of Capital Stock.
C. The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall be
in cash or in the same form as previously has been paid by or on
behalf of the Interested Shareholder in connection with its
direct or indirect acquisition of beneficial ownership of shares
of such class or series of Capital Stock. If the consideration
so paid for shares of any class or series of Capital Stock varied
as to form, the form of consideration for such class or series of
Capital Stock shall be either cash or the form used to acquire
beneficial ownership of the largest number of shares of such
class or series of Capital Stock previously acquired by the
Interested Shareholder.
D. After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such
Business Combination:
(i) except as approved by a majority of the
Continuing Directors, there shall have been no failure to declare
and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) payable in accordance with the terms
of any outstanding Capital Stock;
(ii) there shall have been no reduction in the
annual rate of dividends paid on the Common Stock (expect as
necessary to reflect any stock split, stock dividend or
subdivision of the Common Stock), except as approved by a
majority of the Continuing Directors;
(iii) there shall have been an increase in the
annual rate of dividends paid on the Common Stock as necessary to
reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that
has the effect of reducing the number of outstanding shares of
Common Stock, unless the failure so to increase such annual rate
is approved by a majority of the Continuing Directors; and
(iv) such Interested Shareholder shall not have
become the beneficial owner of any additional shares of Capital
Stock except as part of the transaction that results in
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such interested Shareholder becoming an Interested Shareholder
and except in a transaction that, after giving effect thereto,
would not result in any increase in the Interested Shareholder's
percentage beneficial ownership of any class or series of Capital
Stock.
E. After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall not
have received the benefit, directly or indirectly (except
proportionately as a shareholder of this corporation), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided by
this Corporation, whether in anticipation of or in connection
with such Business Combination or otherwise.
F. A proxy or information statement describing the
proposed Business Combination and complying with the requirements
of the Securities Exchange Act of 1934 and the rules and
regulations thereunder (the "Act") (or any subsequent provisions
replacing the Act, rules or regulations) shall be mailed to all
shareholders of this corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant
to such Act or subsequent provisions). The proxy or information
statement shall contain on the first page thereof, in a prominent
place, any statement as to the advisability (or inadvisability)
of the Business Combination that the Continuing Directors, or any
of them, may choose to make and, if deemed advisable by a
majority of the Continuing Directors, the opinion of an
investment banking firm selected by a majority of the Continuing
Directors, as to the fairness (or not) of the terms of the
Business Combination from a financial point of view to the
holders of the outstanding shares of Capital Stock other than the
Interested Shareholder and its Affiliates or Associates (as
hereinafter defined), such investment banking firm to be paid a
reasonable fee for its services by this corporation.
G. Such Interested Shareholder shall not have made
any major change in this corporation's business or equity capital
structure without the approval of a majority of the Continuing
Directors.
Section 3. For the purposes of this Article VII:
Clause (a). The term "Business Combination" shall
mean:
A. any merger or consolidation of this corporation
or any Subsidiary (as hereinafter defined) with (i) any
Interested Shareholder or (ii) any other corporation (whether or
not itself an Interested Shareholder) which is or after such
merger or consolidation would be an Affiliate or Associate of an
Interested Shareholder; or
B. any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) with any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder involving any assets or
securities of this Corporation, any Subsidiary or any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder having an aggregate Fair Market Value of $10,000,000
or more; or
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C. the adoption of any plan or proposal for the
liquidation or dissolution of this corporation proposed by or on
behalf of an Interested Shareholder any Affiliate or Associate of
any Interested Shareholder; or
D. any reclassification of securities (including any
reverse stock split), or recapitalization of this corporation, or
any merger or consolidation of this corporation with any of its
Subsidiaries or any other transaction (whether or not with or
otherwise involving an Interested Shareholder) that has the
effect, directly or indirectly, of increasing the proportionate
share of any class or series of Capital Stock, or any securities
convertible into Capital Stock or into equity securities of any
Subsidiary, that is beneficially owned by any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder; or
E. any agreement, contract or other arrangement
providing for any one or more of the actions specified in the
foregoing Clauses (a)(A) to (a)(D) of this Section 3.
Clause (b). The term "Capital Stock" shall mean all
capital stock of this corporation authorized to be issued from
time to time under Article IV of the Articles of Incorporation,
and the term "Voting Stock" shall mean all Capital Stock which by
its terms or pursuant to law may be voted on any Business
Combination submitted to shareholders of this corporation.
Clause (c). The term "person" shall mean any
individual, firm, corporation or other entity and shall include
any group comprised of any person and any other person with whom
such person or any Affiliate or Associate of such person has any
agreement, arrangement or understanding, directly or indirectly,
for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
Clause (d). The term "Interested Shareholder" shall
mean any person (other than this corporation or any Subsidiary
and other than any profit-sharing, employee stock ownership or
other employee benefit plan of this corporation or any Subsidiary
or any trustee of or fiduciary with respect to any such plan when
acting in such capacity) who (a) is the beneficial owner of
Voting Stock representing ten percent (10%) or more of the votes
entitled to be cast with respect to approval of any Business
Combination by the holders of all then outstanding shares of
Voting Stock; or (b) is an Affiliate or Associate of this
corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial
owner of Voting Stock representing ten percent (10%) or more of
the votes entitled to be cast with respect to approval of any
Business Combination by the holders of all then outstanding share
of Voting Stock.
Clause (e). A person shall be a "beneficial owner"
of any Capital Stock (a) which such person or any of its
Affiliates or Associates beneficially owns, directly or
indirectly; (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to acquire
(whether such right is exercisable immediately or subject only to
the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (ii) the right to
vote pursuant to any agreement, arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement,
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arrangement or understanding of the purpose of acquiring,
holding, voting or disposing of any shares of Capital Stock. For
the purposes of determining whether a person is an Interested
Shareholder pursuant to Clause (d) of this Section 3, the number
of shares of Capital Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person through
application of Clause (e) of this Section 3, but shall not
include any other shares of Capital Stock that may be issuable
pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
Clause (f). The terms "Affiliate" and "Associate"
shall have the respective meanings ascribed to such terms in Rule
12b-2 under the Act as in effect on November 30, 1987 (the term
"registrant" in said Rule 12b-2 meaning in this case this
corporation).
Clause (g). The term "Subsidiary" means any
corporation of which a majority of any class of equity security
is beneficially owned by this corporation; PROVIDED, HOWEVER,
that for the purposes of the definition of Interested Shareholder
set forth in Clause (d) of this Section 3 (other than an Existing
Interested Shareholder), the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security
is beneficially owned by this corporation.
Clause (h). The term "Continuing Director" means any
member of the Board of Directors of this corporation (the
"Board"), while such person is a member of the Board, who is not
an Affiliate or Associate or representative of the Interested
Shareholder (unless such Director was recommended for election by
the management of the Corporation and no Business Combination
with such Interested Shareholder or its affiliates has been
proposed or is contemplated) and was a member of the Board prior
to the time that the Interested Shareholder (other than
Interested Shareholders as of June 18, 1990), became an
Interested Shareholder, and any successor or a Continuing
Director, while such successor is a member of the Board, who is
not an Affiliate or Associate or representative of the
Interested Shareholder (unless such Director was recommended by
the management of the Corporation and no Business Combination
has been proposed or is contemplated) and is recommended or
elected to succeed the Continuing Director by a majority of
Continuing Directors.
Clause (i). The term "Fair Market Value" means (a)
in the case of cash, the amount of such cash; (b) in the case of
stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock exchange-Listed
Stocks, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of
Securities Dealer, Inc., Automated Quotations System or any
similar system then in use, or if no such quotations are
available, the fair market value on the date in question of a
share of such stock as determined by a majority of the Continuing
Directors in good faith; and (c) in the case of property other
than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the
Continuing Directors.
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Clause (j). In the event of any Business Combination
in which this corporation survives, the phrase "consideration
other than cash to be received" as used in Clauses (b)(A) and
(b)(B) of Section 2 of this Article VII shall include the shares
of Common Stock and/or the shares of any other class or series of
Capital Stock retained by the holders of such shares.
Section 4. The Board of Directors shall have the power
and duty to determine for the purpose of this Article VII, on the
basis of information known to them after reasonable inquiry, (a)
whether a person is an Interested Shareholder, (b) the number of
shares of Capital Stock or other securities beneficially owned by
any person, (c) whether a person is an Affiliate or Associate of
another, and (d) whether the assets that are the subject of any
Business Combination have, or the consideration to be received
for the issuance or transfer of securities by this corporation or
any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $10,000,000 or more. Any such determination made
in good faith shall be binding and conclusive on all parties.
Section 5. Nothing contained in this Article VII shall
be construed to relieve any Interested Shareholder from any
fiduciary obligation imposed by law.
Section 6. The fact that any Business Combination
complies with the provisions of Section 2 of this Article VII
shall not be construed to impose any fiduciary duty, obligation
or responsibility on the Board, or any member thereof, to approve
such Business Combination or recommend its adoption or approval
to the shareholders of this Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner
the Board, or any member thereof, with respect to evaluations of
or actions and responses taken with respect to such Business
Combination.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1.
Clause (a). To the fullest extent permitted by the
Nevada law, as the same exists or may hereafter be amended, no
director of this corporation shall be personally liable to this
corporation or its shareholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to this corporation
or its shareholders, (ii) for acts or omissions not in good faith
or which involved intentional misconduct or a knowing violation
of law, or (iii) for any transaction from which a director
derived an improper personal benefit.
Clause (b). Any amendment or repeal of this
Article VIII or adoption of any other provision of the By-Laws
which has the effect of increasing director liability shall
operate prospectively only and shall not effect any action taken,
or failure to act, by a director of this corporation prior to
such amendment, repeal, or other provision becoming effective.
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Section 2.
Clause (a). Each person who was or is made a party
or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal
administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she
is the legal representative, is or was a director or officer, of
the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
Corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in
an official capacity as a director, officer, employee or agent or
in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by Nevada law as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in
Clause (b) of this Section 2, the Corporation shall indemnify any
such person seeking indemnification in connection with a
proceeding (or part hereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification
conferred in this Article VIII shall be a contract right and
shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if Nevada law
requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not
in any other capacity in which service was or is rendered by such
person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of
the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Article VIII or
otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
Clause (b). If a claim under Clause (a) of this
Section 2 is not paid in full by the Corporation within thirty
days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding
in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of
conduct which make it permissible under Nevada law for the
Corporation to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to
have made a
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determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth under Nevada law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the client has not met such
applicable standard or conduct, shall be a defense to the action
or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 3. The right of indemnification hereinabove
provided for shall not be exclusive of any rights to which any
director or officer of the Corporation may otherwise be entitled
by law, agreement, or otherwise.
Section 4. The Board of Directors, by resolution, or the
officers of the Corporation may purchase insurance to provide
coverage on behalf of the Corporation and its officers and
directors for the omissions , occurrences, liabilities and
indemnification referred to in and related to the subject matter
of this Article VIII. However, the provisions of any such policy
or policies of insurance shall not limit the effect of any of the
provisions or indemnifications of this Article VIII.
* * * * * *
The undersigned as Secretary does hereby certify that the
foregoing is a true and correct copy of the Restated By-Laws of
Alta Gold Co. as amended at meetings of the Board of Directors
held on March 24, 1994, December 13, 1996, and January 20, 1997,
respectively.
DATED this 20th day of January 1997.
Alta Gold Co.
By: /s/ Margo R. Bergeson
Margo R. Bergeson
Secretary
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