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As filed with the Securities and Exchange Commission on April 27, 2012

Registration No. 333-     

 

 

 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


 

FORM F-9 and FORM S-4

 


 

REGISTRATION STATEMENT UNDER

THE SECURITIES ACT OF 1933

 

Form F-9

 

Form S-4

 

 

 

Kinross Gold Corporation

 

 

 

 

 

(FOR CO-REGISTRANTS, PLEASE SEE TABLE OF CO-
REGISTRANTS ON THE FOLLOWING PAGE)

 

(FOR CO-REGISTRANTS, PLEASE SEE TABLE OF CO-
REGISTRANTS ON THE FOLLOWING PAGE)

(Exact Name of Registrant as Specified in its Charter)

 

Ontario

(Province or Other Jurisdiction of Incorporation or Organization)

 

1040

(Primary Standard Industrial Classification Code Number)

 

Not Applicable

(I.R.S. Employee Identification No.)

 

25 York Street
17th Floor
Toronto, Ontario
Canada M5J 2V5
(416) 365-5123

(Address, including postal code, and telephone number, including area code, of Registrant’s principal executive offices)

 

Shelley M. Riley
Secretary
Kinross Gold U.S.A., Inc.
5370 Kietzke Lane,
Suite 102,
 Reno, Nevada,
89511
(775) 829-1000

(Name, Address (Including Zip Code) and Telephone Number (Including Area Code) of Agent for Service in the United States)

 


 

Copies to:

 

Geoffrey P. Gold, Esq.

 

Robert G. DeLaMater, Esq.

 

Mary Abbott, Esq.

Kinross Gold Corporation

25 York Street
17th Floor
Toronto, Ontario
Canada M5J 2V5
(416) 365-5123

 

Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
(212) 558-4000

 

Osler, Hoskin & Harcourt LLP
100 King Street West
1 First Canadian Place
Suite 6100, P.O. Box 50
Toronto, Ontario
Canada M5X 1B8
(416) 862-4217

 

Approximate date of commencement of proposed sale of the securities to the public:  as soon as practicable after this registration statement becomes effective.


 

Form F-9

 

Province of Ontario, Canada

(Principal Jurisdiction Regulating this Form F-9 Offering)

 

It is proposed that this filing shall become effective (check appropriate box):

 

A.   o   upon filing with the Commission, pursuant to Rule 467(a) (if in connection with an offering being made contemporaneously in the United States and Canada).

 

B.   x   at some future date (check appropriate box below):

 

1.   o   Pursuant to Rule 467(b) on (            ) at (            ) (designate a time not sooner than seven calendar days after filing).

 

2.   o   Pursuant to Rule 467(b) on (            ) at (            ) (designate a time seven calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on (            ).

 

3.   x    Pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto.

 

4.   o    After the filing of the next amendment to this form (if preliminary material is being filed).

 

If any of the securities being registered on this Form F-9 are to be offered on a delayed or continuous basis pursuant to the home jurisdiction’s shelf prospectus offering procedures, check the following box.   o

 

Form S-4

 

If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instructions G, check the following box.   o

 

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

 

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (check one):

 

Large accelerated filer  o     Accelerated filer  o

 

Non-accelerated filer  x       Smaller reporting company  o

 

(Do not check if a smaller reporting company)

 

 


 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class
of Securities to be Registered

 

Amount to be
Registered

 

Proposed Maximum
Offering Price Per
Unit (1)

 

Proposed Maximum
Aggregate Offering
Price (1)

 

Amount of
Registration Fee (1)

 

3.625% Senior Notes due 2016 of Kinross Gold Corporation (“Kinross”)

 

$

250,000,000

 

100

%

$

250,000,000

 

$

28,650

 

5.125% Senior Notes due 2021 of Kinross

 

$

500,000,000

 

100

%

$

500,000,000

 

$

57,300

 

6.875% Senior Notes due 2041 of Kinross

 

$

250,000,000

 

100

%

$

250,000,000

 

$

28,650

 

Guarantees (2)

 

N/A

 

N/A

 

N/A

 

N/A

 

Total

 

$

1,000,000,000

 

 

 

$

1,000,000,000

 

$

114,600

 

 

(1)                 The notes being registered are offered (i) in exchange for 3.625% Senior Notes due 2016, 5.125% Senior Notes due 2021 and 6.875% Senior Notes due 2041 previously sold in a transaction exempt from registration under the Securities Act of 1933, as amended, and (ii) upon certain resales of the notes by broker-dealers. The registration fee has been computed based on the face value of the notes solely for the purpose of calculating the amount of the registration fee, pursuant to Rule 457 under the Securities Act of 1933.

 

(2)                Certain subsidiaries of Kinross Gold Corporation will guarantee the payment of principal of, and premium (if any) and interest on, the debt securities registered hereby. Pursuant to Rule 457(n) under the Securities Act of 1933, no additional filing fee is being paid in respect of the guarantees.

 

The Registrants hereby amend this registration statement on such date or dates as may be necessary to delay its effective date until the registration statement shall become effective as provided in Rule 467 under the Securities Act of 1933 or on such date as the Commission, acting pursuant to Section 8(a) of the Act, may determine.

 

 

 



 

TABLE OF ADDITIONAL REGISTRANTS

 

Form F-9

 

Exact Name of Co-Registrant as Specified in its Charter

 

I.R.S. Employer
Identification No.

 

State or Other Jurisdiction of
Incorporation or Organization

 

 

 

 

 

Aurelian Resources Inc.

 

N/A

 

Canada

Red Back Mining Mauritania No. 2 Limited

 

N/A

 

British Columbia

Red Back Mining Inc.

 

N/A

 

Canada

 

Form S-4

 

Exact Name of Co-Registrant as Specified in its Charter

 

I.R.S. Employer
Identification No.

 

State or Other Jurisdiction of
Incorporation or Organization

 

 

 

 

 

BGO (Bermuda) Ltd.

 

N/A

 

Bermuda

Kinross Brasil Mineraçao S.A.

 

N/A

 

Federative Republic of Brazil

Kinross Gold U.S.A., Inc.

 

87-0364965

 

Nevada

Crown Resources Corporation

 

84-1097086

 

Washington

Fairbanks Gold Mining, Inc.

 

06-1325563

 

Delaware

Melba Creek Mining, Inc.

 

92-0129829

 

Alaska

Compañía Minera Mantos de Oro

 

N/A

 

Republic of Chile

Compañía Minera Maricunga

 

N/A

 

Republic of Chile

Round Mountain Gold Corporation

 

88-0211837

 

Delaware

 

Address, including Zip Code, and Telephone Number, including Are a Code, of each Co-Registrant’s Principal Executive Offices: c/o Kinross Gold Corporation, 25 York Street, 17th Floor, Toronto, Ontario, Canada M5J 2V5, (416) 365-5123.

 

Name, Address, including Zip Code, and Telephone Number, including Area Code, of each Co-Registrant’s Agent for Service:   Shelley M. Riley, Secretary, Kinross Gold U.S.A., Inc., to 5370 Kietzke Lane, Suite 102, Reno, Nevada, 89511, (775) 829-1000.

 


 

PART 1

 

INFORMATION REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS

 


Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be exchanged prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.

PRELIMINARY SHORT FORM PROSPECTUS

New Issue

  SUBJECT TO COMPLETION, DATED APRIL       , 2012

Kinross Gold Corporation

Offer to exchange all outstanding 3.625% Senior Notes due 2016 issued on August 22, 2011 for up to $250,000,000 Aggregate Principal Amount of Registered 3.625% Senior Notes due 2016 and the Guarantees thereon
and
Offer to exchange all outstanding 5.125% Senior Notes due 2021 issued on August 22, 2011 for up to $500,000,000 Aggregate Principal Amount of Registered 5.125% Senior Notes due 2021 and the Guarantees thereon
and
Offer to exchange all outstanding 6.875% Senior Notes due 2041 issued on August 22, 2011 for up to $250,000,000 Aggregate Principal Amount of Registered 6.875% Senior Notes due 2041 and the Guarantees thereon

The Initial Notes:

$250,000,000 aggregate principal amount of 3.625% Senior Notes due 2016 (the " Initial 2016 Notes "), $500,000,000 aggregate principal amount of 5.125% Senior Notes due 2021 (the " Initial 2021 Notes ") and $250,000,000 aggregate principal amount of 6.875% Senior Notes due 2041 (the " Initial 2041 Notes ") were originally issued by Kinross Gold Corporation (" Kinross ") on August 22, 2011 in a transaction that was exempt from registration under the United States Securities Act of 1933, as amended (the " Securities Act "), and resold to qualified institutional buyers in reliance on Rule 144A and non-U.S. persons outside the United States in reliance on Regulation S. We refer to the Initial 2016 Notes, the Initial 2021 Notes and the Initial 2041 Notes together as the " Initial Notes ".

The New Notes:

The terms of the new 2016 notes (the " New 2016 Notes "), the new 2021 notes (the " New 2021 Notes ") and the new 2041 notes (the " New 2041 Notes ") are substantially identical to the terms of the Initial 2016 Notes, the Initial 2021 Notes and the Initial 2041 Notes, respectively, except that the New 2016 Notes, the New 2021 Notes and the New 2041 Notes will be registered under the Securities Act, will not contain restrictions on transfer or certain provisions relating to additional interest, will bear different CUSIP numbers from the Initial Notes and will not entitle their holders to registration rights. The New 2016 Notes, the New 2021 Notes and the New 2041 Notes will evidence the same continuing indebtedness as the Initial 2016 Notes, the Initial 2021 Notes and the Initial 2041 Notes, respectively. We refer to the New 2016 Notes, the New 2021 Notes and the New 2041 Notes together as the " New Notes " and the Initial Notes and the New Notes together as the " Notes ".

All dollar amounts in this prospectus are in United States dollars, unless otherwise indicated. See "Exchange Rate Information".

See "Risk Factors" beginning on page 6 for a discussion of certain risks that you should consider in connection with an investment in the Notes.

Exchange Offer:

Our offer to exchange Initial 2016 Notes for New 2016 Notes, the Initial 2021 Notes for New 2021 Notes and the Initial 2041 Notes for New 2041 Notes will be open until 5:00 p.m., New York City time, on                                    , 2012, unless we extend the offer.


New Notes of each series will be issued in exchange for an equal principal amount of outstanding Initial Notes of such series accepted in the exchange offer. The exchange offer is not conditioned upon any minimum principal amount of Initial Notes being tendered for exchange. However, the obligation to accept the Initial Notes for exchange pursuant to the exchange offer is subject to certain customary conditions set forth herein. See "Exchange Offer — Terms of the Exchange Offer — Conditions."

         There is no market through which these securities may be sold and purchasers may not be able to resell securities purchased under the short form prospectus. This may affect the pricing of the securities in the secondary market, the transparency and availability of trading prices, the liquidity of the securities and the extent of issuer regulation. See "Risk Factors".

         Kinross is permitted to prepare this prospectus in accordance with Canadian disclosure requirements, which are different than those of the United States.

         Owning the debt securities may subject you to tax consequences in the United States and Canada. You should read the tax discussion in this prospectus. This prospectus may not describe these tax consequences fully.

         We are a corporation existing under the laws of the Province of Ontario, Canada. A majority of our assets are located outside of the United States. In addition most of our directors and officers named in this prospectus and the documents incorporated by reference herein are resident outside of the United States. As a result, it may be difficult for United States investors to effect service of process within the United States upon those directors or officers who are not residents of the United States, or to realize in the United States upon judgments of courts of the United States.

         The debt securities have not been approved or disapproved by the Ontario Securities Commission, the U.S. Securities and Exchange Commission or any state securities regulator, nor has the Ontario Securities Commission, the U.S. Securities and Exchange Commission or any state securities regulator passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offence.

         Since no securities are being offered pursuant to this prospectus, no proceeds will be raised and all expenses in connection with the preparation and filing of this prospectus will be paid by Kinross from its general corporate funds.

         No underwriter is being used in connection with this exchange offer or has been involved in the preparation of this prospectus or has performed any review of the contents of this prospectus.

         The earnings coverage ratio in respect of Kinross' indebtedness for the 12-month period ended December 31, 2011 is less than one-to-one. See "Earnings Coverage."

         Prospective investors should be aware that, during the period of the exchange offer, the registrant or its affiliates, directly or indirectly, may bid for or make purchases of the debt securities to be distributed or to be exchanged, or certain related debt securities, as permitted by applicable laws or regulations of Canada, or its provinces or territories.

        This prospectus, as it may be amended or supplemented from time to time, may be used by broker-dealers in connection with resales of New Notes received in exchange for Initial Notes, where such Initial Notes were acquired by such broker-dealer as a result of market making or other trading activities.

        The date of this prospectus is                                    , 2012.



IMPORTANT NOTICE ABOUT INFORMATION IN THIS PROSPECTUS

        You should rely only on the information contained in this prospectus or incorporated by reference in this prospectus. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell the debt securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information contained in this prospectus or in any document incorporated or deemed to be incorporated by reference in this prospectus is accurate only as of the respective date of the document in which such document appears.

         The New Notes have not been and will not be qualified for public distribution under the securities laws of any province or territory of Canada. The New Notes are not being offered for sale and may not be offered or sold, directly or indirectly, in Canada or to any resident thereof except in accordance with the securities laws of the provinces and territories of Canada.

         Kinross presents its financial statements in U.S. dollars and, effective January 1, 2011, the financial statements are prepared in accordance with International Financial Reporting Standards ("IFRS"). Unless otherwise indicated, financial information included or incorporated by reference in this prospectus has been prepared in accordance with IFRS. As a result, certain financial information included or incorporated by reference in this prospectus may not be comparable to financial information prepared by other United States or Canadian companies.

        References to "$" in this prospectus are to U.S. dollars and references to "Cdn$" in this prospectus are to Canadian dollars unless otherwise indicated. See "Exchange Rate Information".

         In this prospectus, "we", "us" and "our" refer to Kinross and its subsidiaries, unless the context requires otherwise.



TABLE OF CONTENTS

 
  Page

INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

  iii

WHERE YOU CAN FIND MORE INFORMATION

  iii

NOTE REGARDING FORWARD-LOOKING STATEMENTS

  iv

NOTICE REGARDING PRESENTATION OF MINERAL RESERVE AND MINERAL RESOURCE ESTIMATES

  vi

EXCHANGE RATE INFORMATION

  vi

ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES

  vi

PROSPECTUS SUMMARY

  1

RISK FACTORS

  6

KINROSS

  9

EXCHANGE OFFER

  10

USE OF PROCEEDS

  18

CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES

  19

CONSOLIDATED CAPITALIZATION

  20

EARNINGS COVERAGE

  21

DESCRIPTION OF THE NOTES AND GUARANTEES

  22

U.S. FEDERAL INCOME TAX CONSIDERATIONS

  41

CANADIAN FEDERAL INCOME TAX CONSIDERATIONS

  44

PLAN OF DISTRIBUTION

  45

INDEPENDENT CHARTERED ACCOUNTANTS

  45

INTERESTS OF QUALIFIED PERSONS

  45

VALIDITY OF NOTES AND GUARANTEES

  46

DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT

  46

         This prospectus incorporates by reference documents that contain important business and financial information about us that is not included in or delivered with this prospectus. These documents are available without charge to security holders upon written or oral request to the Corporate Secretary of Kinross at Kinross Gold Corporation, 25 York Street, 17th Floor, Toronto, Ontario, Canada M5J 2V5, (416) 365-5123 and are also available electronically on the System for Electronic Document Analysis and Retrieval at http://sedar.com. To obtain timely delivery, holders of the Initial Notes must request these documents no later than five business days before the expiration date. Unless extended, the expiration date is                                    , 2012.

ii



INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

        The following documents, filed with the securities commissions or similar regulatory authorities in each of the provinces and territories of Canada and filed with or furnished to the U.S. Securities and Exchange Commission (the " Commission "), are specifically incorporated by reference in this prospectus:

    (a)
    The annual information form of Kinross dated as of March 29, 2012 for the year ended December 31, 2011 (incorporated by reference to Exhibit 99.1 to Kinross' Form 40-F filed with the Commission on March 30, 2012 (the " Form 40-F ")).

    (b)
    The annual audited consolidated financial statements of Kinross for the year ended December 31, 2011, including consolidated balance sheets as at December 31, 2011, December 31, 2010 and January 1, 2010 and the consolidated statements of operations, comprehensive income (loss), cash flows, and equity for the years ended December 31, 2011 and December 31, 2010 and related notes, together with the reports of the registered public accounting firm thereon (incorporated by reference to Exhibit 99.4 of the Form 40-F).

    (c)
    The management's discussion and analysis (" Management's Discussion and Analysis ") of Kinross for the financial year ended December 31, 2011 (incorporated by reference to Exhibit 99.2 of the Form 40-F).

    (d)
    The management information circular of Kinross dated March 23, 2012, in connection with the annual meeting of Kinross' shareholders to be held on May 9, 2012 (incorporated by reference to Exhibit 99.1 to Kinross' Form 6-K, furnished to the Commission on April 5, 2012).

        Any annual information form, annual financial statements (including the auditors' report thereon), interim financial statements, management's discussion and analysis, material change report (excluding any confidential material change reports), business acquisition report or information circular or amendments thereto that we file with any securities commission or similar regulatory authority in Canada after the date of this prospectus and prior to the termination of the offering of the New Notes will be incorporated by reference in this prospectus and will automatically update and supersede information contained or incorporated by reference in this prospectus. In addition, all documents we file with or furnish to the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the United States Securities Exchange Act of 1934, as amended (the " Exchange Act "), subsequent to the date of this prospectus and prior to the termination of the offering of the New Notes to which this prospectus relates shall be deemed to be incorporated by reference into this prospectus and the registration statement of which the prospectus forms a part from the date of filing or furnishing of such documents (in the case of any Report on Form 6-K, if and to the extent expressly set forth in such report).

         Any statement contained in a document incorporated or deemed to be incorporated by reference herein or contained in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent any statement contained herein or in any subsequently filed or furnished document which is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded. The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any information set forth in the document that it modifies or supersedes. The making of a modifying or superseding statement shall not be deemed an admission for any purpose that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made.


WHERE YOU CAN FIND MORE INFORMATION

        We will provide to each person, including any beneficial owner, to whom this prospectus is delivered, without charge, upon written or oral request to the Corporate Secretary of Kinross at Kinross Gold Corporation, 25 York Street, 17th Floor, Toronto, Ontario, Canada M5J 2V5, (416) 365-5123, copies of the documents incorporated by reference in this prospectus. We do not incorporate by reference into this prospectus any of the information on, or accessible through, our website or any of the websites listed below.

iii


        We file certain reports with, and furnish other information to, the Commission and the provincial and territorial securities regulatory authorities of Canada. Kinross' Commission file number is 1-13382. Under a multi-jurisdictional disclosure system adopted by the United States and Canada, such reports and other information may be prepared in accordance with the disclosure requirements of the provincial and territorial securities regulatory authorities of Canada, which requirements are different from those of the United States. As a foreign private issuer, Kinross is exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements, and Kinross' officers and directors are exempt from the reporting and short swing profit recovery provisions contained in Section 16 of the Exchange Act. Our reports and other information filed with or furnished to the Commission are available, and our reports and other information filed or furnished in the future with or to the Commission will be available, from the Commission's Electronic Document Gathering and Retrieval System (http://www.sec.gov), which is commonly known by the acronym "EDGAR", as well as from commercial document retrieval services. You may also read (and by paying a fee, copy) any document we file with or furnish to the Commission at the Commission's public reference room in Washington, D.C. (100 F Street N.E., Washington, D.C. 20549). Please call the Commission at 1-800-SEC-0330 for more information on the public reference room. You may also inspect our Commission filings at the NYSE, 20 Broad Street, New York, New York 10005. Our Canadian filings are available on the System for Electronic Document Analysis and Retrieval (" SEDAR ") at http://www.sedar.com.

        We have filed with the Commission under the Securities Act, a registration statement on Form F-9/S-4 relating to the securities being offered hereunder and of which this prospectus forms a part. This prospectus does not contain all the information set forth in such registration statement, certain items of which are contained in the exhibits to the registration statement as permitted or required by the rules and regulations of the Commission. Items of information omitted from this prospectus but contained in the registration statement will be available on the Commission's website at http://www.sec.gov.


NOTE REGARDING FORWARD-LOOKING STATEMENTS

        All statements, other than statements of historical fact, contained or incorporated by reference in this prospectus including, but not limited to, any information as to our future financial or operating performance, constitute "forward looking information" or "forward-looking statements" within the meaning of certain securities laws, including the provisions of the Securities Act (Ontario) and the provisions for "safe harbor" under the United States Private Securities Litigation Reform Act of 1995 and are based on expectations, estimates and projections as of the date of this prospectus. Forward-looking statements include, without limitation, possible events, statements with respect to possible events, the future price of gold and silver, the estimation of mineral reserves and resources, the realization of mineral reserve and resource estimates, the timing and amount of estimated future production, costs of production, expected capital expenditures, costs and timing of the development of new deposits, success of exploration, development and mining activities, permitting time lines, currency fluctuations, requirements for additional capital, government regulation of mining operations, environmental risks, unanticipated reclamation expenses, title disputes or claims and limitations on insurance coverage. The words "plans", "expects" or "does not expect", "is expected", "budget", "scheduled", "estimates", "targets", "forecasts", "intends", "anticipates", or "does not anticipate", or "believes", or variations of such words and phrases or statements that certain actions, events or results "may", "could", "would", "should", "might", or "will be taken", "occur" or "be achieved" and similar expressions identify forward-looking statements. Forward-looking statements are necessarily based upon a number of estimates and assumptions that, while considered reasonable by us as of the date of such statements, are inherently subject to significant business, economic and competitive uncertainties and contingencies. Our estimates, models and assumptions referenced, contained or incorporated by reference in this prospectus, which may prove to be incorrect, include, but are not limited to, the various assumptions set forth herein and in our annual information form on Form 40-F and our Management's Discussion and Analysis, each of which is incorporated herein, as well as: (1) there being no significant disruptions affecting our operations or the operations of any entity in which we now or hereafter directly or indirectly hold an investment, whether due to labor disruptions, supply disruptions, power disruptions, damage to equipment or otherwise; (2) permitting, development, operations, expansion and acquisitions at Paracatu (including, without limitation, land acquisitions and permitting for the construction and operation of the new tailings facility) being consistent with our current expectations; (3) development of and production from the Phase 7 pit expansion and heap leach project at Fort Knox

iv


continuing on a basis consistent with our current expectations; (4) the viability, permitting and development of the Fruta del Norte deposit, and our continuing ownership of it, being consistent with our current expectations; (5) political and legal developments in any jurisdiction in which we, or any entity in which we now or hereafter directly or indirectly hold an investment, operate being consistent with our current expectations including, without limitation, the implementation of Ecuador's new mining and investment laws and related regulations and policies, and negotiation of an exploitation agreement and investment protection agreement with the government (on terms satisfactory to us), being consistent with our current expectations; (6) permitting, construction, development and production at Cerro Casale being consistent with our current expectations; (7) the viability, permitting and development of the Lobo-Marte project, including, without limitation, the metallurgy and processing of its ore, being consistent with our current expectations; (8) the exchange rate between the Canadian dollar, Brazilian real, Chilean peso, Russian rouble, Mauritanian ouguiya, Ghanaian cedi and the U.S. dollar being approximately consistent with current levels; (9) certain price assumptions for gold and silver; (10) prices for natural gas, fuel oil, electricity and other key supplies being approximately consistent with current levels; (11) production and cost of sales forecasts for us, and entities in which we now or hereafter directly or indirectly hold an investment, meeting expectations; (12) the accuracy of the current mineral reserve and mineral resource estimates of us and any entity in which we now or hereafter directly or indirectly hold an investment; (13) labor and materials costs increasing on a basis consistent with our current expectations; (14) the development of the Dvoinoye and Vodorazdelnaya deposits being consistent with our expectations; (15) the viability of the Tasiast and Chirano mines, and the permitting, development and expansion of the Tasiast and Chirano mines on a basis consistent with our current expectations, including but not limited to the terms and conditions of the legal and fiscal stability agreements for these operations being interpreted and applied in a manner consistent with their intent and our expectations; and (16) access to capital markets, including but not limited to securing project financing for Fruta del Norte and the Tasiast expansion projects, being consistent with our current expectations. Known and unknown factors could cause actual results to differ materially from those projected in the forward-looking statements. Such factors include, but are not limited to: fluctuations in the currency markets; fluctuations in the spot and forward price of gold or certain other commodities (such as diesel fuel and electricity); changes in interest rates or gold or silver lease rates that could impact the mark-to-market value of outstanding derivative instruments and ongoing payments/receipts under any interest rate swaps and variable rate debt obligations; risks arising from holding derivative instruments (such as credit risk, market liquidity risk and mark-to-market risk); changes in national and local government legislation, taxation, including but not limited to income tax, advance income tax, stamp withholding tax, capital tax, tariffs, value-added or sales tax, capital outflow tax, capital gains tax, windfall or windfall profits tax, royalty, excise tax, customs/import or export duties, asset taxes, asset transfer tax, property use or other real estate tax, together with any related fine, penalty, surcharge, or interest imposed in connection with such taxes, controls, policies and regulations, the security of personnel and assets and political or economic developments in Canada, the United States, Chile, Brazil, Russia, Ecuador, Mauritania, Ghana or other countries in which we, or entities in which we now or hereafter directly or indirectly hold an investment, do business or may carry on business in the future; business opportunities that may be presented to, or pursued by, us; our ability to successfully integrate acquisitions and complete divestitures; operating or technical difficulties in connection with mining or development activities; employee relations; commencement of litigation against us, including but not limited to, securities class action in Canada and/or the United States; the speculative nature of gold exploration and development, including the risks of obtaining necessary licenses and permits; diminishing quantities or grades of reserves; adverse changes in our credit rating; and contests over title to properties, particularly title to undeveloped properties. In addition, there are risks and hazards associated with the business of gold exploration, development and mining, including environmental hazards, industrial accidents, unusual or unexpected formations, pressures, cave-ins, flooding and gold bullion losses (and the risk of inadequate insurance, or the inability to obtain insurance, to cover these risks). Many of these uncertainties and contingencies can directly or indirectly affect, and could cause, our actual results to differ materially from those expressed or implied in any forward looking statements made by, or on behalf of, us. There can be no assurance that forward looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. Forward looking statements are provided for the purpose of providing information about management's expectations and plans relating to the future. All of the forward-looking statements made in this prospectus are qualified by these cautionary statements and those made in our other filings with the securities regulators of Canada and the United States including, but not limited to, the cautionary statements made in the "Risk Factors" section of our

v


Form 40-F and the "Risk Analysis" section of our Management's Discussion and Analysis. These factors are not intended to represent a complete list of the factors that could affect us. We disclaim any intention or obligation to update or revise any forward looking statements or to explain any material difference between subsequent actual events and such forward looking statements, except to the extent required by applicable law.


NOTICE REGARDING PRESENTATION OF MINERAL RESERVE AND MINERAL RESOURCE ESTIMATES

        In accordance with applicable Canadian securities regulatory requirements, all mineral reserve and mineral resource estimates of Kinross incorporated by reference in this prospectus have been prepared in accordance with National Instrument 43-101 — Standards of Disclosure for Mineral Projects ("NI 43-101"), classified in accordance with Canadian Institute of Mining Metallurgy and Petroleum's "CIM Standards on Mineral Resources and Reserves Definitions and Guidelines" (the "CIM Guidelines"). The definitions of mineral reserves and mineral resources are set out in our disclosure of our mineral reserve and mineral resource estimates that are incorporated by reference in this prospectus. The terms "mineral reserve", "proven mineral reserve" and "probable mineral reserve" are Canadian mining terms as defined in accordance with NI 43-101 and the CIM Guidelines. These definitions differ from the definitions in the SEC Industry Guide 7 under the Securities Act ("SEC Industry Guide 7"). Under SEC Industry Guide 7 standards, a "final" or "bankable" feasibility study is required to report reserves. The three-year historical average price is used in any reserve or cash flow analysis to designate reserves and the primary environmental analysis or report must be filed with the appropriate government authority. In addition, Kinross uses the terms "mineral resources," "measured mineral resources," "indicated mineral resources" and "inferred mineral resources." While those terms are recognized by Canadian securities regulatory authorities, they are not recognized by the SEC. Pursuant to the CIM Guidelines, mineral resources have a higher degree of uncertainty than mineral reserves as to their existence as well as their economic and legal feasibility. Inferred mineral resources, when compared with measured or indicated mineral resources, have the least certainty as to their existence, and it cannot be assumed that all or any part of an inferred mineral resource will be upgraded to an indicated or measured mineral resource as a result of continued exploration. Pursuant to NI 43-101, inferred mineral resources may not form the basis of any economic analysis, including any feasibility study. Accordingly, investors are cautioned not to assume that all or any part of a mineral resource exists, will ever be converted into a mineral reserve, or is or will ever be economically or legally mineable or recovered.


EXCHANGE RATE INFORMATION

        The noon exchange rate on April 26, 2012, as reported by the Bank of Canada for the conversion of United States dollars into Canadian dollars was $1.00 equals Cdn$0.9841.


ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES

        We are a corporation existing under the laws of the Province of Ontario, Canada. A majority of our assets are located outside of the United States. In addition, most of our directors and officers named in this prospectus and the documents incorporated by reference herein are resident outside of the United States. As a result, it may be difficult for United States investors to effect service of process within the United States upon those directors or officers who are not residents of the United States, or to realize in the United States upon judgments of courts of the United States predicated upon civil liability of such directors or officers under U.S. federal securities laws. We have been advised by Osler, Hoskin & Harcourt LLP, our Canadian counsel, that a judgment of a U.S. court predicated solely upon civil liability under such laws would probably be enforceable in Canada if the U.S. court in which the judgment was obtained had a basis for jurisdiction in the matter that was recognized by an Ontario court for such purposes. We have also been advised by such counsel, however, that there is substantial doubt whether an action could be brought in Ontario in the first instance on the basis of liability predicated solely upon such laws.

        The assets of several of our subsidiary guarantors are also located outside of the United States. Their directors and officers are generally resident outside of the United States. As a result, it may be difficult for United States investors to effect service of process within the United States upon those directors or officers who are not residents of the United States, or to realize in the United States upon judgments of courts of the United States predicated upon civil liability of such directors or officers under U.S. federal securities laws.

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PROSPECTUS SUMMARY

Company Overview

        Kinross Gold Corporation ("Kinross" and the "Company") is the seventh largest gold producer in the world based on 2011 production volumes. Our market capitalization was approximately $13.0 billion as of December 31, 2011. Based in Toronto, Ontario, Kinross was formed in 1993 from three predecessor mining companies, and now owns or has a joint venture interest in 10 operating mines and five development projects in Brazil, Chile, Ecuador, Russia, West Africa and the United States. We currently employ approximately 8,230 people. The Company has approximately 62.6 million ounces of gold, 84.9 million ounces of silver and 1.4 billion pounds of copper in proven and probable mineral reserves based on our mineral reserve and resource statement which we refer to in our Form 40-F for the period ended December 31, 2011.

        For the year ended December 31, 2011, we had revenues of $3.9 billion and a net loss attributed to common shareholders of $2.1 billion, with attributable gold-equivalent production of 2.6 million ounces. The net loss attributable to common shareholders of $2.1 billion included the impact of a $2.9 billion non-cash goodwill impairment charge related to Tasiast and Chirano. Our principal product is gold, produced in the form of doré that we send to refineries for final processing. As a by-product, we also produce limited amounts of silver (primarily from our La Coipa mine in Chile and our Kupol mine in Russia), which is converted into gold equivalents for reporting purposes based on relative market prices.

        The following table sets out our primary mining operations, along with our percentage ownership and attributable share of production and sales volume for the year ended December 31, 2011:

 
   
  Gold Equivalent Ounces (Kinross Share)
(Year Ended
December 31, 2011)
 
 
  % Ownership
(as of December 31, 2011)
 
Operation
  Produced   Sold  

Fort Knox, Alaska, USA

    100     289,794     287,519  

Round Mountain, Nevada, USA

    50     187,444     185,385  

Kettle River-Buckhorn, USA

    100     175,292     178,269  

Kupol, Russia (100%)

    100     653,063     655,325  

Paracatu, Brazil

    100     453,396     449,605  

Crixás, Brazil

    50     66,583     63,757  

La Coipa, Chile

    100     178,287     191,032  

Maricunga, Chile

    100     236,249     230,828  

Tasiast, Mauritania

    100     200,619     196,961  

Chirano, Ghana (100%)

    90     261,846     262,677  
                 

Operations Total

          2,702,573     2,701,358  
                 

Less Kupol non-controlling interest (25% up to April 27, 2011, nil% thereafter) (1)

          (66,015 )   (63,802 )

Less Chirano non-controlling interest (10%) (2)

          (26,185 )   (26,269 )
                 

Attributable

          2,610,373     2,611,287  
                 

(1)
As of April 27, 2011, Kinross owns 100% of the Kupol operation. As such, the results up to April 27, 2011 reflect 75% and results thereafter reflect 100%.

(2)
The Government of Ghana has a 10% carried interest in Chirano.

        The principal executive offices of each of the registrants is c/o Kinross Gold Corporation, 25 York Street, 17th Floor, Toronto, Ontario, Canada M5J 2V5, (416) 365-5123.

 

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Summary Of Terms Of The Exchange Offer

        We are offering to exchange $250,000,000 aggregate principal amount of Initial 2016 Notes for a like aggregate principal amount of our New 2016 Notes, $500,000,000 aggregate principal amount of Initial 2021 Notes for a like aggregate principal amount of our New 2021 Notes and $250,000,000 aggregate principal amount of Initial 2041 Notes for a like aggregate principal amount of our New 2041 Notes, evidencing the same continuing indebtedness as the Initial 2016 Notes, the Initial 2021 Notes and the Initial 2041 Notes, respectively. In order to exchange your Initial 2016 Notes, and/or your Initial 2021 Notes and/or your Initial 2041 Notes, you must properly tender them and we must accept your tender. We will exchange all outstanding Initial 2016 Notes, Initial 2021 Notes and Initial 2041 Notes that are validly tendered and not validly withdrawn.

Exchange Offer:

 

We will exchange your Initial 2016 Notes for a like aggregate principal amount of our New 2016 Notes.

 

We will exchange your Initial 2021 Notes for a like aggregate principal amount of our New 2021 Notes.

 

We will exchange your Initial 2041 Notes for a like aggregate principal amount of our New 2041 Notes.

Resale of New Notes:

 

We believe you may offer the New Notes for resale and resell and otherwise transfer New Notes without compliance with the registration or prospectus delivery provisions of the United States Securities Act of 1933, as amended (the "Securities Act") if:

 

You are acquiring the New Notes in the ordinary course of your business;

 

You are not a broker-dealer that acquired the Initial Notes from us or in market-making transactions or other trading activities;

 

You are not participating, do not intend to participate and have no arrangement or understanding with any person to participate in the distribution of the New Notes issued to you; and

 

You are not an affiliate, under Rule 405 of the Securities Act, of us.

 

You should read the discussion under the heading "Exchange Offer" for further information regarding the exchange offer and resale of the New Notes.

Registration Rights
Agreement:

 

We have undertaken this exchange offer pursuant to the terms of a registration rights agreement entered into with the initial purchasers of the Initial Notes. See "Exchange Offer."

Consequences of Failure to
Exchange Initial Notes:

 

You will continue to hold Initial Notes that remain subject to their existing transfer restrictions if:

 

You do not tender your Initial Notes; or

 

You tender your Initial Notes and they are not accepted for exchange.

 

Subject to certain limited exceptions, we will have no obligation to register the Initial Notes after we consummate the exchange offer. See "Exchange Offer — Terms of the Exchange Offer — Consequences of Failure to Exchange" and "Exchange Offer — Terms of the Exchange Offer — Acceptance of Initial Notes for Exchange; Delivery of New Notes."

Expiration Date:

 

The "expiration date" for the exchange offer is 5:00 p.m., New York City time, on                        , 2012, unless we extend it, in which case "expiration date" means the latest date and time to which the exchange offer is extended.

 

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Interest on the New Notes:

 

The New 2016 Notes will accrue interest at a rate of 3.625% per annum from and including the last interest payment date on which interest has been paid on the Initial 2016 Notes. No additional interest will be paid on Initial 2016 Notes tendered and accepted for exchange.

 

The New 2021 Notes will accrue interest at a rate of 5.125% per annum from and including the last interest payment date on which interest has been paid on the Initial 2021 Notes. No additional interest will be paid on Initial 2021 Notes tendered and accepted for exchange.

 

The New 2041 Notes will accrue interest at a rate of 6.875% per annum from and including the last interest payment date on which interest has been paid on the Initial 2041 Notes. No additional interest will be paid on Initial 2041 Notes tendered and accepted for exchange.

Conditions to the Exchange
Offer:

 

The exchange offer is subject to certain customary conditions, which we may waive. See "Exchange Offer — Terms of the Exchange Offer — Conditions".

Procedures for Tendering
Initial Notes:

 

If you wish to accept the exchange offer, you must submit the required documentation and effect a tender of Initial Notes pursuant to the procedures for book-entry transfer (or other applicable procedures), all in accordance with the instructions described in this prospectus and in the letter of transmittal. See "Exchange Offer — Terms of the Exchange Offer — Procedures for Tendering," "Exchange Offer — Terms of the Exchange Offer — Book-Entry Transfer," "Exchange Offer — Terms of the Exchange Offer — Exchanging Book-Entry Notes" and "Exchange Offer — Terms of the Exchange Offer — Guaranteed Delivery Procedures."

Guaranteed Delivery
Procedures:

 

If you wish to tender your Initial Notes, but cannot properly do so prior to the expiration date, you may tender your Initial Notes in accordance with the guaranteed delivery procedures described in "Exchange Offer — Terms of the Exchange Offer — Guaranteed Delivery Procedures."

Withdrawal Rights:

 

Tenders of Initial Notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on the expiration date. To withdraw a tender of Initial Notes, a written or facsimile transmission notice of withdrawal must be received by the exchange agent at its address set forth in the letter of transmittal prior to 5:00 p.m., New York City time, on the expiration date.

Acceptance of Initial Notes
and Delivery of New Notes:

 

Subject to certain conditions, any and all Initial Notes that are validly tendered in the exchange offer prior to 5:00 p.m., New York City time, on the expiration date will be accepted for exchange. The New Notes issued pursuant to the exchange offer will be delivered promptly following the expiration date. See "Exchange Offer — Terms of the Exchange Offer."

U.S. Federal and Canadian
Federal Income Tax Considerations:

 

The exchange of the Initial Notes for the New Notes will not constitute a taxable exchange for U.S. federal or Canadian federal income tax purposes. See "U.S. Federal Income Tax Considerations" and "Canadian Federal Income Tax Considerations."

Use of Proceeds:

 

We will not receive any proceeds from the exchange offer.

Exchange Agent:

 

Wells Fargo Bank, National Association is serving as the exchange agent.

Summary of Terms
of the New Notes:

 

The terms of the New Notes of each series are substantially identical to the terms of the Initial Notes of such series except that the New Notes:

 

will be registered under the Securities Act, and therefore will not contain restrictions on transfer;

 

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will not contain certain provisions relating to additional interest;

 

will bear a different CUSIP number from the Initial Notes of the respective series; and

 

will not entitle their holders to registration rights.

Issuer:

 

Kinross Gold Corporation

Notes Offered:

 

$250,000,000 aggregate principal amount of 3.625% notes due 2016.

 

$500,000,000 aggregate principal amount of 5.125% notes due 2021.

 

$250,000,000 aggregate principal amount of 6.875% notes due 2041.

Interest Rate:

 

The New 2016 Notes will bear interest at the rate of 3.625% per annum.

 

The New 2021 Notes will bear interest at the rate of 5.125% per annum.

 

The New 2041 Notes will bear interest at the rate of 6.875% per annum.

Interest Payment Dates:

 

Payable semi-annually in arrears on March 1 and September 1 of each year for each series of New Notes.

Maturity Date:

 

The New 2016 Notes will mature on September 1, 2016.

 

The New 2021 Notes will mature on September 1, 2021.

 

The New 2041 Notes will mature on September 1, 2041.

Ranking:

 

The New Notes will rank equally among themselves and with all of our other unsecured and unsubordinated indebtedness.

Guarantees:

 

The New Notes will be unconditionally and irrevocably guaranteed (the " Guarantees ") by each Kinross subsidiary that guarantees payment by Kinross of any of its indebtedness under its Credit Agreement (as defined herein) from time to time (the " Guarantor Subsidiaries "). Each subsidiary guarantee will be a senior unsecured obligation of the respective Guarantor Subsidiary and will rank:

 

•  equal in right of payment with existing and future unsecured senior debt of such Guarantor Subsidiary, including such Guarantor Subsidiary's guarantee of the Credit Agreement (as defined herein);

 

•  senior in right of payment to any future subordinated debt of such Guarantor Subsidiary; and

 

•  effectively junior in right of payment to any future debt of such Guarantor Subsidiary that is secured by liens on assets of such Guarantor Subsidiary to the extent of the value of such assets.

Optional and Tax
Redemption:

 

We may redeem the New Notes, in each case in whole or from time to time in part, on any date, at the prices described in this prospectus. See "Description of the Notes and Guarantees — Optional Redemption."

 

Any series of the New Notes may also be redeemed, in whole but not in part, under certain circumstances relating to changes in applicable tax laws as described under "Description of the Notes and Guarantees — Tax Redemption."

 

4


 

Change of Control:

 

Upon the occurrence of both (i) a change of control of Kinross and (ii) a downgrade within a specified period of a series of the New Notes below an investment grade rating by each of Moody's Investors Service Inc. and Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., Kinross will be required to make an offer to purchase such series of the New Notes at a price equal to 101% of the principal amount plus accrued and unpaid interest to, but not including, the date of repurchase. See "Description of the Notes and Guarantees — Change of Control Repurchase Event."

Additional Amounts:

 

All payments made by us with respect to the New Notes will be made without withholding or deduction for taxes unless required to be withheld or deducted by applicable law or by the interpretation or administration thereof. Subject to the exceptions and limitations set forth in this prospectus, if Kinross or a Guarantor Subsidiary is required to withhold or deduct for taxes from any payment made under or with respect to the New Notes, we will pay to any holder of such notes such additional amounts as may be necessary so that the net payment received by such holder after such withholding or deduction will not be less than the amount such holder would have received if such taxes had not been withheld or deducted. See "Description of the Notes and Guarantees — Payment of Additional Amounts."

Form:

 

Each series of the New Notes will be represented by one or more fully registered global notes deposited in book-entry form with, or on behalf of, The Depository Trust Company, and registered in the name of its nominee. See "Description of the Notes and Guarantees — Global Securities and Book-Entry System."

Governing Law:

 

The indenture is, and the New Notes and the related Guarantees are or will be, governed by and construed in accordance with the laws of the State of New York.

Risk Factors:

 

Investing in the New Notes involves risks. See "Risk Factors" beginning on page 6 of this prospectus.

 

5



RISK FACTORS

         In deciding whether to exchange Initial Notes for New Notes, you should carefully consider the risks and uncertainties described below and under the heading "Risk Factors" in Kinross' annual information form dated as of March 29, 2012 for the year ended December 31, 2011, which is incorporated by reference herein. These risks and uncertainties are not the only ones facing us. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business operations. If any such risks actually occur, our business, financial condition and operating results could be materially harmed.

         Our indebtedness could adversely affect our financial health and operating flexibility.

        As of December 31, 2011, we had an aggregate consolidated indebtedness outstanding of approximately $1,633.1 million. We also had an additional $208.9 million in letters of credit issued. In addition, our non-guarantor subsidiaries and joint ventures had indebtedness and other liabilities, including trade payables and excluding intercompany obligations, of $1,539.5 million, all of which ranked senior to the New Notes. As a result of this indebtedness, we are required to use a material portion of our cash flow to service principal and interest on our debt, which will limit the cash flow available for other business opportunities.

        Our indebtedness could have important consequences to us, including:

         Enforcing your rights as a holder of the New Notes or under the Guarantees across multiple jurisdictions may be difficult.

        The New Notes will be issued by Kinross, which is incorporated under the laws of the Province of Ontario, Canada, and guaranteed by the Guarantor Subsidiaries, which are incorporated in various jurisdictions, including Chile, Brazil, and the Provinces of Ontario and British Columbia, Canada. In the event of bankruptcy, insolvency or a similar event, proceedings could be initiated in any of these jurisdictions and in the jurisdiction of organization of a future guarantor of the New Notes. Your rights under the New Notes and the Guarantor Subsidiaries' Guarantees will thus be subject to the laws of several jurisdictions, and you may not be able to effectively enforce your rights in multiple bankruptcy, insolvency and other similar proceedings. Moreover, such multi-jurisdictional proceedings are typically complex and costly for creditors and often result in substantial uncertainty and delay in the enforcement of creditors' rights.

        In addition, the bankruptcy, insolvency, administrative, and other laws of the respective Guarantor Subsidiaries' jurisdictions of incorporation may be materially different from, or in conflict with, one another and those of the United States in certain areas, including creditors' rights, priority of creditors, the ability to obtain post-petition interest and the duration of the insolvency proceeding. The application of these various laws in multiple jurisdictions could trigger disputes over which jurisdictions' law should apply and could adversely affect your ability to enforce your rights and to collect payment in full under the New Notes, the guarantees and any security.

         Corporate benefit and financial assistance laws and other limitations on the Guarantees may adversely affect the validity and enforceability of the Guarantees of the New Notes.

        The Guarantees of the New Notes by the Guarantor Subsidiaries provide the holders of the New Notes with a direct claim against the assets of the Guarantor Subsidiaries. Each of the Guarantees, however, will be limited to the maximum amount that can be guaranteed by a particular Guarantor Subsidiary without rendering the

6


Guarantee, as it relates to that Guarantor Subsidiary, voidable or otherwise ineffective under applicable law. This provision may not be effective to protect the Guarantees from being voided under fraudulent transfer law. In a recent Florida bankruptcy case, this kind of provision was found to be ineffective to protect guarantees. In addition, enforcement of any of these Guarantees against any Guarantor Subsidiary will be subject to certain defenses available to guarantors generally. These laws and defenses include those that relate to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose or benefit, preservation of share capital, thin capitalization and regulations or defenses affecting the rights of creditors generally. If one or more of these laws and defenses are applicable, a Guarantor Subsidiary may have no liability or decreased liability under its Guarantee.

         The New Notes will be structurally subordinated to the liabilities of non-guarantor subsidiaries and joint ventures.

        Some, but not all, of our subsidiaries will guarantee the New Notes. Our joint ventures will not guarantee the New Notes. Generally, holders of indebtedness of, and trade creditors of, non-guarantor subsidiaries and joint ventures, including lenders under bank financing agreements, are entitled to payments of their claims from the assets of such subsidiaries and joint ventures before these assets are made available for distribution to Kinross or any Guarantor Subsidiary, as direct or indirect shareholder.

        Accordingly, in the event that any of the non-guarantor subsidiaries or joint venture entities become insolvent, liquidates or otherwise reorganizes:

        Our subsidiaries and joint ventures that will not guarantee the New Notes generated 49% of our total revenues and 49% of our operating cash flow for the year ended December 31, 2011 and represented 67% of our total assets (excluding intercompany assets) as of December 31, 2011. As of December 31, 2011, our non-guarantor subsidiaries and joint ventures had approximately $1,539.5 million of liabilities, including trade payables but excluding intercompany obligations, all of which would have ranked structurally senior to the New Notes and the guarantees.

         The New Notes do not restrict our ability to incur additional debt, repurchase our securities or to take other actions that could negatively affect holders of the New Notes.

        We are not restricted under the terms of the indenture governing the New Notes from incurring additional debt, including secured debt, or repurchasing our securities. In addition, the limited covenants applicable to the New Notes do not require us to achieve or maintain any minimum financial results relating to our financial position or results of operations. Our ability to recapitalize, incur additional debt and take a number of other actions that are not limited by the terms of the New Notes could have the effect of diminishing our ability to make payments on the New Notes when due.

         Changes in interest rates may cause the value of the New Notes to decline.

        Prevailing interest rates will affect the market price or value of the New Notes. The market price or value of the New Notes may decline as prevailing interest rates for comparable debt instruments rise, and increase as prevailing interest rates for comparable debt instruments decline.

         Credit ratings may change, adversely affecting the market value of the New Notes and our cost of capital.

        There is no assurance that the credit ratings assigned to the New Notes or Kinross will remain in effect for any given period of time or that any such rating will not be revised or withdrawn entirely by a rating agency. Real or anticipated changes in credit ratings assigned to the New Notes will generally affect the market price of the New Notes. In addition, real or anticipated changes in our credit ratings may also affect the cost at which we can access the capital markets.

7


         We may be unable to purchase the New Notes upon a change of control repurchase event.

        If a change of control repurchase event occurs in respect of the New Notes, we will be required to offer to purchase such New Notes for cash at a price equal to 101% of the principal amount of such New Notes plus accrued and unpaid interest on the New Notes repurchased to, but not including, the date of purchase in order to avoid an event of default under the indenture. See "Description of the Notes and Guarantees — Change of Control Repurchase Event." A change of control may also require us to make an offer to purchase certain of our other indebtedness and may give rise to the early termination of our Credit Agreement. We may not have sufficient funds to purchase all of the affected indebtedness and/or to repay the amounts owing under our Credit Agreement.

         An active trading market may not exist for the New Notes. The absence of a market for the New Notes could adversely affect the liquidity and value of your New Notes.

        A market may not exist for the New Notes, and if a market does exist, it may not be sufficiently liquid for your purposes. If an active, liquid market does not exist for the New Notes, the market price and liquidity of the New Notes may be adversely affected. The New Notes may trade at a discount from their initial offering price.

        The liquidity of the trading market, if any, and future trading prices of the New Notes will depend on many factors, including, among other things, prevailing interest rates, our operating results, financial performance and prospects, the market for similar securities and the overall securities market, and may be adversely affected by unfavorable changes in these factors. Historically, the market has been subject to disruptions that have caused volatility in prices. The market for the New Notes may be subject to disruptions that could have a negative effect on the holders of the New Notes, regardless of our operating results, financial performance or prospects.

         If you fail to exchange your Initial Notes, they will continue to be subject to transfer restrictions and may become less liquid.

        Initial Notes that you do not tender or we do not accept will, following the exchange offer, continue to be subject to transfer restrictions, and you may not offer or sell them except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities law. We will issue New Notes in exchange for the Initial Notes pursuant to the exchange offer only following the satisfaction of the procedures and conditions set forth in "Exchange Offer — Terms of the Exchange Offer — Conditions" and "Exchange Offer — Terms of the Exchange Offer — Procedures for Tendering". These procedures and conditions include timely receipt by the exchange agent of such Initial Notes (or a confirmation of book-entry transfer) and of a properly completed and duly executed letter of transmittal (or an agent's message from DTCC).

        Because we anticipate that most holders of Initial Notes will elect to exchange their Initial Notes, we expect that the liquidity of the market for any Initial Notes remaining after the completion of the exchange offer will be substantially limited. Any Initial Notes tendered and exchanged in the exchange offer will reduce the aggregate principal amount of the Initial Notes outstanding. Following the exchange offer, if you do not tender your Initial Notes you generally will not have any further registration rights, and your Initial Notes will continue to be subject to certain transfer restrictions. Accordingly, the liquidity of the market for the Initial Notes could be adversely affected.

8



KINROSS

        Kinross Gold Corporation is the seventh largest gold producer in the world based on 2011 production volumes. Our market capitalization was approximately $13.0 billion as of December 31, 2011. Based in Toronto, Ontario, Kinross was formed in 1993 from three predecessor mining companies, and now owns or has a joint venture interest in 10 operating mines and five development projects in Brazil, Chile, Ecuador, Russia, West Africa and the United States. We currently employ approximately 8,230 people. The Company has approximately 62.6 million ounces of gold, 84.9 million ounces of silver and 1.4 billion pounds of copper in proven and probable mineral reserves based on our mineral reserve and resource statement which we refer to in our Form 40-F for the period ended December 31, 2011.

        For the year ended December 31, 2011, we had revenues of $3.9 billion and a net loss attributed to common shareholders of $2.1 billion, with attributable gold-equivalent production of 2.6 million ounces. The net loss attributable to common shareholders of $2.1 billion included the impact of a $2.9 billion non-cash goodwill impairment charge related to Tasiast and Chirano. Our principal product is gold, produced in the form of doré that we send to refineries for final processing. As a by-product, we also produce limited amounts of silver (primarily from our La Coipa mine in Chile and our Kupol mine in Russia), which is converted into gold equivalents for reporting purposes based on relative market prices.

        The following table sets out our primary mining operations, along with our percentage ownership and attributable share of production and sales volume for the year ended December 31, 2011:

 
   
  Gold Equivalent Ounces
(Kinross Share)
(Year Ended
December 31, 2011)
 
 
  % Ownership
(as of December 31, 2011)
 
Operation
  Produced   Sold  

Fort Knox, Alaska, USA

    100     289,794     287,519  

Round Mountain, Nevada, USA

    50     187,444     185,385  

Kettle River-Buckhorn, USA

    100     175,292     178,269  

Kupol, Russia (100%)

    100     653,063     655,325  

Paracatu, Brazil

    100     453,396     449,605  

Crixás, Brazil

    50     66,583     63,757  

La Coipa, Chile

    100     178,287     191,032  

Maricunga, Chile

    100     236,249     230,828  

Tasiast, Mauritania

    100     200,619     196,961  

Chirano, Ghana (100%)

    90     261,846     262,677  
                 

Operations Total

          2,702,573     2,701,358  
                 

Less Kupol non-controlling interest (25% up to April 27, 2011, nil% thereafter) (1)

          (66,015 )   (63,802 )

Less Chirano non-controlling interest (10%) (2)

          (26,185 )   (26,269 )
                 

Attributable

          2,610,373     2,611,287  
                 

(1)
As of April 27, 2011, Kinross owns 100% of the Kupol operation. As such, the results up to April 27, 2011 reflect 75% and results thereafter reflect 100%.

(2)
The Government of Ghana has a 10% carried interest in Chirano.

        The principal executive offices of each of the registrants is c/o Kinross Gold Corporation, 25 York Street, 17th Floor, Toronto, Ontario, Canada M5J 2V5, (416) 365-5123.

9



EXCHANGE OFFER

Terms of the Exchange Offer

General

        In connection with the issuance of the Initial Notes, we entered into a registration rights agreement, dated as of August 22, 2011, with the initial purchasers of the Initial Notes. The following contains a summary of the provisions of the registration rights agreement. It does not contain all of the information that may be important to an investor in the New Notes. We refer you to the registration rights agreement, which has been filed as an exhibit to the registration statement of which this prospectus forms a part.

        Under the registration rights agreement, we agreed to use our commercially reasonable efforts to cause to become effective under the Securities Act, on or prior to 360 days after the closing of the offering of the Initial Notes, the registration statement of which this prospectus is a part with respect to a registered offer to exchange the Initial Notes of each series for New Notes of the respective series. We will keep the exchange offer open for at least 20 business days (or longer if required by law) after the date notice of the exchange offer is sent to holders of the Initial Notes.

        Upon the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal, all Initial Notes validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on the expiration date will be accepted for exchange. New Notes of each series will be issued in exchange for an equal principal amount of outstanding Initial Notes of the respective series accepted in the exchange offer. This prospectus, together with the letter of transmittal, is being sent to all holders as of the date of this prospectus. The exchange offer is not conditioned upon any minimum principal amount of Initial Notes being tendered for exchange. However, the obligation to accept Initial Notes for exchange pursuant to the exchange offer is subject to certain customary conditions as set forth herein under "— Conditions."

        Initial Notes shall be deemed to have been accepted as validly tendered when, as and if we have given oral (promptly confirmed in writing) or written notice thereof to Wells Fargo Bank, National Association, the exchange agent. The exchange agent will act as agent for the tendering holders of Initial Notes for the purposes of receiving the New Notes and delivering New Notes to such holders.

        Based on interpretations by the Staff of the Commission as set forth in no-action letters issued to third parties (including Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley & Co. Incorporated (available June 5, 1991), K-III Communications Corporation (available May 14, 1993) and Shearman & Sterling (available July 2, 1993), we believe that the New Notes issued pursuant to the exchange offer may be offered for resale, resold and otherwise transferred by any holder thereof (other than any such holder that is a broker-dealer or an "affiliate" of Kinross or any Guarantor Subsidiary within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided  that:

We have not sought, and do not intend to seek, a no-action letter from the Commission with respect to the effects of the exchange offer, and we cannot assure you that the Staff would make a similar determination with respect to the New Notes as it has in such no-action letters.

        By tendering Initial Notes in exchange for New Notes and executing the letter of transmittal, each holder will represent to us that:

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        If such holder is a broker-dealer, it will also be required to represent that the Initial Notes were acquired as a result of market-making activities or other trading activities and that it will deliver a prospectus in connection with any resale of New Notes. See "Plan of Distribution." Each holder, whether or not it is a broker-dealer, shall also represent that it is not acting on behalf of any person that could not truthfully make any of the foregoing representations contained in this paragraph. If a holder of Initial Notes is unable to make the foregoing representations, such holder may not rely on the applicable interpretations of the Staff of the Commission and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction unless such sale is made pursuant to an exemption from such requirements.

        Each broker-dealer that receives New Notes for its own account in exchange for Initial Notes where such Initial Notes were acquired by such broker-dealer as a result of market-making or other trading activities, must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act and that it has not entered into any arrangement or understanding with us or an affiliate of ours to distribute the New Notes in connection with any resale of such New Notes. See "Plan of Distribution."

        Upon consummation of the exchange offer, any Initial Notes not tendered will remain outstanding and continue to accrue interest but, subject to certain limited exceptions, holders of Initial Notes who do not exchange their Initial Notes for New Notes in the exchange offer will no longer be entitled to registration rights or certain payments of additional interest. In addition, such holders will not be able to offer or sell their Initial Notes, unless such Initial Notes are subsequently registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Subject to limited exceptions, we will have no obligation to effect a subsequent registration of the Initial Notes.

Expiration Date; Extensions; Amendments; Termination

        The expiration date shall be                                    , 2012 unless we, in our sole discretion, extend the exchange offer, in which case the expiration date shall be the latest date to which the exchange offer is extended.

        To extend the expiration date, we will notify the exchange agent of any extension by oral (promptly confirmed in writing) or written notice and will notify the holders of Initial Notes by means of a press release or other public announcement prior to 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. Such announcement will state that we are extending the exchange offer for a specified period of time.

        We reserve the right:

        Any such delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by oral (promptly confirmed in writing) or written notice to the exchange agent. If the exchange offer is amended in a manner determined by us to constitute a material change, we will promptly disclose such amendment in a manner reasonably calculated to inform the holders of the Initial Notes of such amendment and we will extend the exchange offer for a period of five to ten business days. Without limiting the manner in which we may choose to make public the announcement of any delay, extension, amendment or termination of the exchange offer, we shall have no obligation to publish, advertise or otherwise communicate any such public announcement, other than by making a timely release to an appropriate news agency.

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Interest on the New Notes

        The New 2016 Notes will accrue interest at the rate of 3.625% per annum, the New 2021 Notes will accrue interest at 5.125% per annum and the New 2041 Notes will accrue interest at 6.875% per annum. The New Notes will accrue interest from and including the last interest payment date on which interest was paid on the Initial Notes surrendered in exchange therefor; provided that if Initial Notes are surrendered for exchange on or after a record date for an interest payment date that will occur on or after the date of such exchange and as to which interest will be paid, interest on the New Notes received in exchange therefor will accrue from the date of such interest payment date. Interest on the New Notes is payable on March 1 and September 1, beginning on September 1, 2012. No additional interest will be paid on Initial Notes tendered and accepted for exchange.

Absence of Dissenter's Rights of Appraisal

        Holders of the Initial Notes do not have any dissenter's rights of appraisal in connection with the exchange offer.

Procedures for Tendering

        To tender in the exchange offer, a holder must complete, sign and date the applicable letter of transmittal or a facsimile thereof, have the signatures thereon guaranteed if required by the letter of transmittal and mail, or otherwise deliver, such letter of transmittal or such facsimile, together with any other required documents, to the exchange agent prior to 5:00 p.m., New York City time, on the expiration date. In addition, either:

        The method of delivery of Initial Notes, letter of transmittal and all other required documents is at the election and risk of the holders. If such delivery is by mail, it is recommended that registered mail, properly insured, with return receipt requested, be used. In all cases, sufficient time should be allowed to assure timely delivery. No Initial Notes, letters of transmittal or other required documents should be sent to us. Delivery of all Initial Notes, if applicable, letters of transmittal and other documents must be made to the exchange agent at its address set forth in the letter of transmittal. Holders may also request their respective brokers, dealers, commercial banks, trust companies or nominees to effect such tender for such holders.

        The tender by a holder of Initial Notes will constitute an agreement between such holder and us in accordance with the terms and subject to the conditions set forth herein and in the applicable letter of transmittal. Any beneficial owner whose Initial Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact such registered holder promptly and instruct such registered holder to tender on its behalf.

        Signatures on a letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed by any member firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor" institution within the meaning of Rule 17Ad-15 under the Exchange Act or an eligible institution unless the Initial Notes tendered pursuant thereto are tendered (1) by a registered holder of Initial Notes who has not completed the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" on the letter of transmittal or (2) for the account of an eligible institution.

        If a letter of transmittal is signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such person should so indicate when signing and, unless waived by us, evidence satisfactory to us of their authority to so act must be submitted with such letter of transmittal.

        All questions as to the validity, form, eligibility, time of receipt and withdrawal of the tendered Initial Notes will be determined by us in our sole discretion, which determination will be final and binding. We reserve the

12


absolute right to reject any and all Initial Notes not properly tendered or any Initial Notes which, if accepted, would, in the opinion of counsel for us, be unlawful. We also reserve the absolute right to waive any irregularities or conditions of tender as to particular Initial Notes. We will not waive any condition of the exchange offer with respect to an individual holder unless we waive that condition for all holders. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Initial Notes must be cured within such time as we shall determine. Neither we, the exchange agent nor any other person shall be under any duty to give notification of defects or irregularities with respect to tenders of Initial Notes, nor shall any of them incur any liability for failure to give such notification. Tenders of Initial Notes will not be deemed to have been made until such irregularities have been cured or waived. Any Initial Note received by the exchange agent that is not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned without cost to such holder by the exchange agent, unless otherwise provided in the letter of transmittal, promptly following the expiration date.

        In addition, we reserve the right, in our sole discretion, subject to the provisions of the indenture pursuant to which the Initial Notes were issued:

The terms of any such purchases or offers could differ from the terms of the exchange offer.

        Each broker-dealer that receives New Notes for its own account in exchange for Initial Notes where such Initial Notes were acquired by such broker-dealer as a result of market-making or other trading activities, must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act and that it has not entered into any arrangement or understanding with us, or an affiliate of ours, to distribute the New Notes in connection with any resale of such New Notes. See "Plan of Distribution."

Acceptance of Initial Notes for Exchange; Delivery of New Notes

        Upon satisfaction or waiver of all of the conditions to the exchange offer, all Initial Notes properly tendered will be accepted promptly after the expiration date and the New Notes will be issued promptly after acceptance of the Initial Notes. See "— Conditions." For purposes of the exchange offer, Initial Notes shall be deemed to have been accepted as validly tendered for exchange when, as and if we have given oral (promptly confirmed in writing) or written notice thereof to the exchange agent.

        For each Initial Note of any series accepted for exchange, the holder of such Initial Note will receive a New Note of the respective series having a principal amount equal to that of the surrendered Initial Note.

        In all cases, issuance of New Notes for Initial Notes that are accepted for exchange pursuant to the exchange offer will be made only after timely receipt by the exchange agent of:

        If any tendered Initial Notes are not accepted for any reason described in the terms and conditions of the exchange offer, such unaccepted or such non-exchanged Initial Notes will be returned promptly without expense to the tendering holder thereof (if in certificated form), or credited to an account maintained with such book-entry transfer facility after the expiration or termination of the exchange offer.

13


Book-Entry Transfer

        The exchange agent has established an account with respect to the Initial Notes at the book-entry transfer facility for purposes of the exchange offer. Any financial institution that is a participant in the book-entry transfer facility's systems may make book-entry delivery of Initial Notes by causing the book-entry transfer facility to transfer such Initial Notes into the exchange agent's account at the book-entry transfer facility in accordance with such book-entry transfer facility's procedures for transfer. However, although delivery of Initial Notes may be effected through book-entry transfer at the book-entry transfer facility, the letter of transmittal or facsimile thereof with any required signature guarantees and any other required documents must, in any case, be transmitted to and received by the exchange agent at the address set forth in the letter of transmittal on or prior to the expiration date or the guaranteed delivery procedures described below must be complied with.

Exchanging Book-Entry Notes

        The exchange agent and the book-entry transfer facility have confirmed that any financial institution that is a participant in the book-entry transfer facility may utilize the book-entry transfer facility's Automated Tender Offer Program (" ATOP ") procedures to tender Initial Notes.

        Any participant in the book-entry transfer facility may make book-entry delivery of Initial Notes by causing the book-entry transfer facility to transfer such Initial Notes into the exchange agent's account in accordance with the book-entry transfer facility's ATOP procedures for transfer. However, the exchange for the Initial Notes so tendered will only be made after a book-entry confirmation of the book-entry transfer of Initial Notes into the exchange agent's account and timely receipt by the exchange agent of an agent's message and any other documents required by the letter of transmittal. The term " agent's message " means a message, transmitted by the book-entry transfer facility and received by the exchange agent and forming part of a book-entry confirmation, which states that the book-entry transfer facility has received an express acknowledgment from a participant tendering Initial Notes that are the subject of such book-entry confirmation, that such participant has received and agrees to be bound by the terms of the letter of transmittal and that we may enforce such agreement against such participant.

Guaranteed Delivery Procedures

        If the procedures for book-entry transfer cannot be completed on a timely basis, a tender may be effected if:

Withdrawal of Tenders

        Tenders of Initial Notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on the expiration date.

14


        For a withdrawal to be effective, a written notice of withdrawal must be received by the exchange agent prior to 5:00 p.m., New York City time, on the expiration date at the address set forth in the letter of transmittal. Any such notice of withdrawal must:

        All questions as to the validity, form, eligibility and time of receipt of such notice will be determined by us, which determination shall be final and binding on all parties. Any Initial Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any Initial Notes which have been tendered for exchange but which are not exchanged for any reason will be returned to the tendering holder thereof without cost to such holder, in the case of physically tendered Initial Notes, or credited to an account maintained with the book-entry transfer facility for the Initial Notes promptly after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn Initial Notes may be re-tendered by following one of the procedures described under "— Procedures for Tendering" and "— Book-Entry Transfer" above at any time prior to 5:00 p.m., New York City time, on the expiration date.

Conditions

        Notwithstanding any other provisions of the exchange offer, or any extension of the exchange offer, we will not be required to accept for exchange, or to exchange any New Notes for, any Initial Notes and we may terminate the exchange offer or, at our option, modify, extend or otherwise amend the exchange offer, if any of the following conditions are not satisfied on or prior to the expiration date:

15


        The foregoing conditions are for our sole benefit and may be asserted by us, regardless of the circumstances giving rise to any such condition, or may be waived by us, in whole or in part, at any time and from time to time in our reasonable discretion. All such conditions must be satisfied or waived by us, as applicable, at or before the expiration of the exchange offer.

        If any of the foregoing conditions are not satisfied, we may, at any time on or prior to the expiration date:

        We will not accept for exchange any Initial Notes tendered, and no New Notes will be issued in exchange for any such Initial Notes, if at such time any stop order shall be threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indenture under the Trust Indenture Act of 1939, as amended. We are required to use our commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest practicable date.

        In addition, subject to applicable law, we may in our absolute discretion terminate the exchange offer for any other reason.

Exchange Agent

        Wells Fargo Bank, National Association has been appointed as exchange agent for the exchange offer. Questions and requests for assistance and requests for additional copies of this prospectus, or of the letter of transmittal, should be directed to the exchange agent as provided in the letter of transmittal.

Fees and Expenses

        The expenses of soliciting tenders pursuant to the exchange offer will be borne by us. The principal solicitation for tenders pursuant to the exchange offer is being made by mail; however, additional solicitations may be made by telephone, telecopy or in person by our officers and regular employees.

16


        We will not make any payments to brokers, dealers or other persons soliciting acceptances of the exchange offer. We will, however, pay the exchange agent reasonable and customary fees for its services and will reimburse the exchange agent for its reasonable out-of-pocket expenses in connection therewith. We may also pay brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding copies of the prospectus and related documents to the beneficial owners of the Initial Notes, and in handling or forwarding tenders for exchange.

        The expenses to be incurred by us in connection with the exchange offer will be paid by us, including fees and expenses of the exchange agent and trustee and accounting, legal, printing and related fees and expenses.

        We will pay all transfer taxes, if any, applicable to the exchange of Initial Notes pursuant to the exchange offer. If, however, New Notes or Initial Notes for principal amounts not tendered or accepted for exchange are to be registered or issued in the name of any person other than the registered holder of the Initial Notes tendered, or if tendered Initial Notes are registered in the name of any person other than the person signing the letter of transmittal, or if a transfer tax is imposed for any reason other than the exchange of Initial Notes pursuant to the exchange offer, then the amount of any such transfer taxes imposed on the registered holder or any other persons will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed directly to such tendering holder.

Consequences of Failure to Exchange

        Holders of Initial Notes who do not exchange their Initial Notes for New Notes pursuant to the exchange offer will continue to be subject to the restrictions on transfer of such Initial Notes as set forth in the legend thereon as a consequence of the issuance of the Initial Notes pursuant to exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. The Initial Notes may not be offered, sold or otherwise transferred, except in compliance with the registration requirements of the Securities Act, pursuant to an exemption from registration under the Securities Act or in a transaction not subject to the registration requirements of the Securities Act, and in compliance with applicable state securities laws. We do not currently anticipate that we will register the Initial Notes under the Securities Act. To the extent that Initial Notes are tendered and accepted in the exchange offer, the trading market for untendered and tendered but unaccepted Initial Notes could be adversely affected. See "Risk Factors — If you fail to exchange your Initial Notes, they will continue to be restricted securities and may become less liquid."

17



USE OF PROCEEDS

        We will not receive any proceeds from the exchange offer. In consideration for issuing New Notes, we will receive in exchange Initial Notes of like principal amount, the terms of which are identical in all material respects to the New Notes. Initial Notes surrendered in exchange for New Notes will be retired and cancelled and cannot be reissued. Accordingly, issuance of the New Notes will not result in any increase in our indebtedness and will evidence the same continuing indebtedness as the Initial Notes. We have agreed to bear all fees and expenses related to the exchange offer. No underwriter is being used in connection with the exchange offer.

18



CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES

        Kinross' unaudited ratio of earnings to fixed charges for the periods indicated below was as follows, with the periods ending prior to January 1, 2010 calculated, based on information prepared according to US GAAP, and the periods ended December 31, 2011 and December 31, 2010 calculated, based on information prepared according to IFRS:

 
  2007   2008   2009   2010   2011  

Ratio of earnings to fixed charges

    10.4    

(a)
  21.7     25.5    

(a)

(a)
Due to our losses for the years ended December 31, 2008 and 2011, the ratio of earnings to fixed charges was negative for these years. The loss for the year ended December 31, 2008 included the impact of a $994.1 million non-cash goodwill impairment charge. The loss for the year ended December 31, 2011 included the impact of a $2,937.6 million non-cash goodwill impairment charge.

19



CONSOLIDATED CAPITALIZATION

        The following table sets forth our consolidated cash, cash equivalents, marketable securities and other short-term investments and capitalization as of December 31, 2011. There have been no material changes in the share and loan capital of Kinross, on a consolidated basis, since December 31, 2011. The table below (which reflects financial information prepared in accordance with IFRS) should be read in conjunction with the audited consolidated financial statements of Kinross as at and for the year ended December 31, 2011, including the notes thereto and the related management's discussion and analysis.

 
  As of December 31, 2011  
 
  (in millions, unaudited)
 

Cash, cash equivalents, marketable securities and other short-term investments

  $ 1,767.3  
       

Long Term Debt:

       

Senior convertible notes

    420.7  

Corporate term loan facility

    22.4  

Paracatu finance leases

    12.8  

Crixás bank loan and other

    1.7  

Kupol project loan

    194.1  

Senior notes due 2016

    246.6  

Senior notes due 2021

    490.2  

Senior notes due 2041

    244.6  
       

Total Long-Term Debt

    1,633.1  
       

Common Shareholders' Equity

       

Common share capital and common share purchase warrants

    14,656.6  

Contributed surplus

    81.4  

Accumulated deficit

    (2,249.9 )

Accumulated other comprehensive loss

    (97.7 )
       

Total Common Shareholders' Equity

    12,390.4  

Non-controlling Interest

    80.3  
       

Total Shareholders' Equity

    12,470.7  
       

Total capitalization

  $ 14,103.8  
       

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EARNINGS COVERAGE

        The following earnings coverage ratio is calculated on a consolidated basis using financial information prepared in accordance with IFRS for the twelve-month period ended December 31, 2011 and is based on audited financial information.

        Our interest requirements on our consolidated long-term debt were $71.2 million for the 12 months ended December 31, 2011 (including amounts capitalized during the period). Our loss before interest expense and income taxes attributed to common shareholders for the 12 months ended December, 2011 was $1,531.5 million which is (21.5) times our interest requirements for this period. Due to our loss for the year ended December 31, 2011, the earnings coverage ratio was negative for this period. The loss for the year ended December 31, 2011 included the effect of a $2,937.6 million non-cash goodwill impairment charge relating to Tasiast and Chirano. Had this charge been excluded from the calculation, the earnings coverage ratio would have been 19.7 as at December 31, 2011.

        In order to achieve an earnings coverage ratio of 1:1 as at December 31, 2011, Kinross would need additional earnings before interest and income taxes of $1,602.7 million.

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DESCRIPTION OF THE NOTES AND GUARANTEES

        The following description is a summary of the material provisions of the New Notes, the Guarantees and the indenture. It does not purport to be complete and is qualified in its entirety by the indenture, because the indenture, and not this description, defines your rights as a holder of the Notes. The indenture has been filed as an exhibit to the registration statement of which this prospectus forms a part. You should refer to all the provisions of the indenture, including the definition of certain terms used therein. Terms used herein that are otherwise not defined shall have the meanings given to them in the indenture. Such defined terms shall be incorporated herein by reference. In this section the terms "Kinross," "we," "our," and "us" refer only to Kinross Gold Corporation and not to any of its subsidiaries.

General

        The Initial 2016 Notes were initially issued in an aggregate principal amount of $250,000,000. The New 2016 Notes are unsecured, unsubordinated obligations of Kinross evidencing the same continuing indebtedness as the Initial 2016 Notes and will mature on September 1, 2016. The New 2016 Notes will bear interest at the rate of 3.625% per annum from and including the most recent interest payment date to which interest has been paid or provided for, payable semi-annually in arrears on March 1 and September 1 of each year, to the persons in whose names the New 2016 Notes are registered at the close of business on the preceding February 15 or August 15, as the case may be.

        The Initial 2021 Notes were initially issued in an aggregate principal amount of $500,000,000. The New 2021 Notes are unsecured, unsubordinated obligations of Kinross evidencing the same continuing indebtedness as the Initial 2021 Notes and will mature on September 1, 2021. The New 2021 Notes will bear interest at the rate of 5.125% per annum from and including the most recent interest payment date to which interest has been paid or provided for, payable semi-annually in arrears on March 1 and September 1 of each year, to the persons in whose names the New 2021 Notes are registered at the close of business on the preceding February 15 or August 15, as the case may be.

        The Initial 2041 Notes were initially issued in an aggregate principal amount of $250,000,000. The New 2041 Notes are unsecured, unsubordinated obligations of Kinross evidencing the same continuing indebtedness as the Initial 2041 Notes and will mature on September 1, 2041. The New 2041 Notes will bear interest at the rate of 6.875% per annum from and including the most recent interest payment date to which interest has been paid or provided for, payable semi-annually in arrears on March 1 and September 1 of each year, to the persons in whose names the New 2041 Notes are registered at the close of business on the preceding February 15 or August 15, as the case may be.

        All payments will be made without withholding or deduction for or on account of Taxes unless required by law or the interpretation or administration thereof by the relevant government authority or agency. If we are so required to withhold or deduct any amount for or on account of Taxes, we will pay as additional interest such additional amounts, as necessary, so that the net amount received by each holder of New Notes after the withholding or deduction is not less than the amount that each holder of New Notes would have received in the absence of the withholding or deduction. See "— Payment of Additional Amounts." If interest or principal on the New Notes is payable on a Saturday, Sunday or any other day when banks are not open for business in The City of New York, we will make the payment on the next business day, and no interest will accrue as a result of the delay in payment.

        Interest on the New Notes will accrue on the basis of a 360-day year consisting of twelve 30-day months from and including the last interest payment date on which interest has been paid.

        The New Notes will be payable at the office of the paying agent maintained by us for such purpose, in the Borough of Manhattan, The City of New York, which initially will be the office or agency of the Trustee at 45 Broadway, 14th Floor, New York, New York 10006. New Notes may be presented for exchange or registration of transfer at the office of the registrar, which initially will be such office of the Trustee. We will not charge a service fee for any registration of transfer or exchange of the New Notes, but we may require payment of a sum sufficient to cover any tax, assessment or other governmental charge payable in connection therewith.

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Guarantees

Subsidiary Guarantees

        The payment of principal of and interest and additional amounts, if any, on the New Notes will be fully and unconditionally guaranteed by the Guarantor Subsidiaries. Any payments made by the Guarantor Subsidiaries with respect to a note or guarantee will be made without withholding or deduction for or on account of Taxes unless required by law or by the interpretation or administration thereof by the relevant government authority or agency. If a Guarantor Subsidiary is so required to withhold or deduct any amount for or on account of Taxes, it will pay as additional interest such additional amounts, as necessary, so that the net amount received by each holder of New Notes after the withholding or deduction is not less than the amount that each holder of New Notes would have received in the absence of the withholding or deduction. See "— Payment of Additional Amounts."

        The indenture limits the obligations of each Guarantor Subsidiary under its guarantee of the New Notes to an amount not to exceed the maximum amount that can be guaranteed by such Guarantor Subsidiary by law or without resulting in its obligations under guarantee being voidable or unenforceable under applicable laws relating to fraudulent transfer, or under similar laws affecting the rights of creditors generally.

Additional Guarantees

        Kinross shall cause each subsidiary that becomes a borrower or Guarantor Subsidiary under the Credit Agreement, to become a Guarantor Subsidiary of the New Notes.

Release of Guarantees

        Under the indenture, a Guarantor Subsidiary will be released and relieved of its obligations under its Guarantee in respect of the New Notes, and such Guarantee will be terminated, upon our written request (without the consent of the trustee) if (i) the Guarantor Subsidiary is no longer a borrower or Guarantor Subsidiary under the Credit Agreement or will be released and relieved of its obligations under the Credit Agreement concurrently with the release of the guarantee of the New Notes and (ii) upon satisfaction and discharge of the indenture or defeasance or covenant defeasance in accordance with the terms of the indenture.

Further Issuance

        We may from time to time without notice to, or the consent of, the holders of the New Notes of any series, create and issue additional New Notes of any series under the indenture, equal in rank to the outstanding New Notes of that series in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new notes, or except, in some cases, for the first payment of interest following the issue date of the new notes) so that the new notes may be consolidated and form a single series with the outstanding New Notes of that series, and have the same terms as to status, redemption and otherwise as New Notes of that series issued under this prospectus.

Ranking

        The New Notes will be our unsecured senior obligations and will rank equally with all of our other unsecured senior obligations from time to time outstanding. The Guarantees will be unsecured senior obligations of the respective Guarantor Subsidiary and will rank equally with all other unsecured senior obligations of the respective Guarantor Subsidiary from time to time outstanding. The New Notes will be effectively subordinated to all indebtedness and other liabilities of our non-guarantor subsidiaries, and the New Notes and the Guarantees will be effectively subordinated to any secured indebtedness and other secured liabilities of ours and the Guarantor Subsidiaries in each case to the extent of the assets securing such indebtedness and other liabilities.

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Optional Redemption

New 2016 Notes

        The New 2016 Notes will be redeemable as a whole or in part, at our option, at any time prior to September 1, 2016, at a redemption price equal to the greater of (i) 100% of the principal amount of the New 2016 Notes called for redemption and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on such New 2016 Notes (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 40 basis points, plus, in each case, accrued interest thereon to, but not including, the date of redemption.

New 2021 Notes

        The New 2021 Notes will be redeemable as a whole or in part, at our option, at any time prior to June 1, 2021 (three months prior to the maturity date), at a redemption price equal to the greater of (i) 100% of the principal amount of the New 2021 Notes called for redemption and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on such New 2021 Notes (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 45 basis points, plus, in each case, accrued interest thereon to, but not including, the date of redemption.

        On or after June 1, 2021 (three months prior to the maturity date), the New 2021 Notes may be redeemed in whole, but not in part, at a redemption price equal to 100% of the principal amount of the New 2021 Notes plus accrued interest thereon to, but not including, the date of redemption.

New 2041 Notes

        The New 2041 Notes will be redeemable as a whole or in part, at our option, at any time prior to March 1, 2041 (six months prior to the maturity date), at a redemption price equal to the greater of (i) 100% of the principal amount of the New 2041 Notes called for redemption and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on such New 2041 Notes (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points, plus, in each case, accrued interest thereon to, but not including, the date of redemption.

        On or after March 1, 2041 (six months prior to the maturity date), the New 2041 Notes may be redeemed in whole, but not in part, at a redemption price equal to 100% of the principal amount of the New 2041 Notes plus accrued interest thereon to, but not including, the date of redemption.

Redemption Procedures

        We will give you at least 30 days (but not more than 60 days) prior notice of any redemption. If less than all of the New Notes are redeemed, the trustee will select the New Notes to be redeemed by a method determined by the trustee to be fair and appropriate and in accordance with the procedures of DTCC.

        On or before 10:00 a.m., New York City time, on the redemption date, we will deposit with the trustee money sufficient to pay the redemption price and accrued interest on the New Notes to be redeemed on such date. On and after the redemption date, interest will cease to accrue on any New Notes that have been called for redemption (unless we default in the payment of the redemption price and accrued interest). The redemption price will be calculated by the Independent Investment Banker, as provided below, and we, the trustee and any paying agent for the New Notes will be entitled to conclusively rely on such calculation.

        If notice of redemption has been given as provided in the indenture and funds for the redemption of the New Notes called for redemption have been made available on the redemption date referred to in such notice, such New Notes will cease to bear interest on the date fixed for such redemption specified in such notice and the only right of the holders of the New Notes will be to receive payment of the redemption price plus accrued interest to, but not including, the date of redemption.

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        For purposes of the discussion of optional redemption, the following definitions are applicable:

        " Comparable Treasury Issue " means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the New Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such New Notes.

        " Comparable Treasury Price " means, with respect to any redemption date, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if we obtain fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations.

        " Independent Investment Banker " means one of the Reference Treasury Dealers appointed by us.

        " Reference Treasury Dealer Quotations " means, with respect to each Reference Treasury Dealer and any redemption date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to us by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such redemption date.

        " Reference Treasury Dealer " means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC and Morgan Stanley & Co. LLC, or their respective affiliates which are primary U.S. government securities dealers, and two other primary U.S. government securities dealers in the United States (each a "primary treasury dealer") selected by us, and their respective successors; provided , however , that if any of the foregoing or their affiliates shall cease to be a primary treasury dealer, we shall substitute another primary treasury dealer.

        " Treasury Rate " means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

Change of Control Repurchase Event

        If a Change of Control Repurchase Event occurs with respect to a series of New Notes, unless we have exercised our right to redeem the New Notes of that series as described above, we will be required to make an offer to each holder of the New Notes of that series to repurchase all or any part (in multiples of $1,000 with no note of a principal amount of $2,000 or less purchased in part) of that holder's New Notes of that series at a repurchase price in cash equal to 101% of the aggregate principal amount of the New Notes repurchased plus any accrued and unpaid interest on the New Notes repurchased to, but not including, the date of repurchase.

        Within 45 days following any Change of Control Repurchase Event or, at our option, prior to any Change of Control but after the public announcement of the Change of Control, we will mail a notice to each holder, with a copy to the trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the New Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control occurring on or prior to the payment date specified in the notice.

        We will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the New Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the New Notes, we will comply with the applicable securities laws and regulations and will not be deemed to have breached our obligations under the Change of Control Repurchase Event provisions of the New Notes by virtue of such conflict.

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        On the repurchase date following a Change of Control Repurchase Event, we will, to the extent lawful:

        The trustee or the paying agent, as applicable, will promptly pay to each holder of the New Notes properly tendered the purchase price for the New Notes, and the trustee will promptly authenticate and deliver to each holder a new note equal in principal amount to any unpurchased portion of any New Notes surrendered; provided that each new note will be in a minimum principal amount of $2,000 and integral multiples of $1,000.

        We will not be required to make an offer to repurchase the New Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by us and such third party purchases all New Notes properly tendered and not withdrawn under its offer.

        Prior to the occurrence of a Change of Control Repurchase Event, the provisions under the indenture relating to our obligation to make an offer to repurchase upon a Change of Control Repurchase Event may be waived or modified with the written consent of the holders of a majority in principal amount of the New Notes of the relevant series.

        For purposes of the foregoing discussion of an offer to repurchase, the following definitions are applicable:

        " Change of Control " means the occurrence of any of the following:

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        Notwithstanding the foregoing, any holding company whose only significant asset is capital stock of us or any of our direct or indirect parent companies shall not itself be considered a "person" or "group" for purposes of clause (2) above.

        The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of "all or substantially all" of our and our subsidiaries' properties or assets taken as a whole. Although there is a limited body of case law interpreting the phrase "substantially all", there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of New Notes to require us to make an offer to repurchase such holder's New Notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of our and our subsidiaries' assets taken as a whole to another person or group may be uncertain.

        " Change of Control Repurchase Event " means each of the Rating Agencies downgrade their ratings of a series of New Notes by at least one "notch" and, following such downgrades, the New Notes of such series are rated below Investment Grade by each of the Rating Agencies on any date during the period (the "trigger period") commencing on the date of the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which trigger period shall be extended so long as the rating of the New Notes of such series is under publicly announced consideration for a possible downgrade by any of the Rating Agencies). Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.

        " Continuing Director " means, as of any date of determination, any member of our board of directors who:

        " Investment Grade " means a rating of Baa3 or better by Moody's (or its equivalent under any successor rating categories of Moody's); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and the equivalent investment grade credit rating from any additional rating agency or rating agencies selected by us.

        " Moody's " means Moody's Investors Service, Inc., a subsidiary of Moody's Corporation, and its successors.

        " Rating Agency " means each of Moody's and S&P; provided , that if either Moody's or S&P ceases to rate the New Notes or fails to make a rating of the New Notes publicly available for any reason that is beyond our control, we may select (as certified by a resolution of our board of directors) a "nationally recognized statistical rating organization" within the meaning of Section 3(a)(62) of the Exchange Act, as a replacement agency for Moody's or S&P, or both of them, as the case may be.

        " S&P " means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies Inc., and its successors.

        " Voting Stock " of any specified "person" (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.

        The Change of Control Repurchase Event feature of the New Notes may in certain circumstances make more difficult or discourage a sale or takeover of Kinross and, therefore, the removal of incumbent management. Subject to the limitations discussed below, we could, in the future, enter into certain transactions, including acquisitions, refinancings or other recapitalizations, that would not constitute a Change of Control Repurchase Event under the New Notes, but that could substantially increase the amount of indebtedness outstanding at such time or otherwise adversely affect our capital structure or credit ratings on the New Notes.

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        We may not have sufficient funds to repurchase all the New Notes tendered for repurchase upon a Change of Control Repurchase Event. See "Risk Factors."

Certain Covenants

Definitions

        Set forth below is a summary of certain of the defined terms used in the indenture. We urge you to read the indenture for the full definition of all such terms.

        " Consolidated Net Tangible Assets " means the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (1) all current liabilities (excluding any portion thereof constituting Funded Debt); and (2) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent consolidated balance sheet of Kinross and computed in accordance with GAAP.

        " Credit Agreement " means the Fourth Amended and Restated Credit Agreement, dated as of March 31, 2011, among Kinross Gold Corporation, Kinross Gold U.S.A., Inc., Round Mountain Gold Corporation and Kinross Brasil Minercaçao S.A., the lending institutions named therein and The Bank of Nova Scotia, as administrative agent, as amended, extended, renewed, restated, supplemented, refunded, replaced or otherwise modified from time to time by one or more credit facilities, and any agreement entered into in substitution therefor.

        " Funded Debt " means, as applied to any person, all indebtedness created or assumed by such person maturing after, or renewable or extendable at the option of such person beyond, 12 months from the date of creation thereof.

        " GAAP " means IFRS as issued by the IASB in effect from time to time or, if different and then used by us for our public financial reporting purposes in Canada, generally accepted accounting principles in Canada or the United States.

        " Indebtedness " means all obligations for borrowed money represented by New Notes, bonds, debentures or similar evidence of indebtedness and obligations for borrowed money evidenced by credit, loan or other like agreements.

        " Lien " means any deed of trust, mortgage, charge, hypothec, assignment, pledge, lien, vendor's privilege, vendor's right of reclamation or other security interest or encumbrance of any kind incurred or assumed in order to secure payment of Indebtedness.

        " person " means any individual, corporation, partnership, joint venture, association, limited liability company, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

        " Principal Property " means the interest of Kinross or any Restricted Subsidiary in any (a) mineral property or (b) manufacturing or processing plant, building, structure, dam or other facility, together with the land upon which it is erected and fixtures comprising a part thereof, whether owned as of the date of the indenture or thereafter acquired or constructed by Kinross or any Restricted Subsidiary, the net book value of which interest, in each case, on the date as of which the determination is being made, is an amount that exceeds 7% of Consolidated Net Tangible Assets, except any such mineral property, plant, building, structure, dam or other facility or any portion thereof, together with the land upon which it is erected and fixtures comprising a part thereof, (i) acquired or constructed principally for the purpose of controlling or abating atmospheric pollutants or contaminants, or water, noise, odor or other pollution or (ii) which the board of directors of Kinross by resolution declares is not of material importance to the total business conducted by Kinross and its Restricted Subsidiaries considered as one enterprise.

        " Restricted Subsidiary " means (1) any Subsidiary of Kinross which owns or leases a Principal Property; and (2) any Subsidiary of Kinross engaged primarily in the business of owning or holding securities of Restricted Subsidiaries.

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        " Subsidiary " means, at any relevant time, any person of which the voting shares or other interests carrying more than 50% of the outstanding voting rights attached to all outstanding voting shares or other interests are owned, directly or indirectly, by a person and/or one or more subsidiaries of such person.

Negative Pledge

        For so long as any New Notes are outstanding, we will not, and we will not permit any Restricted Subsidiary to, create, incur, issue, assume or otherwise have outstanding any Lien on or over any Principal Property now owned or hereafter acquired by Kinross or a Restricted Subsidiary to secure any Indebtedness, or on shares of stock or Indebtedness of any Restricted Subsidiary now owned or hereafter acquired by Kinross or a Restricted Subsidiary to secure any Indebtedness, unless at the time thereof or prior thereto all New Notes then outstanding (together with, if and to the extent we so determine, any other Indebtedness then existing or thereafter created), are secured equally and ratably with (or prior to) any and all such Indebtedness for so long as such Indebtedness is so secured by such Lien; provided, however, such negative pledge will not apply to or operate to prevent or restrict the following permitted Liens:

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        For purposes of the foregoing, the giving of a guarantee that is secured by a Lien on a Principal Property or on shares of stock or Indebtedness of any Restricted Subsidiary, and the creation of a Lien on a Principal Property or on shares of stock or Indebtedness of any Restricted Subsidiary to secure Indebtedness that existed prior to the creation of such Lien, will be deemed to involve the creation of Indebtedness in an amount equal to the principal amount guaranteed or secured by such Lien but the amount of Indebtedness secured by Liens on any Principal Property and shares of stock and Indebtedness of Restricted Subsidiaries will be computed without cumulating the underlying Indebtedness with any guarantee thereof or Lien securing the same.

Consolidation, Amalgamation and Merger and Sale of Assets

        The indenture provides that we may not consolidate or amalgamate with or merge into or enter into any statutory arrangement with any other person, or, directly or indirectly, convey, transfer or lease all or substantially all our properties and assets to any person, unless:

        If, as a result of any such transaction, any of our Principal Properties become subject to a Lien, then, unless such Lien could be created pursuant to the indenture provisions described under "— Negative Pledge" above without equally and ratably securing the New Notes under the indenture, we, simultaneously with or prior to such transaction, will cause the debt securities, including the New Notes, to be secured equally and ratably with or prior to the Indebtedness secured by such Lien.

Payment of Additional Amounts

        All payments made by or on behalf of us under or with respect to the New Notes (or by any Guarantor Subsidiary with respect to any Guarantee) will be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively " Taxes ") imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or any other jurisdiction in which Kinross or any Guarantor Subsidiary is organized or any political subdivision thereof or any authority or agency therein or thereof having power to tax (each a " Relevant Taxing Jurisdiction "), unless we or a Guarantor

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Subsidiary is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the Relevant Taxing Jurisdiction.

        If Kinross or a Guarantor Subsidiary is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to any New Notes or Guarantees, Kinross or the relevant Guarantor Subsidiary, as the case may be, will pay to each holder of such New Notes as additional interest such additional amounts (" Additional Amounts ") as may be necessary so that the net amount received by each such holder after such withholding or deduction will not be less than the amount such holder would have received if such Taxes had not been required to be withheld or deducted; provided , however , that the foregoing obligation to pay Additional Amounts does not apply to:

        Kinross or the relevant Guarantor Subsidiary will (i) make such withholding or deduction of Taxes as is required under applicable law or the interpretation or administration thereof by the Relevant Taxing Jurisdiction, (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance

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with applicable law and (iii) furnish to the trustee reasonable evidence of the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes.

        If we or a Guarantor Subsidiary will be obligated to pay Additional Amounts with respect to any payment under or with respect to the New Notes, we or such Guarantor Subsidiary will deliver to the trustee and paying agent an officer's certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the payment of such Additional Amounts to holders of New Notes on the payment date. Each such officer's certificate shall be relied upon until receipt of a new officer's certificate addressing such matters. To the extent permitted by law, the trustee shall have no obligation to determine or obtain knowledge of when Additional Amounts are paid or owed.

        Wherever in the indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable under or with respect to the New Notes, such mention will be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

Tax Redemption

        The New Notes of each series will be subject to redemption at any time, in whole but not in part, at a redemption price equal to 100% of the principal amount thereof together with accrued and unpaid interest to, but not including, the date fixed for redemption, upon the giving of a notice as described below, if we determine that:

and, in any such case, we determine that such obligation cannot be avoided by the use of reasonable measures available to us (which shall not include the substitution of an obligor in respect of the New Notes).

        In the event that we elect to redeem the New Notes of any series pursuant to the provisions set forth in the preceding paragraph, we will deliver to the trustee an officers' certificate, signed by two authorized officers, stating that we are entitled to redeem such New Notes pursuant to their terms.

        Notice of intention to redeem the New Notes as provided above will be given not more than 60 nor less than 30 days prior to the date fixed for redemption and will specify the date fixed for redemption.

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Provision of Financial Information

        We will file with the trustee, within 30 days after such reports or information are filed with the SEC, copies, which may be in electronic format, of our annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which we file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If we are not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act and do not otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, we will continue to provide the trustee (i) annual reports containing audited financial statements and (ii) quarterly reports for the first three quarters of each fiscal year containing unaudited financial information, in each case in accordance with Canadian disclosure requirements and GAAP.

Events of Default

        Each of the following shall constitute events of default under the indenture with respect to any series of New Notes:

        If an acceleration in an amount less than $100,000,000 of any of our indebtedness or that of our subsidiaries that guarantee the New Notes or our credit facility occurs, the holders of the New Notes will not have the right to accelerate the maturity of their notes even though in some such cases other creditors will have that right.

        The indenture provides that the trustee must give notice of a default of which it has actual knowledge to the registered holders of the New Notes of the relevant series within 90 days of occurrence.

        If an event of default relating to certain events of bankruptcy, insolvency or reorganization occurs, the principal of and interest on all the New Notes will become immediately due and payable without any action on the part of the trustee or any holder. If any other event of default for the New Notes occurs and is continuing, the trustee or the holders of at least 25% in principal amount of the outstanding securities of all series issued under the indenture and affected by the event of default (voting as a single class) may declare the principal of and all accrued and unpaid interest on the New Notes immediately due and payable. The holders of a majority in principal amount of the outstanding securities of all series issued under the indenture and affected by the event of default may in some cases rescind this accelerated payment requirement.

        A holder of New Notes of any series may pursue any remedy under the indenture only if:

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        This provision does not, however, affect the right of a holder of a note to sue for enforcement of any overdue payment.

        Holders of a majority in principal amount of the outstanding securities of all series issued under the indenture and affected by the event of default may direct the time, method and place of conducting any proceeding for any remedy available to the trustee and exercising any trust or power conferred on the trustee with respect to the New Notes of that series. The trustee, however, may refuse to follow any such direction that conflicts with law or the indenture. In addition, prior to acting at the direction of holders, the trustee will be entitled to be indemnified by those holders against any loss and expenses caused thereby.

        The indenture requires us to deliver each year to the trustee a written statement as to our compliance with the covenants contained in the indenture.

Trustee

        If an event of default occurs under the indenture and is continuing, the trustee will be required to use the degree of care and skill of a prudent person in the conduct of that person's own affairs. The trustee will become obligated to exercise any of its powers under the indenture at the written request of any of the holders of any New Notes only after the holders have offered the trustee indemnity satisfactory to it.

        The indenture contains limitations on the right of the trustee, if it becomes our creditor, to obtain payment of claims or to realize on certain property received for any such claim, as security or otherwise. The trustee is permitted to engage in other transactions with us. If, however, it acquires any conflicting interest, it must eliminate that conflict or resign within 90 days after ascertaining that it has a conflicting interest and after the occurrence of a default under the indenture, unless the default has been cured, waived or otherwise eliminated within the 90-day period.

Modification and Waiver

        The indenture may be amended or supplemented or any provision of the indenture may be waived without the consent of any holders of debt securities, including the New Notes, in certain circumstances, including:

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        The indenture may be amended or supplemented with respect to a series of debt securities if the holders of a majority in principal amount of the outstanding debt securities of that series consent to it. Without the consent of the holder of each debt security issued under the indenture and affected, however, no modification to the indenture may:

        The holders of a majority in principal amount of the outstanding debt securities of all series affected by the waiver (voting as a single class) may on behalf of the holders of all debt securities of such series waive compliance by us with certain restrictive provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of all series affected by such default (voting as a single class) may waive any past default under the indenture with respect to such debt securities, except a default in the payment of the principal of (or premium, if any) and interest, if any, on any debt securities or in respect of a provision which under the indenture cannot be modified or amended without the consent of the holder of each outstanding debt security of such series.

Defeasance and Covenant Defeasance

        The indenture will provide that, at our option, we (and any applicable Guarantor Subsidiary) will be discharged from any and all obligations in respect of the outstanding New Notes of any series upon irrevocable deposit with the trustee, in trust, of money and/or U.S. government securities which will provide money in an amount sufficient in the opinion of a nationally recognized firm of financial advisers or independent chartered accountants as evidenced by a certificate of officers of the company delivered to the trustee to pay the principal of (and premium, if any) and interest, if any, on the outstanding New Notes of that series (hereinafter referred to as a "defeasance") (except with respect to the authentication, transfer, exchange or replacement of our debt securities or the maintenance of a place of payment and certain other obligations set forth in the indenture). Such trust may only be established if, among other things:

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        We may exercise our defeasance option notwithstanding our prior exercise of our covenant defeasance option described in the following paragraph if we meet the conditions described in the preceding paragraph at the time we exercise the defeasance option.

        The indenture provides that, at our option, unless and until we have exercised our defeasance option described above with respect to the New Notes of any series, we (and any applicable Guarantor Subsidiary) may omit to comply with the covenants described under "— Certain Covenants — Negative Pledge", and certain aspects of the covenant described under "— Certain Covenants — Consolidation, Amalgamation, Merger and Sale of Assets" and certain other covenants, and such omission will not be deemed to be an event of default under the indenture and the outstanding New Notes of that series upon irrevocable deposit with the trustee, in trust, of money and/or U.S. government securities which will provide money in an amount sufficient in the opinion of a nationally recognized firm of financial advisers or independent chartered accountants as evidenced by a certificate of officers of the company delivered to the trustee to pay the principal of (and premium, if any) and interest, if any, on the outstanding New Notes of that series (hereinafter referred to as "covenant defeasance"). If we exercise our covenant defeasance option, the obligations under the indenture other than with respect to such covenants and the events of default other than with respect to such covenants will remain in full force and effect. Such trust may only be established if, among other things:

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Discharge of the Indenture

        We may satisfy and discharge our obligations under the indenture with respect to the New Notes of any series by delivering to the trustee for cancellation all such outstanding New Notes or by depositing with the trustee or the paying agent, after such New Notes have become due and payable or will become due and payable within one year, whether at stated maturity, on any redemption date or otherwise, cash sufficient to pay all of the outstanding New Notes of that series and pay all other sums payable under the indenture by us.

Payment and Paying Agents

        Payments on the New Notes will be made in United States dollars. If a holder of at least $1,000,000 principal amount of New Notes has provided wire transfer instructions to us at least 10 business days prior to the applicable payment date, we will pay all principal, interest and premium, if any, on that holder's New Notes in accordance with those instructions. All other payments on New Notes will be made at the office or agency of the paying agent in the City and State of New York unless we elect to make interest payments by check mailed to the holders at their addresses set forth in the register of holders; provided that all payments of principal, premium, if any, and interest, with respect to the global New Notes registered in the name of or held by DTCC or its nominee and will be made by wire transfer of immediately available funds to the account specified by DTCC.

        We will make any required interest payments to the person in whose name each note is registered at the close of business on the record date for the interest payment. The trustee will be designated as our paying agent for payments on the New Notes. We may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which any paying agent acts. Subject to the requirements of any applicable laws of escheat or other abandoned property laws, the trustee and paying agent shall pay to us upon written request any money held by them for payments on New Notes that remain unclaimed for two years after the date upon which that payment became due. After payment to us, holders entitled to the money must look to us for payment. In that case, all liability of the trustee or paying agent with respect to that money will cease.

Replacement of Notes

        We will replace any New Notes that become mutilated, destroyed, stolen or lost at the expense of the holder upon delivery to the trustee of the mutilated New Notes or evidence of the loss, theft or destruction satisfactory to us and the trustee. In the case of a lost, stolen or destroyed note, indemnity satisfactory to the trustee and us may be required at the expense of the holder of the note before a replacement note will be issued.

Global Securities and Book-Entry System

        The New Notes initially will be represented by one or more certificates in registered global form without interest coupons (collectively, the " Global Securities ") and will be deposited with the trustee as custodian for the Depositary and registered in the name of the Depositary or its nominee.

        Except as described below under "— Special Situations When a Global Security Will be Terminated," owners of beneficial interests in the New Notes will not be entitled to receive New Notes in definitive form and will not be considered holders of New Notes under the Indenture.

The Depositary

        The Depositary has advised us as follows:

        The Depositary is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a clearing agency registered pursuant to the provisions of Section 17A of the Exchange Act. The Depositary holds and provides asset servicing for securities that the Depositary's participants (" Direct Participants ") deposit with the Depositary. The Depositary also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants' accounts. This eliminates the need for physical movement of securities

37


certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. The Depositary is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation (" DTCC "). DTCC, in turn, is owned by a number of Direct Participants of the Depositary and Members of the National Securities Clearing Corporation, Government Securities Clearing Corporation, MBS Clearing Corporation, and Emerging Markets Clearing Corporation (NSCC, GSCC, MBSCC, and EMCC, respectively, also are subsidiaries of DTCC), as well as by the NYSE Euronext and the Financial Industry Regulatory Authority, Inc. Access to the Depositary's system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (" Indirect Participants "). The Depositary's Rules applicable to its participants are on file with the SEC.

        Purchases of New Notes under the Depositary's system must be made by or through Direct Participants, which will receive a credit for such New Notes on the Depositary's records. The ownership interest of each actual purchaser of New Notes represented by the Global Securities (a " Beneficial Owner "), is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from the Depositary of their purchase, but Beneficial Owners are expected to receive written confirmation providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in Global Securities are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive New Notes in definitive form representing their ownership interests therein, except in the limited circumstances described under "— Special Situations When a Global Security Will be Terminated."

        To facilitate subsequent transfers, the Global Securities deposited with the Depositary will be registered in the name of the Depositary's partnership nominee, Cede & Co. The deposit of the Global Securities with the Depositary and their registration in the name of Cede & Co. does not effect any change in beneficial ownership. The Depositary has no knowledge of the actual Beneficial Owners of the Global Securities representing the New Notes. The Depositary's records reflect only the identity of the Direct Participants to whose accounts such New Notes are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers.

        Conveyance of notices and other communications by the Depositary to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.

        Unless physical certificates representing the New Notes have been issued, redemption notices shall be sent to Cede & Co. If less than all of the New Notes are being redeemed, the Depositary's practice is to determine by lot the amount of the interest of each Direct Participant in the New Notes to be redeemed.

        Neither the Depositary nor Cede & Co. will consent or vote with respect to the Global Securities representing the New Notes unless authorized by a Direct Participant in accordance with the Depositary's procedures. Under its usual procedures, the Depositary mails an omnibus proxy (an " Omnibus Proxy ") to the Company as soon as possible after the applicable record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the New Notes are credited on the applicable record date (identified in a listing attached to the Omnibus Proxy).

        Principal, premium, if any, and interest payments on the Global Securities representing the New Notes will be made to the Depositary. The Depositary's practice is to credit Direct Participants' accounts on the applicable payment date in accordance with their respective holdings shown on the Depositary's records unless the Depositary has reason to believe that it will not receive payment on such date. Payments by Direct and Indirect Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in "street name," and will be the responsibility of such participants and not of the Depositary, the trustee, Kinross, or the Guarantor Subsidiaries subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal, premium, if any, and interest to Cede & Co. is the responsibility of Kinross, disbursement of such

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payments to Direct Participants shall be the responsibility of the Depositary, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. None of Kinross, the Guarantor Subsidiaries or the trustee will have any responsibility or liability for the disbursements of payments in respect of ownership interests in the New Notes by the Depositary or the Direct or Indirect Participants or for maintaining or reviewing any records of the Depositary or the Direct or Indirect Participants relating to ownership interests in the New Notes or the disbursement of payments in respect thereof. The information in this section concerning the Depositary and the Depositary's system has been obtained from sources that we believe to be reliable, but is subject to any changes to the arrangements between us and the Depositary and any changes to such procedures that may be instituted unilaterally by the Depositary.

Special Investor Considerations for Global Securities

        The obligations of Kinross and the Guarantor Subsidiaries, as well as the obligations of the trustee and those of any third parties employed by Kinross, the Guarantor Subsidiaries or the trustee run only to persons who are registered as holders of Notes. For example, once we make payment to the registered holder of a note, we have no further responsibility for the payment even if that holder is legally required to pass the payment along to you but does not do so. As an indirect holder, an investor's rights relating to a Global Security will be governed by the account rules of the investor's financial institution and of the Depositary, as well as general laws relating to debt securities transfers.

        An investor should be aware that when New Notes are issued in the form of Global Securities:

Special Situations When a Global Security Will be Terminated

        In a few special situations described below, a Global Security will terminate and interests in it will be exchanged for physical certificates representing New Notes. After that exchange, an investor may choose whether to hold New Notes directly or indirectly through an account at its bank or brokerage firm. Investors must consult their own banks or brokers to find out how to have their interests in New Notes transferred into their own names, so that they will be direct holders.

        The special situations for termination of a Global Security are:

        When a Global Security terminates, the Depositary (and not Kinross, the Guarantor Subsidiaries or the trustee) is responsible for deciding the names of the institutions that will be the initial direct holders.

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Global Clearance and Settlement Procedures

        Initial settlement for the New Notes will be made in immediately available funds. Secondary market trading between Depositary participants (" DTC Participants ") will occur in the ordinary way in accordance with the Depositary's rules and will be settled in immediately available funds using the Depositary's Same-Day Funds Settlement System. Secondary market trading between Clearstream Banking S.A. (" Clearstream, Luxembourg ") participants (" Clearstream Participants ") and/or Euroclear System (" Euroclear ") participants (" Euroclear Participants ") will occur in the ordinary way in accordance with the applicable rules and operating procedures of Clearstream, Luxembourg and Euroclear, as applicable.

        Cross-market transfers between persons holding directly or indirectly through the Depositary, on the one hand, and directly or indirectly through Clearstream Participants or Euroclear Participants, on the other, will be effected through the Depositary in accordance with the Depositary's rules on behalf of the relevant European international clearing system by its U.S. depositary; however, such cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering securities to or receiving securities from the Depositary, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to the Depositary. Clearstream Participants and Euroclear Participants may not deliver instructions directly to their respective U.S. depositaries.

        Because of time-zone differences, credits of New Notes received in Clearstream, Luxembourg or Euroclear as a result of a transaction with a DTC Participant will be made during subsequent securities settlement processing and dated the business day following the Depositary's settlement date. The credits or any transactions in the New Notes settled during the processing will be reported to the relevant Euroclear Participant or Clearstream Participant on that business day. Cash received in Clearstream, Luxembourg or Euroclear as a result of sales of the New Notes by or through a Clearstream Participant or a Euroclear Participant to a DTC Participant will be received with value on the Depositary's settlement date but will be available in the relevant Clearstream, Luxembourg or Euroclear cash account only as of the business day following settlement through the Depositary.

        Although the Depositary, Clearstream, Luxembourg and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of New Notes among participants of the Depositary, Clearstream, Luxembourg and Euroclear, they are under no obligation to perform or continue to perform such procedures and such procedures may be discontinued or changed at any time.

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U.S. FEDERAL INCOME TAX CONSIDERATIONS

        The following summary discusses certain material U.S. federal income tax consequences of the acquisition, ownership and disposition of the New Notes by U.S. Holders (as defined below) that will receive New Notes pursuant to the exchange offer and that will hold the New Notes as capital assets (generally, assets held for investment) for U.S. federal income tax purposes. The following discussion does not deal with the U.S. federal income tax consequences to any particular investor or to persons in special tax situations such as:

        The discussion below is based upon the provisions of the U.S. Internal Revenue Code of 1986, as amended (the " Code "), and U.S. Treasury regulations, rulings and judicial decisions as of the date hereof. Those authorities may be changed, perhaps retroactively, so as to result in U.S. federal income tax consequences different from those discussed below. There can be no assurance that the U.S. Internal Revenue Service (the " IRS ") will not challenge one or more of the tax consequences discussed herein.

        A U.S. Holder should consult its own tax advisors concerning the U.S. federal, state and local income and other tax consequences of the acquisition, ownership and disposition of the New Notes based upon its particular situations including any consequences arising under the laws of any other taxing jurisdiction.

        For purposes of this summary, a "U.S. Holder" is a beneficial owner of New Notes that is:

        If a partnership, or other entity treated as a partnership for U.S. federal income tax purposes, holds New Notes, the tax treatment of a partner in the partnership will generally depend upon the status of the partner and the tax treatment of the partnership. A partner of a partnership holding New Notes should consult its own tax advisors regarding the U.S. federal tax consequences relating to the purchase, ownership and disposition of the New Notes.

The Exchange Offer

        The exchange of the Initial Notes for the New Notes pursuant to the terms set forth in this prospectus will not constitute a taxable exchange for U.S. federal income tax purposes. Consequently, a U.S. Holder should not recognize a gain or loss upon receipt of the New Notes, and ownership of the Initial Notes. For purposes of

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determining gain or loss upon the subsequent sale or exchange of the New Notes, a U.S. Holder's basis in the New Notes should be the same as such holder's basis in the Initial Notes exchanged. A U.S. Holder's holding period for the New Notes should include the holding period for the Initial Notes exchanged. The issue price and other U.S. federal income tax characteristics of the New Notes should be identical to the issue price and other U.S. federal income tax characteristics of the Initial Notes exchanged.

Additional Payments

        In certain circumstances, we may be obligated to pay amounts in excess of stated interest or principal on the New Notes. We believe that the likelihood that we will be obligated to make any such payments as a result of the contingency described in "Description of the Notes and Guarantees — Change of Control Repurchase Event" is remote. Therefore, we do not intend to treat the potential payment of these amounts as subjecting the Notes to the provisions of the U.S. Treasury regulations relating to "contingent payment debt instruments." Our determination is binding on a U.S. Holder unless such U.S. Holder discloses its contrary position in a statement attached to its timely filed U.S. federal income tax return for the taxable year during which a New Note was acquired. Our determination is not, however, binding on the IRS, and if the IRS were to challenge this determination, the tax consequences to a U.S. Holder could differ from those discussed herein. The remainder of this disclosure assumes that the New Notes will not be treated as contingent payment debt instruments for U.S. federal income tax purposes.

Interest on the New Notes

        Interest on the New Notes generally will be taxable to a U.S. Holder as ordinary income at the time that such interest is paid or accrued, in accordance with the U.S. Holder's regular method of accounting for U.S. federal income tax purposes. Interest on the New Notes and any additional amounts paid with respect to withholding tax on the New Notes, including withholding tax on payments of such additional amounts ("additional amounts") should constitute income from sources outside the United States subject to the rules regarding the foreign tax credit allowable to a U.S. Holder. Under the foreign tax credit rules, interest and additional amounts will, depending on the U.S. Holder's circumstances, be either "passive category income" or "general category income" for purposes of computing the foreign tax credit. Due to the complexity of the U.S. foreign tax credit rules, U.S. Holders should consult their own tax advisors with respect to the application of the U.S. foreign tax credit rules to their particular circumstances.

Sale, Exchange, Redemption or Other Disposition of the Notes

        A U.S. Holder generally will recognize a gain or loss upon the sale, exchange, redemption or other disposition of a New Note in an amount equal to the difference, if any, between the amount realized upon the sale, exchange, redemption or other disposition (reduced by any amounts attributable to accrued but unpaid interest, which will be taxable as interest in the manner described above under "— Interest on the New Notes") and such U.S. Holder's adjusted tax basis in the New Note (the adjusted tax basis in the New Note should be determined as described above under "— The Exchange Offer"). Any gain or loss that a U.S. Holder recognizes on a disposition of a New Note will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holder has held such New Note for more than one year (the holding period of the New Note should be determined as described above under "— The Exchange Offer"). Long-term capital gain of U.S. Holders is generally taxed at preferential rates. Such gain or loss generally will be treated as income or loss from within the United States for U.S. foreign tax credit purposes. A U.S. Holder's ability to deduct capital losses may be limited.

Medicare Tax

        For taxable years beginning after December 31, 2012, a U.S. Holder that is an individual or estate, or a trust that does not fall into a special class of trusts that is exempt from such tax, will be subject to a 3.8% tax on the lesser of (1) the U.S. Holder's "net investment income" for the relevant taxable year and (2) the excess of the U.S. Holder's modified adjusted gross income for the taxable year over a certain threshold (which, in the case of individuals, will be between $125,000 and $250,000, depending on the individual's circumstances). A U.S. Holder's net investment income will generally include its interest income and its net gains from the

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disposition of the New Notes, unless such interest income or net gains are derived in the ordinary course of the conduct of a trade or business (other than a trade or business that consists of certain passive or trading activities). A U.S. Holder that is an individual, estate or trust is urged to consult its tax advisors regarding the applicability of the Medicare tax to its income and gains in respect of its investment in the New Notes.

Information with Respect to Foreign Financial Assets

        Owners of "specified foreign financial assets" with an aggregate value in excess of $50,000 (and in some circumstances, a higher threshold) may be required to file an information report with respect to such assets with their tax returns. "Specified foreign financial assets" include any financial accounts maintained by foreign financial institutions, as well as any of the following, but only if they are not held in accounts maintained by financial institutions: (i) stocks and securities issued by non-U.S. persons, (ii) financial instruments and contracts held for investment that have non-U.S. issuers or counterparties, and (iii) interests in foreign entities. The New Notes may be subject to these rules. Holders are urged to consult their tax advisors regarding the application of this legislation to their ownership of the New Notes.

Information Reporting and Backup Withholding

        In general, if a noncorporate U.S. Holder holds the Notes, we and other payors are required to report to the IRS certain payments of principal and interest on the New Notes and the proceeds of the sale, exchange, redemption or other disposition of a New Note, unless a U.S. Holder is an exempt recipient (such as a corporation).

        Additionally, backup withholding will generally apply to such payments if a U.S. Holder fails to provide a correct taxpayer identification number or fails to otherwise comply with the backup withholding requirements, or if a U.S. Holder is notified by the Internal Revenue Service that such holder has failed to report all interest and dividends required to be shown on their federal income tax returns.

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CANADIAN FEDERAL INCOME TAX CONSIDERATIONS

        The following summary describes the principal Canadian federal income tax considerations generally applicable to a holder of Initial Notes who acquires, as a beneficial owner, New Notes, including entitlement to all payments thereunder, pursuant to this prospectus in exchange for, and evidencing the same continuing indebtedness as the Initial Notes and who, at all relevant times, for purposes of the application of the Income Tax Act (Canada) and the Income Tax Regulations (collectively, the " Tax Act "), (1) is not, and is not deemed to be, resident in Canada, (2) deals at arm's length with Kinross, any guarantor and any transferee resident (or deemed to be resident) in Canada to whom the holder disposes of the New Notes, (3) does not receive any payment of interest on the New Notes in respect of a debt or other obligation to pay an amount to a person with whom Kinross or any guarantor does not deal at arm's length and (4) does not use or hold the New Notes in a business carried on in Canada (a " Holder "). Special rules, which are not discussed in this summary, may apply to a non-Canadian holder that is an insurer that carries on an insurance business in Canada and elsewhere. Such holders should consult their own tax advisors.

        This summary is based on the current provisions of the Tax Act and on an understanding of the current administrative policies and assessing practices of the Canada Revenue Agency (the " CRA ") published in writing prior to the date hereof. This summary takes into account all specific proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof (the " Proposed Amendments ") and assumes that all Proposed Amendments will be enacted in the form proposed. However, no assurances can be given that the Proposed Amendments will be enacted as proposed, or at all. This summary does not otherwise take into account or anticipate any changes in law or administrative policy or assessing practice whether by legislative, regulatory, administrative or judicial action nor does it take into account tax legislation or considerations of any province, territory or foreign jurisdiction, which may be different from those discussed herein.

        This summary is of a general nature only and is not, and is not intended to be, legal or tax advice to any particular holder. This summary is not exhaustive of all Canadian federal income tax considerations. Accordingly, prospective holders of New Notes should consult their own tax advisors having regard to their own particular circumstances.

The Exchange Offer

        The exchange of Initial Notes for New Notes pursuant to the terms set forth in this prospectus should not constitute a disposition and should not give rise to a capital gain or a capital loss for purposes of the Tax Act.

Taxation of Interest on New Notes

        No Canadian withholding tax will apply to interest, principal or premium, if any, paid or credited to a Holder by Kinross or to the proceeds received by a Holder on the disposition of a New Note including a redemption, payment on maturity, repurchase or purchase for cancellation.

        No other tax on income or gains will be payable by a Holder on interest, principal or premium, if any, on a New Note or on the proceeds received by a Holder on the disposition of a New Note including a redemption, payment on maturity, repurchase or purchase for cancellation.

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PLAN OF DISTRIBUTION

        Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Initial Notes where the Initial Notes were acquired as a result of market-making activities or other trading activities. We have agreed that, until the earlier of the expiration of 180 days after the exchange offer or such time as such broker-dealers no longer own any Initial Notes, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale.

        We will not receive any proceeds from any sale of New Notes by broker-dealers. New Notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the New Notes or a combination of those methods of resale, at market prices prevailing at the time of resale, at prices related to prevailing market prices or negotiated prices. Any resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any of the New Notes. Any broker-dealer that resells New Notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of the New Notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any resale of New Notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.

        For a period of 180 days after the expiration date of the exchange offer or such time as the broker-dealers no longer own any Initial Notes, whichever is shorter, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that is entitled to use such documents that requests such documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offer other than commissions or concessions of any brokers or dealers and will indemnify the holders of the New Notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.


INDEPENDENT CHARTERED ACCOUNTANTS

        The annual audited consolidated financial statements of Kinross incorporated by reference in this prospectus have been audited by KPMG LLP, Chartered Accountants, as stated in their report accompanying the financial statements.


INTERESTS OF QUALIFIED PERSONS

        The technical information about the Company's mineral properties contained in or incorporated by reference in this prospectus has been prepared under the supervision of Mr. Rob Henderson, a former officer of the Company, and Mr. Mark Sedore, an officer of the Company, each of whom is a "qualified person" within the meaning of NI 43-101. The technical information about the White Gold mineral resource contained in or incorporated by reference has been prepared under the supervision of Mr. Wayne Barnett and Mr. Marek Nowak, each of whom is a "qualified person" within the meaning of NI 43-101.

45



VALIDITY OF NOTES AND GUARANTEES

        The validity of the New Notes and the related Guarantees will be passed upon for us by Sullivan & Cromwell LLP, New York, New York. Certain legal matters relating to Canadian and Ontario law will be passed upon for us by Osler, Hoskin & Harcourt LLP, Toronto, Ontario. Certain legal matters related to the laws of Canada and British Columbia will be passed upon for us by Blake, Cassels & Graydown LLP, Toronto, Canada. Certain legal matters related to Alaska and Washington law will be passed upon for us by Perkins Coie LLP, Seattle, Washington. Certain legal matters relating to Bermuda law will be passed upon for us by Mashall Diel & Myers Limited, Hamilton, Bermuda. Certain legal matters related to the laws of Brazil will be passed upon for us by Veirano Advogados, Rio de Janeiro, Brazil. Certain legal matters related to the laws of Chile will be passed upon for us by Carey y Cia, Santiago, Chile. Certain legal matters relating to Nevada law will be passed upon for us by Parsons Behle & Latimer, Reno, Nevada.


DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT

        The following documents have been filed with the Commission as part of the registration statement of which this prospectus is a part:

46


KINROSS GOLD CORPORATION


 

FORM F-9

 

PART II

 

INFORMATION NOT REQUIRED TO BE DELIVERED TO
OFFEREES OR PURCHASERS

 

Indemnification

 

British Columbia

 

Red Back Mining Mauritania No. 2 Limited (“ Red Back Mining Mauritania ”) is a company formed under the Business Corporations Act (British Columbia) (the “ BCBCA ”).  BCBCA companies may indemnify a current or former director of the company or of another corporation that is an affiliate of the company, or an individual who, at the request of the company, held a position equivalent to that of director or officer of a partnership, trust, joint venture or other unincorporated entity (an “ Eligible Party ”).  Such indemnity may include a judgment, penalty or fine for a legal proceeding or investigative action (a “ Proceeding ”) in which the Eligible Party, or any of its heirs or legal representatives, may be liable as a result of having been a director or officer, or having held a position equivalent to that of director or officer of the company or an associated corporation.

 

The indemnity may also include, after the final disposition of a Proceeding, expenses actually and reasonably incurred by the Eligible Party such as costs, charges and fees, including legal fees (the “ Expenses ”).  The BCBCA company must pay the Eligible Party the Expenses if the Eligible Party has not been reimbursed for the Expenses and is wholly or substantially successful in the outcome of a Proceeding.  Before a BCBCA company may pay the Expenses, the Eligible Party must first provide the company a written undertaking that if it is ultimately determined that the payment of the Expenses is prohibited by Section 163 of the BCBCA, the Eligible Party will repay the amounts advanced.  Section 163 of the BCBCA provides that a company may not indemnify or pay the Expenses of an Eligible Party if (a) the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and at the time the company was prohibited from giving the indemnity by its memorandum or articles, (b) the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and at the time the company is prohibited from giving the indemnity by its memorandum or articles, (c) in relation to a Proceeding, the Eligible Party did not act honestly and in good faith with a view to the best interests of the company or the associated corporation or (d) in the case of a Proceeding other than a civil proceeding, if the Eligible Party did not have reasonable grounds for believing that the Eligible Party’s conduct in respect of which the Proceeding was brought was lawful.  Section 163 of the BCBCA further provides that if a Proceeding is brought against an Eligible Party by or on behalf of the company or by or on behalf of an associated corporation, the company must not (a) indemnify the Eligible Party or (b) pay the Expenses of the Eligible Party.

 

Section 164 of the BCBCA provides that the Supreme Court of British Columbia may, on application of the company or an Eligible Party, order the company to (a) indemnify an Eligible Party against any liability incurred by the Eligible Party in respect of a Proceeding, (b) pay some or all of the Expenses incurred by an Eligible Party in respect of a Proceeding, (c) comply with an agreement of indemnification entered into by the company (d) pay some or all of the Expenses actually and reasonably incurred by any person in obtaining an order under this section of the BCBCA or (e) make any other order that the court considers appropriate.

 

The articles of Red Back Mining Mauritania provide that, subject to the limitations contained in the BCBCA, it must indemnify a director or former director and his or her heirs and legal personal representatives against a judgment, penalty or fine for a Proceeding in which the person may be liable.  Red Back Mining Mauritania may indemnify any other person, subject to the restrictions in the BCBCA.  The articles of Red Back Mining Mauritania further provide that it must, after the final disposition of such a proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding.  Each director is deemed to have contracted with Red Back Mining Mauritania on the terms of the indemnification provisions in the articles.

 

The articles of Red Back Mining Mauritania also provide that it may purchase and maintain insurance for the benefit of any person (or his or her heirs or legal personal representatives) who (a) is or was a director, officer, employee or agent, (b) is or was a director, officer, employee or agent of a corporation at a time when the corporation is or was an affiliate of Red Back Mining Mauritania, (c) at the request of Red Back Mining Mauritania, is or was a director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity or (d) at the request of Red Back Mining Mauritania, holds or held a position equivalent to that of a director or officer of a partnership, trust, joint venture or

 

F-9, II-1



 

 

other unincorporated entity, against any liability incurred by him or her as such director, officer, employee or agent or person who holds or held such equivalent position.

 

Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “ Securities Act ”), may be permitted to directors, officers or persons controlling Red Back Mining Mauritania pursuant to the foregoing provisions, Red Back Mining Mauritania has been informed that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Canada

 

Aurelian Resources Inc. (“ Aurelian Resources ”) and Red Back Mining Inc. (“ Red Back Mining ”) are corporations formed under the Canada Business Corporations Act (the “ CBCA ”). CBCA corporations may indemnify an Eligible Party. Such indemnity may include all costs, charges and expenses, including an amount paid to settle a Proceeding or satisfy a judgment, reasonably incurred by the individual in respect of any Proceeding in which the Eligible Party becomes involved as a result of having acted as a director or officer, or in any similar capacity, of the corporation or such other entity.  A CBCA corporation may not indemnify an Eligible Party unless the Eligible Party has:

 

(a) acted honestly and in good faith with a view to the best interests of the corporation or, as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the corporation’s expense; and

(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Eligible Party had reasonable grounds for believing that its conduct was lawful.

 

Eligible Parties will be entitled to indemnification from a CBCA corporation if they have not been judged by a court or other competent authority to have committed any fault or omitted to do anything they ought to have done and conditions (a) and (b) set out above in this paragraph have been fulfilled. A CBCA corporation may advance moneys to an Eligible Party for the costs, charges and expenses of a proceeding; however, such Eligible Party must repay the moneys if they do not fulfill conditions (a) and (b) set out above in this paragraph. CBCA corporations may purchase and maintain liability insurance for the benefit for those individuals entitled to indemnification under the CBCA. In the case of a derivative action, indemnification may only be made with court approval.

 

The by-laws of Aurelian Resources provide that, subject to the limitations contained in the CBCA, Aurelian Resources shall indemnify any director or officer, or former director or officer, of Aurelian Resources, or any person who, at the request of Aurelian Resources, acts or has acted as a director or officer of a body corporate of which Aurelian Resources is or was a shareholder or creditor, together with his or her heirs and legal representatives, against all expenses, including legal fees, judgments, fines and any amount actually and reasonably incurred by him or her in respect of any Proceeding, whether civil, criminal, administrative or investigative (other than a derivative action) to which he or she was made a party by reason of being or having been a director or officer of Aurelian Resources or such body corporate. Such director or officer, or former director or officer, must have acted honestly and in good faith, with a view to the best interests of Aurelian Resources, and in the case of a criminal or administrative Proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his or her conduct was lawful. The by-laws also provide that Aurelian Resources shall indemnify such a party in such other circumstances as the CBCA permits or requires.

 

The by-laws of Red Back Mining provide that, subject to the limitations contained in the CBCA, Red Back Mining shall indemnify any director or officer, or former director or officer, of Red Back Mining, or any person who, at the request of Red Back Mining, acts or has acted as a director or officer of another entity, together with his or her heirs and legal representatives, against all costs, charges and expenses, including any amount paid to settle a Proceeding or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal, administrative, investigative or other proceeding to which he or she is involved by reason of the association with Red Back Mining, or such other entity, if such individual acted honestly and in good faith, with a view to the best interests of the corporation, or, as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at Red Back Mining’s request, and in the case of a criminal or administrative Proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his or her conduct was lawful. The by-laws also provide that Red Back Mining shall indemnify such a party in such other circumstances as the CBCA permits or requires.

 

The by-laws of Red Back Mining provide that it may, subject to the limitations contained in the CBCA, purchase, maintain insurance for the benefit of any person referred to in the foregoing paragraph.

 

F-9, II-2



 

Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, officers or persons controlling Aurelian Resources and/or Red Back Mining pursuant to the foregoing provisions, Aurelian Resources and Red Back Mining have been informed that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Ontario

 

Kinross is a corporation formed under the Business Corporations Act  (Ontario) (the “ OBCA ”). OBCA corporations may indemnify an Eligible Party. Such indemnity may include all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any Proceeding in which the Eligible Party becomes involved as a result of having acted as a director or officer, or in any similar capacity, of the corporation or such other entity.  An OBCA corporation may not indemnify an Eligible Party unless the Eligible Party has:

 

(a) acted honestly and in good faith with a view to the best interests of the corporation or, as the case may be, to the best interests of the other entity  for which the individual acted as a director or officer or in a similar capacity at the corporation’s request; and

(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Eligible Party had reasonable grounds for believing that its conduct was lawful.

 

Eligible Parties will be entitled to indemnification from an OBCA corporation if they have not been judged by a court or other competent authority to have committed any fault or omitted to do anything they ought to have done and conditions (a) and (b) set out above in this paragraph have been fulfilled. An OBCA corporation may advance moneys to an Eligible Party for the costs, charges and expenses of a proceeding; however, such Eligible Party must repay the moneys if they do not fulfill conditions (a) and (b) set out above in this paragraph. OBCA corporations may purchase and maintain liability insurance for the benefit for those individuals entitled to indemnification under the OBCA. In the case of a derivative action, indemnification may only be made with court approval.

 

The by-laws of Kinross provide that, subject to the limitations contained in the OBCA, Kinross shall indemnify any director or officer, or former director or officer, of Kinross, or any person who, at the request of Kinross, acts or has acted as a director or officer, or in a similar capacity, of another entity of which Kinross is or was a shareholder or creditor, together with his or her heirs and legal representatives, against all costs, charges and expenses, including any amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal or administrative action, proceeding or investigation (apprehended, threatened, pending, underway or completed) to which he or she was made a party or may become involved by reason of being or having been a director or officer of Kinross or such body corporate. Such director or officer, or former director or officer, must have acted honestly and in good faith, with a view to the best interests of the corporation (or, if applicable, in the best interests of the other entity for which the individual acted as a director, officer or in a similar capacity at the corporation’s request), and in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his or her conduct was lawful. The by-laws also provide that Kinross shall indemnify such a party in such other circumstances as the OBCA permits or requires.

 

The by-laws further provide that the above described indemnification provisions shall not affect any other right to indemnification to which any person may be or become entitled by contract or otherwise, and no settlement or plea of guilty in any Proceeding shall alone constitute evidence that a person did not meet a condition set out in clause (a) or (b) in the paragraph above or any corresponding condition in the OBCA. The by-laws also provide that the persons described above shall not be liable for any damage, loss, cost or liability sustained or incurred by Kinross, except where so required by the OBCA, if such person acted honestly and in good faith with a view to the best interest of the Kinross (or of the entity for which the individual acted as a director, officer or in a similar capacity at the request of Kinross).

 

Kinross has a policy of insurance for its directors and officers and those of its subsidiaries. The limit of liability applicable to all insured directors and officers under the current policies, which will expire on March 1, 2013, is $200 million in the aggregate, inclusive of defense costs. Under the policies, Kinross has reimbursement coverage to the extent that it has indemnified the directors and officers in excess of a deductible of $5 million for each loss for securities claims and $1 million for each loss for non-securities claims. The total premium charged to Kinross in respect of coverage for 2012 is $1,621,171, for 2011 was $1,187,856 and for 2010 was $1,309,034, no part of which is or was payable by the directors or officers of Kinross. Kinross has also entered into indemnification agreements with the directors and officers of its subsidiaries that provide for indemnification for liabilities of its directors and officers to the extent permitted by applicable law.

 

F-9, II-3



 

Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, officers or persons controlling Kinross pursuant to the foregoing provisions, Kinross has been informed that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

F-9, II-4



 

EXHIBITS TO FORM F-9

 

The exhibits to this registration statement are listed in the exhibit index, which appears elsewhere herein.

 

F-9, II-5



 

FORM F-9

 

PART III

 

UNDERTAKING AND CONSENT TO SERVICE OF PROCESS

 

Item 1. Undertaking.

 

The Form F-9 registrants undertake to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to the securities registered pursuant to this Form F-9 or to transactions in said securities.

 

Item 2. Consent to Service of Process.

 

Concurrently with the filing of this Registration Statement, the Form F-9 registrants are filing with the Commission written irrevocable consents and powers of attorney on Form F-X.

 

Any change to the name or address of the agent for service of the Form F-9 registrants shall be communicated promptly to the Commission by amendment to the applicable Form F-X referencing the file number of the relevant registration statement.

 



 

FORM F-9

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, Kinross Gold Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-9 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD CORPORATION

 

 

 

 

 

by

/s/ Paul Barry

 

 

Name: Paul Barry

 

 

Title: Executive VP and Chief Financial Officer

 

F-9, III-2



 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Geoffrey P. Gold as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ Tye W. Burt

 

 

 

 

Tye W. Burt

 

President, Chief Executive Officer and Director
(Principal Executive Officer)

 

April 27, 2012

/s/ Paul H. Barry

 

 

 

 

Paul H. Barry

 

Executive Vice President and Chief Financial Officer
(Principal Financial Officer and Principal Accounting
Officer)

 

April 27, 2012

/s/ John E. Oliver

 

 

 

 

John E. Oliver

 

Director, Chair

 

April 27, 2012

 

 

 

 

 

/s/ John A. Brough

 

 

 

 

John A. Brough

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ John K. Carrington

 

 

 

 

John K. Carrington

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ John M.H. Huxley

 

 

 

 

John M.H. Huxley

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Kenneth Irving

 

 

 

 

Kenneth Irving

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ John A. Keyes

 

 

 

 

John A. Keyes

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Catherine McLeod-Seltzer

 

 

 

 

Catherine McLeod-Seltzer

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ George A. Michals

 

 

 

 

George A. Michals

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Terence C.W. Reid

 

 

 

 

Terence C.W. Reid

 

Director

 

April 27, 2012

 

F-9, III-3



 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of Kinross Gold Corporation in the United States, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A., INC.

 

 

 

(Authorized U.S. Representative)

 

 

 

by

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

F-9, III-4



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, Aurelian Resources Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-9 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

AURELIAN RESOURCES INC.

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ Brant E. Hinze

 

 

 

 

Brant E. Hinze

 

President and Director

(Principal Executive Officer)

 

April 27, 2012

 

 

 

 

 

/s/ Frank C. De Costanzo

 

Treasurer

 

 

Frank C. De Costanzo

 

(Principal Financial Officer and Principal Accounting
Officer)

 

April 27, 2012

/s/ Geoffrey P. Gold

 

 

 

 

Geoffrey P. Gold

 

Director

 

April 27, 2012

 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of Aurelian Resources Inc. in the United States, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A., INC.

 

 

 

(Authorized U.S. Representative)

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

F-9, III-5



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, Red Back Mining Mauritania No. 2 Limited certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-9 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

RED BACK MINING MAURITANIA NO. 2 LIMITED

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ Brant E. Hinze

 

 

 

 

Brant E. Hinze

 

Chief Executive Officer and Director
(Principal Executive Officer)

 

April 27, 2012

 

 

 

 

 

/s/ Juliana L. Lam

 

Chief Financial Officer

 

 

Juliana L. Lam

 

(Principal Financial Officer and Principal Accounting
Officer)

 

April 27, 2012

/s/ Geoffrey P. Gold

 

 

 

 

Geoffrey P. Gold

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ J. Paul Rollinson

 

 

 

 

J. Paul Rollinson

 

Director

 

April 27, 2012

 

F-9, III-6



 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of Red Back Mining Mauritania No. 2 Limited in the United States, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A., INC.

 

 

 

(Authorized U.S. Representative)

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

F-9, III-7



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, Red Back Mining Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-9 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

RED BACK MINING INC.

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ J. Paul Rollinson

 

President and Director

 

April 27, 2012

J. Paul Rollinson

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Juliana L. Lam

 

Vice President, Finance

 

 

Juliana L. Lam

 

(Principal Financial Officer and Principal Accounting

 

April 27, 2012

 

 

Officer)

 

 

 

 

 

 

 

/s/ Geoffrey P. Gold

 

 

 

 

Geoffrey P. Gold

 

Director

 

April 27, 2012

 

 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of Red Back Mining Inc. in the United States in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A., INC.

 

 

 

(Authorized U.S. Representative)

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

F-9, III-8



 

FORM S-4

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 20. Indemnification of Directors and Officers

 

Delaware

 

Fairbanks Gold Mining, Inc. (“ Fairbanks Gold Mining ”) and Round Mountain Gold Corporation (“ Round Mountain Gold ”) are corporations under the Delaware General Corporation Law (the “ DGCL ”). Section 102(b)(7) of the DGCL provides that a corporation may, in its certificate of incorporation, eliminate or limit the personal liability of a director to the corporation or its stockholders 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 the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL (pertaining to certain prohibited acts including unlawful payment of dividends or unlawful purchase or redemption of the corporation’s capital stock); or (iv) for any transaction from which the director derived an improper personal benefit. The respective certificates of incorporation of the Guarantor Subsidiaries incorporated in Delaware eliminate and limit such personal liability of their directors under such terms. Further, the respective certificates of incorporation of the Guarantor Subsidiaries incorporated in Delaware provide that, if the DGCL is subsequently amended to permit further elimination or limitation of the personal liability of directors, the liability of a director of a Guarantor Subsidiary incorporated in Delaware will be eliminated or limited to the fullest extent permitted by the DGCL, as amended.

 

Section 145 of the DGCL provides, in relevant part, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. Eligibility for indemnification in relation to an action or suit by or in the right of the corporation may be further subject to the adjudication of the Delaware Court of Chancery or the court in which such action or suit was brought. The determination regarding whether the indemnitee has met the applicable standard of conduct generally must be made by a majority of disinterested directors (or a committee thereof) or the stockholders, although indemnification is mandatory where the indemnitee is successful on the merits or otherwise in defense of the action. A corporation may advance the expenses incurred by an officer or director in defending against any action, suit or proceeding upon receipt of an undertaking by or on behalf such person to repay such expenses if it is ultimately determined that such person is not entitled to indemnification. The statute also provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise.

 

The by-laws of the Guarantor Subsidiaries incorporated in Delaware authorize them to indemnify, to the full extent authorized by law, any person made or threatened to be made a party to any action, suit or proceeding by reason of the fact that such person is or was a director, officer or employee of the corporation or serves or served at the request of the corporation as a director, officer or employee of any other enterprise, and contains provisions substantially similar to those of the DGCL relating to advancement of expenses and the non-exclusivity of the indemnification rights therein.

 

Section 145(g) of the DGCL authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as such at any other enterprise against any liability asserted against and incurred by such person in such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person under the DGCL.

 



 

Nevada

 

Kinross Gold U.S.A. Inc. is a corporation under the Nevada Revised Statutes (“ NRS ”).  Pursuant to NRS 78.7502:

 

1.  A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person: (a) Is not liable pursuant to NRS 78.138 (breach of fiduciary duty involving intentional misconduct, fraud or a knowing violation of law); or (b) Acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.  The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person is liable pursuant to NRS 78.138 or did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, or that, with respect to any criminal action or proceeding, he or she had reasonable cause to believe that the conduct was unlawful.

 

2.  A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit if the person:  (a) Is not liable pursuant to NRS 78.138; or (b) Acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.

 

3.  To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections 1 and 2, or in defense of any claim, issue or matter therein, the corporation shall indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense.

 

Under NRS 75.751, any discretionary indemnification pursuant to NRS 78.7502, unless ordered by a court or advanced pursuant to subsection 2 of NRS 78.751, may be made by the corporation only as authorized in the specific case upon a determination that indemnification is proper in the circumstances.  The determination must be made: (a) By the stockholders; (b) By the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; (c) If a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion; or (d) If a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion.

 

Under Nevada law, the articles of incorporation, the bylaws or an agreement made by the corporation may provide that the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the corporation.  The bylaws of Kinross Gold U.S.A. Inc. provide that it shall provide the indemnification described in NRS 78.7502, as described above.  The bylaws further provide that any discretionary indemnification shall be provide as described in NRS 78.751, as described above.  The bylaws further provide that the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding shall be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he or she is not entitled to be indemnified by the corporation.

 

S-4, II-2



 

 

The indemnification pursuant to NRS 78.7502, NRS 78.751, and the bylaws does not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under otherwise applicable law.

 

Washington

 

Crown Resources Corporation (“ Crown Resources ”) is a corporation under the Washington Business Corporation Act (the “ WBCA ”). Section 23B.08.320 of the WBCA authorizes a corporation to eliminate or limit a director’s liability to the corporation or its shareholders for monetary damages for acts or omissions as a director, except in certain circumstances involving intentional misconduct, knowing violations of law or illegal corporate losses or distributions, or any transaction from which the director personally receives a benefit in money, property or services to which the director is not legally entitled.  Section 23B.08.560 of the WBCA provides that if authorized by (i) the articles of incorporation, (ii) a bylaw adopted or ratified by the shareholders, or (iii) a resolution adopted or ratified, before or after the event, by the shareholders, a corporation will have the power to indemnify a director made party to a proceeding, or to obligate itself to advance or reimburse expenses incurred in a proceeding, without regard to the limitations on indemnification contained in Section 23B.08.510 through 23B.08.550 of the WBCA, provided that no such indemnity shall indemnify any director (i) for acts or omissions that involve intentional misconduct by the director or a knowing violation of the law by the director, (ii) for conduct violating Section 23B.08.310 of the WBCA (which section relates to unlawful distributions), or (iii) for any transaction from which the director will personally receive a benefit in money, property or services to which the director is not legally entitled.

 

Furthermore, Section 23B.08.580 of the WBCA provides that a corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of such corporation, or who, while a director, officer, employee, or agent of such corporation, is or was serving at the request of such corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by such individual in that capacity or arising from such individual’s status as a director, officer, employee, or agent, whether or not such corporation would have power to indemnify such individual against the same liability under Section 23B.08.510 or 23B.08.520 of the WBCA.

 

The Restated Articles of Incorporation, as amended, of Crown Resources provides that, to the fullest extent that Washington law permits the limitation or elimination of directors’ liability, a director shall not be liable to Crown Resources or its shareholders for monetary damages from conduct as a director.  The Restated Articles of Incorporation, as amended, and the Amended and Restated Bylaws of Crown Resources further provide for indemnification of its directors, officers, employees and agents to the maximum extent permitted by Washington law.  The Restated Articles of Incorporation, as amended, further contains a provision that no amendment or repeal of the Restated Articles of Incorporation of Crown Resources shall adversely affect any right or any elimination or limitation of liability or indemnification rights of a director existing immediately prior to the amendment or repeal.

 

Alaska

 

Melba Creek Mining, Inc. (“ Melba Creek ”) is a corporation under the Alaska Corporations Code (the “ ACC ”).  Section 10.06.490 of the ACC permits a corporation to indemnify its directors, officers, employees, or agents against expenses, attorney fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason of the fact that they were or are directors, officers, employees, or agents of the corporation, if such directors, officers, employees, or agents acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to a criminal action or proceeding, had no reason to believe their conduct was unlawful.  In a derivative action, that is, one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees, or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant directors, officers, employees, or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.

 

S-4, II-3


 

 

Section 10.06.210 of the ACC authorizes a corporation to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for the breach of fiduciary duty as a director, except that the corporation may not eliminate or limit the liability of a director for (i) breach of a director’s duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) wilful or negligent conduct involved in the payment of dividends or the repurchase of stock from other than lawfully available funds, or (iv) a transaction from which the director derives an improper personal benefit.

 

Section 10.06.490 of the ACC further permits a corporation to purchase and maintain insurance on behalf of a person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against the person and incurred by the person in that capacity, or arising out of that status.

 

In accordance with the provisions of the ACC, the corporation’s Amended and Restated Bylaws provide for indemnification of its directors, officers, employees, or agents against expenses, attorney fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason of the fact that they were or are directors, officers, employees. or agents of the corporation, if such directors, officers, employees, or agents acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to a criminal action or proceeding, had no reason to believe their conduct was unlawful.  In an action by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees, or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant directors, officers, employees, or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.  To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of an action or proceeding referred to in the foregoing paragraphs of this section or in defense of a claim, issue, or matter in the action or proceeding, the director, officer, employee, or agent shall be indemnified against expenses and attorney fees actually and reasonably incurred in connection with the defense.

 

The Articles of Incorporation, as amended, of Melba Creek provides that, to the maximum extent that Alaska law permits the limitation or elimination of directors’ liability, a director shall not be liable to the corporation or its shareholders for monetary damages for the breach of fiduciary duties.

 

Bermuda

 

BGO (Bermuda) Ltd. (“ BGO ”) is a company under the Companies Act 1981 of Bermuda (as amended) (“ Companies Act ”). Section 98 of the Companies Act provides generally that a Bermuda company may indemnify its directors and officers against any liability which by virtue of any rule of law otherwise would be imposed on them in respect of any negligence, default, breach of duty or breach of trust, except in cases where such liability arises from fraud or dishonesty of which such director or officer may be guilty in relation to the company. Section 98 provides that a Bermuda company may indemnify its directors and officers against any liability incurred by them in defending any proceedings, whether civil or criminal, in which judgment is awarded in their favor or in which they are acquitted or granted relief by the Supreme Court of Bermuda pursuant to Section 281 of the Companies Act. Section 98 of the Companies Act further provides that a company may advance moneys to an officer for the costs, charges and expenses incurred by the officer in defending any civil or criminal proceedings against them, on condition that the officer shall repay the advance if any allegation of fraud or dishonesty is proved against them.

 

The Bye-Laws of BGO authorize it to indemnify and hold harmless the directors, secretary and other officers for the time being of BGO and the liquidator or trustees (if any) for the time being acting in relation to any affairs of BGO against all actions, costs, charges, losses, damages and expenses which they may incur or sustain by reason of any act done, concurred in or omitted in or about the execution of their duty or supposed duty or in their respective offices or trusts but this indemnity does not extend to any matter in respect of any willful negligence, willful default, fraud or dishonesty.

 

S-4, II-4



 

Federative Republic of Brazil

 

Kinross Brasil Mineraçao S.A. (“ Kinross Brasil ”) is a corporation under the laws of Brazil. Neither the laws of Brazil nor other constitutive documents provide for indemnification of directors and officers.

 

Chile

 

Compañía Minera Mantos de Oro and Compañía Minera Maricunga are contractual mining companies ( sociedades contractuales mineras ) organized under the laws of the Republic of Chile. Neither the laws of the Republic of Chile governing this type of Company nor the bylaws of Compañía Minera Mantos de Oro and Compañía Minera Maricunga, provide for indemnification of directors and officers.

 

Item 21. Exhibits

 

The exhibits to this registration statement are listed in the exhibit index, which appears elsewhere herein.

 

Item 22. Undertakings

 

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Form S-4 registrants pursuant to the foregoing provisions set forth in Item 20 above, or otherwise, such registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by such registrants of expenses incurred or paid by a director, officer or controlling person of such registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

The Form S-4 registrants hereby undertake to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of the responding to the request.

 

The Form S-4 registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being involved therein, that was not the subject of disclosure included in the registration statement when it became effective.

 

S-4, II-5



 

FORM S-4

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

 

BGO (BERMUDA) LTD.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

 

Name: Shelley M. Riley

 

 

 

Title:   Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ Andres J. Verdugo

 

President and Director

 

 

Andres J. Verdugo

 

(Principal Executive Officer, Principal

 

April 27, 2012

 

 

Financial Officer and Principal Accounting Officer)

 

 

/s/ Miguel Baeza Guinez

 

 

 

 

Miguel Baeza Guinez

 

Vice President and Director

 

April 27, 2012

 

 

 

 

 

/s/ Graham B.R. Collis

 

Director

 

April 27, 2012

Graham B.R. Collis

 

 

 

 

 

 

 

 

 

/s/ Guy Cooper

 

Director

 

April 27, 2012

Guy Cooper

 

 

 

 

 

 

 

 

 

/s/ Alastair B. MacDonald

 

Director

 

April 27, 2012

Alastair B. MacDonald

 

 

 

 

 

S-4, II-6



 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of BGO (Bermuda) Ltd. in the United States, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A., INC.

 

 

 

(Authorized U.S. Representative)

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

S-4, II-7



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Belo Horizonte, Brazil on this 27th day of April, 2012.

 

 

KINROSS BRASIL MINERAÇAO S.A.

 

 

 

 

 

 

By:

/s/ Antonio Carlos Marinho

 

 

Name: Antonio Carlos Marinho

 

 

Title:   Vice President and Legal Counsel

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Antonio Carlos Marinho as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ Antonio Carlos Marinho

 

Vice President and Legal Counsel

 

 

Antonio Carlos Marinho

 

(Principal Executive Officer, Principal Financial

 

April 27, 2012

 

 

Officer and Principal Accounting Officer)

 

 

 

 

 

 

 

/s/ Eduardo Magalhaes Barbosa

 

Director

 

April 27, 2012

Eduardo Magalhaes Barbosa

 

 

 

 

 

 

 

 

 

/s/ Alexandre Cancian

 

Director

 

April 27, 2012

Alexandre Cancian

 

 

 

 

 

 

 

 

 

/s/ Alessandro L. Nepomuceno

 

Director

 

April 27, 2012

Alessandro L. Nepomuceno

 

 

 

 

 

 

 

 

 

/s/ Wayne Arthur Phillips

 

Director

 

April 27, 2012

Wayne Arthur Phillips

 

 

 

 

 

 

 

 

 

/s/ Gilberto Carlos Nascimento Azevedo

 

Director

 

April 27, 2012

Gilberto Carlos Nascimento Azevedo

 

 

 

 

 

S-4, II-8



 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of Kinross Brasil Mineraçao S.A. in the United States, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A., INC.

 

 

 

(Authorized U.S. Representative)

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name: Shelley M. Riley

 

 

Title: Secretary

 

S-4, II-9



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A. INC.

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name: Shelley M. Riley

 

 

Title: Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ Lauren M. Roberts

 

President and Director

 

 

Lauren M. Roberts

 

(Principal Executive Officer)

 

April 27, 2012

 

 

 

 

 

 

 

 

 

 

/s/ Frank C. De Costanzo

 

Treasurer

 

 

Frank C. De Costanzo

 

(Principal Financial Officer and Principal Accounting

 

April 27, 2012

 

 

Officer)

 

 

 

 

 

 

 

/s/ Rick A. Baker

 

Director

 

April 27, 2012

Rick A. Baker

 

 

 

 

 

 

 

 

 

/s/ Brant E. Hinze

 

Director

 

April 27, 2012

Brant E. Hinze

 

 

 

 

 

S-4, II-10



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

CROWN RESOURCES CORPORATION

 

 

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name: Shelley M. Riley

 

 

Title: Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ Lauren M. Roberts

 

President and Director

 

April 27, 2012

Lauren M. Roberts

 

(Principal Executive Officer)

 

 

 

 

 

 

 

 

 

Treasurer

 

April 27, 2012

/s/ Frank C. De Costanzo

 

(Principal Financial Officer and Principal Accounting

 

 

Frank C. De Costanzo

 

Officer)

 

 

 

 

 

 

 

/s/ Rick A. Baker

 

 

 

April 27, 2012

Rick A. Baker

 

Director

 

 

 

 

 

 

 

/s/ Brant E. Hinze

 

 

 

April 27, 2012

Brant E. Hinze

 

Director

 

 

 

S-4, II-11



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

FAIRBANKS GOLD MINING, INC.

 

 

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name: Shelley M. Riley

 

 

Title: Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Lauren M. Roberts

 

 

 

 

Lauren M. Roberts

 

(Principal Executive Officer)

 

April 27 , 2012

 

 

 

 

 

/s/ Frank C. De Costanzo

 

 

 

 

Frank C. De Costanzo

 

(Principal Financial Officer and Principal Accounting Officer)

 

April 27 , 2012

 

 

 

 

 

/s/ Rick A. Baker

 

 

 

 

Rick A. Baker

 

Director

 

April 27 , 2012

 

 

 

 

 

/s/ Brant E. Hinze

 

 

 

 

Brant E. Hinze

 

Director

 

April 27 , 2012

 

S-4, II-12



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

MELBA CREEK MINING INC.

 

 

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name: Shelley M. Riley

 

 

Title: Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

 

 

 

/s/ Lauren M. Roberts

 

President and Director

 

 

Lauren M. Roberts

 

(Principal Executive Officer)

 

April 27 , 2012

 

 

 

 

 

/s/ Frank C. De Costanzo

 

Treasurer

 

 

Frank C. De Costanzo

 

(Principal Financial Officer and Principal Accounting Officer)

 

April 27, 2012

 

 

 

 

 

/s/ Rick A. Baker

 

 

 

 

Rick A. Baker

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Brant E. Hinze

 

 

 

 

Brant E. Hinze

 

Director

 

April 27, 2012

 

S-4, II-13


 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in Santiago, Chile on this 27th day of April, 2012.

 

 

COMPAÑÌA MINERA MANTOS DE ORO

 

 

 

 

 

By:

/s/ Andres Verdugo Ramírez de Arellano

 

 

Name: Andres Verdugo Ramírez de Arellano

 

 

Title: Director

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Rolando Cubillos as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent , full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Rolando Cubillos

 

Vice President and General Manager

 

 

Rolando Cubillos

 

(Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)

 

April 27, 2012

 

 

 

 

 

/s/ Andres J. Verdugo Ramírez de Arellano

 

 

 

 

Andres J. Verdugo Ramírez de Arellano

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Humberto Aquino

 

 

 

 

Humberto Aquino

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Jose T. Letelier Vial

 

 

 

 

Jose T. Letelier Vial

 

Director

 

April 27, 2012

 

S-4, II-14



 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of Compañía Minera Mantos de Oro in the United States, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A., INC.

 

 

 

(Authorized U.S. Representative)

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

S-4, II-15



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Santiago, Chile on this 27th day of April, 2012.

 

 

COMPAÑÌA MINERA MARICUNGA

 

 

 

 

 

By:

/s/ Andres Verdugo Ramírez de Arellano

 

 

Name: Andres Verdugo Ramírez de Arellano

 

 

Title: Director

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Cleres Martins Sampaio as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Cleres Martins Sampaio

 

Vice President and General Manager

 

 

Cleres Martins Sampaio

 

(Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)

 

April 27, 2012

 

 

 

 

 

/s/ Andres J. Verdugo Ramírez de Arellano

 

 

 

 

Andres J. Verdugo Ramírez de Arellano

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Humberto Aquino

 

 

 

 

Humberto Aquino

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Jose T. Letelier Vial

 

 

 

 

Jose T. Letelier Vial

 

Director

 

April 27, 2012

 

S-4, II-16



 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of Compañía Minera Maricunga in the United States, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

KINROSS GOLD U.S.A., INC.

 

 

 

(Authorized U.S. Representative)

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name:

Shelley M. Riley

 

 

Title:

Secretary

 

S-4, II-17



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Toronto, Ontario, Canada on this 27th day of April, 2012.

 

 

ROUND MOUNTAIN GOLD

 

CORPORATION

 

 

 

 

 

By:

/s/ Shelley M. Riley

 

 

Name: Shelley M. Riley

 

 

Title: Secretary

 

POWERS OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Shelley M. Riley as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Lauren M. Roberts

 

President and Director

 

 

Lauren M. Roberts

 

(Principal Executive Officer)

 

April 27, 2012

 

 

 

 

 

/s/ Frank C. De Costanzo

 

Treasurer

 

 

Frank C. De Costanzo

 

(Principal Financial Officer and Principal Accounting

 

April 27, 2012

 

 

Officer)

 

 

 

 

 

 

 

/s/ Rick A. Baker

 

 

 

 

Rick A. Baker

 

Director

 

April 27, 2012

 

 

 

 

 

/s/ Brant E. Hinze

 

 

 

 

Brant E. Hinze

 

Director

 

April 27, 2012

 

S-4, II-18



 

INDEX TO EXHIBITS

 

Exhibits to Form F-9

 

Exhibit No.

 

1.1   Form of Letter of Transmittal (included in Exhibit 99.1 to Form S-4).

 

1.2   Form of Notice of Guaranteed Delivery (included in Exhibit 99.2 to Form S-4).

 

3.2   Registration Rights Agreement dated as of August 22, 2011 among Kinross Gold Corporation, Aurelian Resources Inc., BGO (Bermuda) Ltd., Kinross Brasil Mineracao S.A., Kinross Gold U.S.A. Inc., Crown Resources Corporation, Fairbanks Gold Mining, Inc., Melba Creek Mining, Inc., Compania Minera Mantos de Oro, Compania Minera Maricunga, Red Back Mauritania No. 2 Limited, Red Back Mining Inc. and Round Mountain Gold Corporation, as guarantors, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. LLC, UBS Securities LLC as representatives of the initial purchasers named therein (included in Exhibit 4.5 to Form S-4).

 

4.1   Annual Information Form of Kinross Gold Corporation for the year ended December 31, 2011 (incorporated by reference to Exhibit 99.1 to Kinross Gold Corporation’s Form 40-F filed with the Securities and Exchange Commission on March 30, 2012 (the “Form 40-F”)).

 

4.2   The annual audited consolidated financial statements of Kinross Gold Corporation for the year ended December 31, 2011, including consolidated balance sheets as at December 31, 2011, December 31, 2010 and January 1, 2010 and the consolidated statements of operations, comprehensive income (loss), cash flows, and equity for the years ended December 31, 2011 and December 31, 2010 and related notes, together with the reports of the registered public accounting firm thereon (incorporated by reference to Exhibit 99.4 of the Form 40-F).

 

4.3   The management’s discussion and analysis of Kinross Gold Corporation for the financial year ended December 31, 2011 (incorporated by reference to Exhibit 99.2 of the Form 40-F).

 

4.4   The management information circular of Kinross dated March 23, 2012, in connection with the annual meeting of Kinross’ shareholders to be held on May 9, 2012 (incorporated by reference to Exhibit 99.1 to Kinross’ Form 6-K, furnished to the Commission on April 5, 2012).

 

5.1   Consent of KPMG LLP (included as Exhibit 23.1 to Form S-4).

 

5.2   Consent of Sullivan & Cromwell LLP, U.S. counsel to Kinross Gold Corporation and the guarantors named herein (included as Exhibit 23.2 to Form S-4).

 

5.3   Consent of Osler, Hoskin & Harcourt LLP, Canadian counsel to Kinross Gold Corporation, Aurelian Resources Inc. and Red Back Mining Inc. (included as Exhibit 23.3 to Form S-4).

 

5.4   Consent of Blake, Cassels & Graydown LLP, Canadian counsel to Red Back Mining Mauritania No. 2 Limited (included as Exhibit 23.4 to Form S-4).

 

5.5   Consent of Perkins Coie LLP, Alaska and Washington counsel to Crown Resources Corporation and Melba Creek Mining, Inc. (included as Exhibit 23.5 to Form S-4).

 

5.6   Consent of Marshall Diel & Myers Limited, Bermuda counsel to BGO (Bermuda) Ltd. (included as Exhibit 23.6 to Form S-4).

 



 

5.7   Consent of Veirano Advogados, Brazil counsel to Kinross Brasil Mineracao S.A. (included as Exhibit 23.7 to Form S-4).

 

5.8   Consent of Carey y Cia, Chilean counsel to Compania Minera Mantos de Oro and Compania Minera Maricunga (included as Exhibit 23.8 to Form S-4).

 

5.9   Consent of Parsons Behle & Latimer, Nevada counsel to Kinross Gold U.S.A., Inc. (included as Exhibit 23.9 to Form S-4).

 

5.10  Consent of Robert Henderson (included as Exhibit 23.10 to Form S-4).

 

5.11  Consent of Mark Sedore (included as Exhibit 23.11 to Form S-4).

 

5.12  Consent of Wayne Barnett (included as Exhibit 23.12 to Form S-4).

 

5.13  Consent of Marek Nowak (included as Exhibit 23.13 to Form S-4).

 

6.1   Powers of Attorney (included on the signature pages of this Registration Statement on Form F-9).

 

7.1   Indenture dated as of August 22, 2011 among Kinross Gold Corporation, as issuer, Aurelian Resources Inc., BGO (Bermuda) Ltd., Kinross Brasil Minera c ao S.A., Kinross Gold U.S.A. Inc., Crown Resources Corporation, Fairbanks Gold Mining, Inc., Melba Creek Mining, Inc., Compania Minera Mantos de Oro, Compania Minera Maricunga, Red Back Mauritania No. 2 Limited, Red Back Mining Inc. and Round Mountain Gold Corporation, as guarantors, and Wells Fargo Bank, National Association, as trustee (included as Exhibit 4.4 to Form S-4).

 



 

Exhibits to Form S-4

 

Exhibit No.

 

3.1        Certificate of Incorporation of BGO (Bermuda) Ltd.

 

3.2        Bye-laws of BGO (Bermuda) Ltd.

 

3.3        Articles of Incorporation of Kinross Brasil Mineracao S.A.

 

3.4        Articles of Incorporation of Kinross Gold U.S.A. Inc.

 

3.5        Bylaws of Kinross Gold U.S.A. Inc.

 

3.6        Articles of Incorporation of Crown Resources Corporation.

 

3.7        Bylaws of Crown Resources Corporation.

 

3.8        Certificate of Incorporation of Fairbanks Gold Mining, Inc.

 

3.9        Bylaws of Fairbanks Gold Mining, Inc.

 

3.10      Articles of Incorporation of Melba Creek Mining, Inc.

 

3.11      Bylaws of Melba Creek Mining, Inc.

 

3.12      Bylaws of Compania Minera Maricunga.

 

3.13      Bylaws of Compania Minera Mantos de Oro.

 

3.14      Certificate of Incorporation of Round Mountain Gold Corporation.

 

3.15      Bylaws of Round Mountain Gold Corporation.

 

4.1        Form of 3.625% Senior Notes due 2016 of Kinross Gold Corporation being registered pursuant to the Securities Act of 1933.

 

4.2        Form of 5.125% Senior Notes due 2021 of Kinross Gold Corporation being registered pursuant to the Securities Act of 1933.

 

4.3        Form of 6.875% Senior Notes due 2041 of Kinross Gold Corporation being registered pursuant to the Securities Act of 1933.

 

4.4        Indenture dated as of August 22, 2011 among Kinross Gold Corporation, as issuer, Aurelian Resources Inc., BGO (Bermuda) Ltd., Kinross Brasil Minera c ao S.A., Kinross Gold U.S.A. Inc., Crown Resources Corporation, Fairbanks Gold Mining, Inc., Melba Creek Mining, Inc., Compania Minera Mantos de Oro, Compania Minera Maricunga, Red Back Mauritania No. 2 Limited, Red Back Mining Inc. and Round Mountain Gold Corporation, as guarantors, and Wells Fargo Bank, National Association, as trustee.

 

4.5        Registration Rights Agreement dated as of August 22, 2011 among Kinross Gold Corporation, Aurelian Resources Inc., BGO (Bermuda) Ltd., Kinross Brasil Minera c ao S.A., Kinross Gold U.S.A. Inc., Crown Resources Corporation, Fairbanks Gold Mining, Inc., Melba Creek Mining, Inc., Compania Minera Mantos de Oro, Compania Minera Maricunga, Red Back Mauritania No. 2 Limited, Red Back Mining Inc. and Round Mountain Gold Corporation, as guarantors, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. LLC, UBS Securities LLC as representatives of the initial purchasers named therein.

 



 

5.1        Opinion of Sullivan & Cromwell LLP, U.S. counsel to Kinross Gold Corporation and the guarantors named herein.

 

5.2        Opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel to Kinross Gold Corporation, Aurelian Resources Inc. and Red Back Mining Inc..

 

5.3        Opinion of Blake, Cassels & Graydown LLP, Canadian counsel to Red Back Mining Mauritania No. 2 Limited.

 

5.4        Opinion of Perkins Coie LLP, Alaska and Washington counsel to Crown Resources Corporation and Melba Creek Mining, Inc..

 

5.5        Opinion of Marshall Diel & Myers Limited, Bermuda counsel to BGO (Bermuda) Ltd..

 

5.6        Opinion of Veirano Advogados, Brazil counsel to Kinross Brasil Minera c ao S.A..

 

5.7        Opinion of Carey y Cia, Chilean counsel to Compania Minera Mantos de Oro and Compania Minera Maricunga.

 

5.8        Opinion of Parsons Behle & Latimer, Nevada counsel to Kinross Gold U.S.A., Inc..

 

12.1         Statement of Computation of Ratio of Earnings to Fixed Charges.

 

23.1         Consent of KPMG LLP.

 

23.2         Consent of Sullivan & Cromwell LLP, U.S. counsel to Kinross Gold Corporation and the guarantors named herein (included in Exhibit 5.1 above).

 

23.3         Consent of Osler, Hoskin & Harcourt LLP, Canadian counsel to Kinross Gold Corporation, Aurelian Resources Inc. and Red Back Mining Inc. (included in Exhibit 5.2 above).

 

23.4         Consent of Blake, Cassels & Graydown LLP, Canadian counsel to Red Back Mining Mauritania No. 2 Limited. (included in Exhibit 5.3 above).

 

23.5         Consent of Perkins Coie LLP, Alaska and Washington counsel to Crown Resources Corporation and Melba Creek Mining, Inc. (included in Exhibit 5.4 above).

 

23.6         Consent of Marshall Diel & Myers Limited, Bermuda counsel to BGO (Bermuda) Ltd.. (included in Exhibit 5.5 above).

 

23.7         Consent of Veirano Advogados, Brazil counsel to Kinross Brasil Minera c ao S.A.. (included in Exhibit 5.6 above).

 

23.8         Consent of Carey y Cia, Chilean counsel to Compania Minera Mantos de Oro and Compania Minera Maricunga. (included in Exhibit 5.7 above).

 

23.9         Consent of Parsons Behle & Latimer, Nevada counsel to Kinross Gold U.S.A., Inc.. (included in Exhibit 5.8 above).

 

23.10       Consent of Robert Henderson.

 

23.11       Consent of Mark Sedore.

 

23.12       Consent of Wayne Barnett.

 

23.13       Consent of Marek Nowak.

 

24.1         Powers of Attorney (included on signature pages to the S-4 Registration Statement).

 

25.1         Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Wells Fargo Bank, National Association, as trustee, on Form T-1.

 

99.1         Form of Letter of Transmittal.

 

99.2         Form of Notice of Guaranteed Delivery.

 




QuickLinks

IMPORTANT NOTICE ABOUT INFORMATION IN THIS PROSPECTUS
TABLE OF CONTENTS
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
WHERE YOU CAN FIND MORE INFORMATION
NOTE REGARDING FORWARD-LOOKING STATEMENTS
NOTICE REGARDING PRESENTATION OF MINERAL RESERVE AND MINERAL RESOURCE ESTIMATES
EXCHANGE RATE INFORMATION
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES
PROSPECTUS SUMMARY
SUMMARY OF TERMS OF THE EXCHANGE OFFER
RISK FACTORS
KINROSS
EXCHANGE OFFER
USE OF PROCEEDS
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
CONSOLIDATED CAPITALIZATION
EARNINGS COVERAGE
DESCRIPTION OF THE NOTES AND GUARANTEES
U.S. FEDERAL INCOME TAX CONSIDERATIONS
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
PLAN OF DISTRIBUTION
INDEPENDENT CHARTERED ACCOUNTANTS
INTERESTS OF QUALIFIED PERSONS
VALIDITY OF NOTES AND GUARANTEES
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT

Exhibit 3.1

 

FORM NO. 6

 

Registration No. EC 21883

 

CERTIFICATE OF INCORPORATION

 

I hereby in accordance with section 14 of the Companies Act 1981 issue this Certificate of Incorporation and do certify that on the 25th day of April, 1996

 

BGO (Bermuda) Ltd.

 

was registered by me in the Register maintained by me under the provisions of the said section and that the status of the said company is that of an exempted company.

 

 

Given under my hand and the Seal of the REGISTRAR OF COMPANIES this 25th day of April , 1996 .

 

 

 

for Acting Registrar of Companies

 


 



Exhibit 3.2

 

BYE-LAWS

 

of

 

BGO (BERMUDA) LTD.

 

 

 

/s/ Susan Grant

 

 

Secretary

 

 

Adopted:  12 th  March, 2010

 



 

TABLE OF CONTENTS

 

Bye-Law

 

Page

 

 

 

1.

Interpretation

1

2.

Board of Directors

2

3.

Management of the Company

2

4.

Power to appoint managing director or chief executive officer

3

5.

Power to appoint manager

3

6.

Power to authorise specific actions

3

7.

Power to appoint attorney

3

8.

Power to delegate to a committee

4

9.

Power to appoint and dismiss employees

4

10.

Power to borrow and charge prooerty

4

11.

Exercise of power to purchase shares of or discontinue the Company

4

12.

Election of Directors

4

13.

Defects in appointment of Directors

5

14.

Alternate Directors

5

15.

Removal of Directors

5

16.

Vacancies on the Board

6

17.

Notice of meetings of the Board

6

18.

Quorum at meetings of the Board

7

19.

Meetings of the Board

7

20.

Unanimous written resolutions

7

21.

Contracts and disclosure of Directors’ interests

7

22.

Remuneration of Directors

8

23.

Officers of the Company

8

24.

Appointment of Officers

8

25.

Remuneration of Officers

9

26.

Duties of Officers

9

27.

Chairman of meetings

9

28.

Register of Directors and Officers

9

29.

Obligations of Board to keep minutes

10

30.

Indemnification of Directors and Officers of the Company

10

31.

Waiver of claim by Member

11

32.

Notice of annual general meeting

11

33.

Notice of special general meeting

11

34.

Accidental omission of notice of general meeting

11

35.

Meeting called on requisition of Members

12

36.

Short notice

12

37.

Postponement of meetings

12

38.

Quorum for general meeting

12

39.

Adjournment of meetings

13

40.

Attendance at meetings

13

41.

Written resolutions

13

42.

Attendance of Directors

14

43.

Voting at meetings

14

 

i



 

44.

Voting on show of hands

14

45.

Decision of chairman

14

46.

Demand for a poll

15

47.

Seniority of joint holders voting

16

48.

Instrument of proxy

16

49.

Representation of corporations at meetings

16

50.

Rights of shares

17

51.

Power to issue shares

17

52.

Variation of rights, alteration of share capital and purchase of shares of the Company

18

53.

Registered holder of shares

19

54.

Death of a joint holder

20

55.

Share certificates

20

56.

Calls on shares

20

57.

Forfeiture of shares

21

58.

Contents of Register of Members

21

59.

Inspection of Register of Members

21

60.

Determination of record dates

22

61.

Instrument of transfer

22

62.

Restriction on transfer

22

63.

Transfers by joint holders

23

64.

Representative of deceased Member

23

65.

Registration on death or bankruptcy

23

66.

Declaration of dividends by the Board

24

67.

Other distributions

24

68.

Reserve fund

24

69.

Deduction of Amounts due to the Company

24

70.

Issue of bonus shares

24

71.

Records of account

25

72.

Financial year end

25

73.

Financial statements

25

74.

Appointment of Auditor

25

75.

Remuneration of Auditor

26

76.

Vacation of office of Auditor

26

77.

Access to books of the Company

26

78.

Report of the Auditor

26

79.

Notices to Members of the Company

27

80.

Notices to joint Members

27

81.

Service and delivery of notice

27

82.

The seal

27

83.

Manner in which seal is to be affixed

27

84.

Winding-up/distribution by liquidator

28

85.

Alteration of Bye-laws

28

 

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INTERPRETATION

 

1.                                        Interpretation

 

(1)           In these Bye-laws the following words and expressions shall, where not inconsistent with the context, have the following meanings respectively:-

 

(a)                                   “Act” means the Companies Act 1981 as amended from time to time;

 

(b)                                  “Alternate Director” means an alternate Director appointed in accordance with these Bye-laws;

 

(c)                                   “Auditor” includes any individual or partnership;

 

(d)                                  “Board” means the Board of Directors appointed or elected pursuant to these Bye-laws and acting by resolution in accordance with the Act and these Bye-laws or the Directors present at a meeting of Directors at which there is a quorum;

 

(e)                                   “Company” means the company for which these Bye-laws are approved and confirmed;

 

(f)                                     “Director” means a director of the Company and shall include an Alternate Director;

 

(g)                                  “Member” means the person registered in the Register of Members as the holder of shares in the Company and, when two or more persons are so registered as joint holders of shares, means the person whose name stands first in the Register of Members as one of such joint holders or all of such persons as the context so requires;

 

(h)                                  “notice” means written notice as further defined in these Bye-laws unless otherwise specifically stated;

 

(i)                                      “Officer” means any person appointed by the Board to hold an office in the Company;

 

(j)                                      “Register of Directors and Officers” means the Register of Directors and Officers referred to in these Bye-laws;

 

(k)                                   “Register of Members” means the Register of Members referred to in these Bye-laws; and

 

(l)                                      “Secretary” means the person appointed to perform any or all the duties of secretary of the Company and includes any deputy or assistant secretary.

 



 

(2)           In these Bye-laws, where not inconsistent with the context:-

 

(a)                                   words denoting the plural number include the singular number and vice versa;

 

(b)                                  words denoting the masculine gender include the feminine gender;

 

(c)                                   words importing persons include companies, associations or bodies of persons whether corporate or not;

 

(d)                                  the word:-

 

(i)            “may” shall be construed as permissive;

 

(ii)           “shall” shall be construed as imperative; and

 

(e)                                   unless otherwise provided herein words or expressions defined in the Act shall bear the same meaning in these Bye-laws.

 

(3)           Expressions referring to writing or written shall, unless the contrary intention appears, include facsimile, printing, lithography, photography and other modes of representing words in a visible form.

 

(4)           Headings used in these Bye-laws are for convenience only and are not to be used or relied upon in the construction hereof.

 

BOARD OF DIRECTORS

 

2.                                        Board of Directors

 

The business of the Company shall be managed and conducted by the Board.

 

3.                                        Management of the Company

 

(1)           In managing the business of the Company, the Board may exercise all such powers of the Company as are not, by statute or by these Bye-laws, required to be exercised by the Company in general meeting subject, nevertheless, to these Bye-laws, the provisions of any statute and to such regulations as may be prescribed by the Company in general meeting.

 

(2)           No regulation or alteration to these Bye-laws made by the Company in general meeting shall invalidate any prior act of the Board which would have been valid if that regulation or alteration had not been made.

 

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(3)           The Board may procure that the Company pays all expenses incurred in promoting and incorporating the Company.

 

4.                                        Power to appoint managing director or chief executive officer

 

The Board may from time to time appoint one or more Directors to the office of managing director or chief executive officer of the Company who shall, subject to the control of the Board, supervise and administer all of the general business and affairs of the Company.

 

5.                                        Power to appoint manager

 

The Board may appoint a person to act as manager of the Company’s day to day business and may entrust to and confer upon such manager such powers and duties as it deems appropriate for the transaction or conduct of such business.

 

6.                                        Power to authorise specific actions

 

The Board may from time to time and at any time authorise any company, firm, person or body of persons to act on behalf of the Company for any specific purpose and in connection therewith to execute any agreement, document or instrument on behalf of the Company.

 

7.                                        Power to appoint attorney

 

The Board may from time to time and at any time by power of attorney appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be an attorney of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board) and for such period and subject to such conditions as it may think fit and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Board may think fit and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions so vested in the attorney. Such attorney may, if so authorised under the seal of the Company, execute any deed or instrument under such attorney’s personal seal with the same effect as the affixation of the seal of the Company.

 

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8.                                        Power to delegate to a committee

 

The Board may delegate any of its powers to a committee appointed by the Board and every such committee shall conform to such directions as the Board shall impose on them.

 

9.                                        Power to appoint and dismiss employees

 

The Board may appoint, suspend or remove any manager, secretary, clerk, agent or employee of the Company and may fix their remuneration and determine their duties.

 

10.                                  Power to borrow and charge property

 

The Board may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital, or any part thereof, and may issue debentures, debenture stock and other securities whether outright or as security for any debt, liability or obligation of the Company or any third party.

 

11.                                  Exercise of power to purchase shares of or discontinue the Company

 

(1)           The Board may exercise all the powers of the Company to purchase all or any part of its own shares pursuant to Section 42A of the Act.

 

(2)           The Board may exercise all the powers of the Company to discontinue the Company to a named country or jurisdiction outside Bermuda pursuant to Section 132G of the Act.

 

12.                                  Election of Directors

 

The Board shall consist of not less than two Directors or such number in excess thereof as the Members may from time to time determine who shall be elected or appointed in the first place at the statutory meeting of the Company and thereafter, except in the case of casual vacancy, at the annual general meeting or at any special general meeting called for the purpose and who shall hold office for such term as the Members may determine or, in the absence of such determination, until the next annual general meeting or until their successors are elected or appointed or their office is otherwise vacated, and any general meeting may authorise the Board to fill any vacancy in their number left unfilled at a general meeting.

 

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13.                                  Defects in appointment of Directors

 

All acts done bona fide by any meeting of the Board or by a committee of the Board or by any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director.

 

14.                                  Alternate Directors

 

(1)           Any general meeting of the Company may elect a person or persons to act as a Director in the alternative to any one or more of the Directors of the Company or may authorise the Board to appoint such Alternate Directors. Unless the Members otherwise resolve, any Director may appoint a person or persons to act as a Director in the alternative to himself or herself by notice in writing deposited with the Secretary. Any person so appointed shall have all the rights and powers of the Director or Directors for whom such person is appointed in the alternative provided that such person shall not be counted more than once in determining whether or not a quorum is present.

 

(2)           An Alternate Director shall be entitled to receive notice of all meetings of the Board and to attend and vote at any such meeting at which a Director for whom such Alternate Director was appointed in the alternative is not personally present and generally to perform at such meeting all the functions of such Director for whom such Alternate Director was appointed.

 

(3)           An Alternate Director shall cease to be such if the Director for whom such Alternate Director was appointed ceases for any reason to be a Director but may be re-appointed by the Board as alternate to the person appointed to fill the vacancy in accordance with these Bye-laws.

 

15.                                  Removal of Directors

 

(1)           Subject to any provision to the contrary in these Bye-laws, the Members may, at any special general meeting convened and held in accordance with these Bye-laws, remove a Director provided that the notice of any such meeting convened for the purpose of removing a Director shall contain a statement of the intention so to do and be served on such Director not less

 

5



 

than 14 days before the meeting and at such meeting such Director shall be entitled to be heard on the motion for such Director’s removal.

 

(2)           A vacancy on the Board created by the removal of a Director under the provisions of subparagraph (1) of this Bye-law may be filled by the Members at the meeting at which such Director is removed and, in the absence of such election or appointment, the Board may fill the vacancy.

 

16.                                  Vacancies on the Board

 

(1)           The Board shall have the power from time to time and at any time to appoint any person as a Director to fill a vacancy on the Board occurring as the result of the death, disability, disqualification or resignation of any Director and to appoint an Alternate Director to any Director so appointed.

 

(2)           The Board may act notwithstanding any vacancy in its number but, if and so long as its number is reduced below the number fixed by these Bye-laws as the quorum necessary for the transaction of business at meetings of the Board, the continuing Directors or Director may act for the purpose of (i) summoning a general meeting of the Company or (ii) preserving the assets of the Company.

 

(3)           The office of Director shall be vacated if the Director:-

 

(a)                                   is removed from office pursuant to these Bye-laws or is prohibited from being a Director by law;

 

(b)                                  is or becomes bankrupt or makes any arrangement or composition with his creditors generally;

 

(c)                                   is or becomes of unsound mind or dies;

 

(d)                                  resigns his or her office by notice in writing to the Company.

 

17.                                  Notice of meetings of the Board

 

(1)           A Director may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Board.

 

(2)           Notice of a meeting of the Board shall be deemed to be duly given to a Director if it is given to such Director verbally in person or by telephone or otherwise communicated or sent to such Director by post, cable, telex, telecopier, facsimile or other mode of representing

 

6



 

words in a legible and non-transitory form at such Director’s last known address or any other address given by such Director to the Company for this purpose.

 

18.                                  Quorum at meetings of the Board

 

The quorum necessary for the transaction of business at a meeting of the Board shall be four directors, with majority approval of directors in attendance at a meeting in person or by teleconference or unanimous written resolution signed by all the directors.

 

19.                                  Meetings of the Board

 

(1)           The Board may meet for the transaction of business, adjourn and otherwise regulate its meetings as it sees fit.

 

(2)           Directors may participate in any meeting of the Board by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting.

 

(3)           A resolution put to the vote at a meeting of the Board shall be carried by the affirmative votes of a majority of the votes cast and in the case of an equality of votes the resolution shall fail.

 

20.                                  Unanimous written resolutions

 

A resolution in writing signed by all the Directors which may be in counterparts, shall be as valid as if it had been passed at a meeting of the Board duly called and constituted, such resolution to be effective on the date on which the last Director signs the resolution. For the purposes of this Bye-law only, “Director” shall not include an Alternate Director.

 

21.                                  Contracts and disclosure of Directors’ interests

 

(1)           Any Director, or any Director’s firm, partner or any company with whom any Director is associated, may act in a professional capacity for the Company and such Director or such Director’s firm, partner or such company shall be entitled to remuneration for professional services as if such Director were not a Director, provided that nothing herein contained shall authorise a Director or Director’s firm, partner or such company to act as Auditor of the Company.

 

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(2)           A Director who is directly or indirectly interested in a contract or proposed contract or arrangement with the Company shall declare the nature of such interest as required by the Act.

 

(3)           Following a declaration being made pursuant to this Bye-law, and unless disqualified by the chairman of the relevant Board meeting, a Director may vote in respect of any contract or proposed contract or arrangement in which such Director is interested and may be counted in the quorum at such meeting.

 

22.                                  Remuneration of Directors

 

The remuneration, (if any) of the Directors shall be determined by the Company in general meeting and shall be deemed to accrue from day to day. The Directors may also be paid all travel, hotel and other expenses properly incurred by them in attending and returning from meetings of the Board, any committee appointed by the Board, general meetings of the Company, or in connection with the business of the Company or their duties as Directors generally.

 

OFFICERS

 

23.                                  Officers of the Company

 

The Officers of the Company shall consist of a President and a Vice President or a Chairman and a deputy Chairman, a Secretary and such additional Officers as the Board may from time to time determine all of whom shall be deemed to be Officers for the purposes of these Bye-laws.

 

24.                                  Appointment of Officers

 

(1)           The Board shall, as soon as possible after the statutory meeting of Members and after each annual general meeting appoint a President and Vice President or a Chairman and Deputy Chairman who shall be Directors.

 

(2)           The Secretary and additional Officers, if any, shall be appointed by the Board from time to time.

 

8



 

25.                                  Remuneration of Officers

 

The Officers shall receive such remuneration as the Board may from time to time determine.

 

26.                                  Duties of Officers

 

The Officers shall have such powers and perform such duties in the management, business and affairs of the Company as may be delegated to them by the Board from time to time.

 

27.                                  Chairman of meetings

 

Unless otherwise agreed by a majority of those attending and entitled to attend and vote thereat, the Chairman, if there be one, and if not the President shall act as chairman at all meetings of the Members and of the Board at which such person is present. In their absence the Deputy Chairman or Vice President, if present, shall act as chairman and in the absence of all of them a chairman shall be appointed or elected by those present at the meeting and entitled to vote.

 

28.                                  Register of Directors and Officers

 

(1)           The Board shall cause to be kept in one or more books at its registered office a Register of Directors and Officers and shall enter therein the following particulars with respect to each Director and the President, each Vice-President, the Chairman, and each Deputy Chairman, provided that each such person is a Director and the Secretary, that is to say:

 

(a)                                   first name and surname; and

 

(b)                                  address.

 

(2)           The Board shall, within the period of fourteen days from the occurrence of-

 

(a)                                   any change among its Directors, the President, any Vice-President, the Chairman, and any Deputy Chairman, provided that each such person is a Director, and in the Secretary; or

 

(b)                                  any change in the particulars contained in the Register of Directors and Officers,

 

cause to be entered on the Register of Directors and Officers the particulars of such change and the date on which such change occurred.

 

9



 

(3)           The Register of Directors and Officers shall be open to inspection at the office of the Company on every business day, subject to such reasonable restrictions as the Board may impose, so that not less than two hours in each business day be allowed for inspection.

 

MINUTES

 

29.                                  Obligations of Board to keep minutes

 

The Board shall cause minutes to be duly entered in books provided for the purpose:-

 

(a)                                   of all elections and appointments of Officers;

 

(b)                                  of the names of the Directors present at each meeting of the Board and of any committee appointed by the Board; and

 

(c)                                   of all resolutions and proceedings of general meetings of the Members, meetings of the Board, meetings of managers and meetings of committees appointed by the Board.

 

INDEMNITY

 

30.                                  Indemnification of Directors and Officers of the Company

 

The Directors, Secretary and other Officers for the time being of the Company and the liquidator or trustees (if any) for the time being acting in relation to any of the affairs of the Company and every one of them, and their heirs, executors and administrators, shall be indemnified and secured harmless out of the assets of the Company from and against all actions, costs, charges, losses, damages and expenses which they or any of them, their heirs, executors or administrators, shall or may incur or sustain by or by reason of any act done, concurred in or omitted in or about the execution of their duty, or supposed duty, or in their respective offices or trusts, and none of them shall be answerable for the acts, receipts, neglects or defaults of the others of them or for joining in any receipts for the sake of conformity, or for any bankers or other persons with whom any moneys or effects belonging to the Company shall or may be lodged or deposited for safe custody, or for insufficiency or deficiency of any security upon which any moneys of or belonging to the Company shall be placed out on or invested, or for any other loss, misfortune or damage which may happen in the execution of their respective offices or trusts, or in relation thereto, PROVIDED THAT this indemnity shall not extend to any matter

 

10



 

in respect of any wilful negligence, wilful default, fraud or dishonesty which may attach to any of said persons.

 

31.                                  Waiver of claim by Member

 

Each Member agrees to waive any claim or right of action such Member might have, whether individually or by or in the right of the Company, against any Director or Officer on account of any action taken by such Director or Officer, or the failure of such Director or Officer to take any action in the performance of his duties with or for the Company, PROVIDED THAT such waiver shall not extend to any matter in respect of any wilful negligence, wilful default, fraud or dishonesty which may attach to such Director or Officer.

 

MEETINGS

 

32.                                  Notice of annual general meeting

 

The annual general meeting of the Company shall be held in each year other than the year of incorporation at such time and place as the President or the Chairman or any two Directors or any Director and the Secretary or the Board shall appoint. At least five days notice of such meeting shall be given to each Member stating the date, place and time at which the meeting is to be held, that the election of Directors will take place thereat, and as far as practicable, the other business to be conducted at the meeting.

 

33.                                  Notice of special general meeting

 

The President or the Chairman or any two Directors or any Director and the Secretary or the Board may convene a special general meeting of the Company whenever in their judgment such a meeting is necessary, upon not less than five days’ notice which shall state the date, time, place and the general nature of the business to be considered at the meeting.

 

34.                                  Accidental omission of notice of general meeting

 

The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a general meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting.

 

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35.                                  Meeting called on requisition of Members

 

Notwithstanding anything herein, the Board shall, on the requisition of Members holding at the date of the deposit of the requisition not less than one-tenth of such of the paid-up share capital of the Company as at the date of the deposit carries the right to vote at general meetings of the Company, forthwith proceed to convene a special general meeting of the Company and the provisions of section 74 of the Act shall apply.

 

36.                                  Short notice

 

A general meeting of the Company shall, notwithstanding that it is called by shorter notice than that specified in these Bye-laws, be deemed to have been properly called if it is so agreed by (i) all the Members entitled to attend and vote thereat in the case of an annual general meeting; and (ii) by a majority in number of the Members having the right to attend and vote at the meeting, being a majority together holding not less than 95% in nominal value of the shares giving a right to attend and vote thereat in the case of a special general meeting.

 

37.                                  Postponement of meetings

 

The Board may postpone any general meeting called in accordance with the provisions of these Bye-laws (other than a meeting requisitioned under these Bye-laws) provided that notice of postponement is given to each Member before the time for such meeting. Fresh notice of the date, time and place for the postponed meeting shall be given to each Member in accordance with the provisions of these Bye-laws.

 

38.                                  Quorum for general meeting

 

At any general meeting of the Company two persons present in person and representing in person or by proxy in excess of 50% of the total issued voting shares in the Company throughout the meeting shall form a quorum for the transaction of business, PROVIDED that if the Company shall at any time have only one Member, one Member present in person or by proxy shall form a quorum for the transaction of business at any general meeting of the Company held during such time. If within half an hour from the time appointed for the meeting a quorum is not present, the meeting shall stand adjourned to the same day one week later, at the same time and place or to such other day, time or place as the Board may determine.

 

12



 

39.                                  Adjournment of meetings

 

The chairman of a general meeting may, with the consent of the Members at any general meeting at which a quorum is present (and shall if so directed), adjourn the meeting.  Unless the meeting is adjourned to a specific date and time, fresh notice of the date, time and place for the resumption of the adjourned meeting shall be given to each Member in accordance with the provisions of these Bye-laws.

 

40.                                  Attendance at meetings

 

Members may participate in any general meeting by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting.

 

41.                                  Written resolutions

 

(1)           Subject to subparagraph (6), anything which may be done by resolution of the Company in general meeting or by resolution of a meeting of any class of the Members of the Company, may, without a meeting and without any previous notice being required, be done by resolution in writing signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, all the Members who at the date of the resolution would be entitled to attend the meeting and vote on the resolution.

 

(2)           A resolution in writing may be signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, all the Members, or any class thereof, in as many counterparts as may be necessary.

 

(3)           For the purposes of this Bye-law, the date of the resolution is the date when the resolution is signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, the last Member to sign and any reference in any Bye-law to the date of passing of a resolution is, in relation to a resolution made in accordance with this Bye-law, a reference to such date.

 

(4)           A resolution in writing made in accordance with this Bye-law is as valid as if it had been passed by the Company in general meeting or by a meeting of the relevant class of Members, as the case may be, and any reference in any Bye-law to a meeting at which a

 

13



 

resolution is passed or to Members voting in favour of a resolution shall be construed accordingly.

 

(5)           A resolution in writing made in accordance with this Bye-law shall constitute minutes for the purposes of sections 81 and 82 of the Act.

 

(6)           This Bye-law shall not apply to:-

 

(a)                                   a resolution passed pursuant to section 89(5) of the Act; or

 

(b)                                  a resolution passed for the purpose of removing a Director before the expiration of his term of office under these Bye laws.

 

42.                                  Attendance of Directors

 

The Directors of the Company shall be entitled to receive notice of and to attend and be heard at any general meeting.

 

43.                                  Voting at meetings

 

(1)           Subject to the provisions of the Act and these Bye-laws, any question proposed for the consideration of the Members at any general meeting shall be decided by the affirmative votes of a majority of the votes cast in accordance with the provisions of these Bye-laws and in the case of an equality of votes the resolution shall fail.

 

(2)        No Member shall be entitled to vote at any general meeting unless such Member has paid all the calls on all shares held by such Member.

 

44.                                  Voting on show of hands

 

At any general meeting a resolution put to the vote of the meeting shall, in the first instance, be voted upon by a show of hands and, subject to any rights or restrictions for the time being lawfully attached to any class of shares and subject to the provisions of these Bye-laws, every Member present in person and every person holding a valid proxy at such meeting shall be entitled to one vote and shall cast such vote by raising his or her hand.

 

45.                                  Decision of chairman

 

At any general meeting a declaration by the chairman of the meeting that a question proposed for consideration has, on a show of hands, been carried, or carried unanimously, or

 

14



 

by a particular majority, or lost, and an entry to that effect in a book containing the minutes of the proceedings of the Company shall, subject to the provisions of these Bye-laws, be conclusive evidence of that fact.

 

46.                                  Demand for a poll

 

(1)           Notwithstanding the provisions of the immediately preceding two Bye-laws, at any general meeting of the Company, in respect of any question proposed for the consideration of the Members (whether before or on the declaration of the result of a show of hands as provided for in these Bye-laws), a poll may be demanded by any of the following persons:-

 

(a)                                   the chairman of such meeting; or

 

(b)                                  at least three Members present in person or represented by proxy; or

 

(c)                                   any Member or Members present in person or represented by proxy and holding between them not less than one-tenth of the total voting rights of all the Members having the right to vote at such meeting; or

 

(d)                                  any Member or Members present in person or represented by proxy holding shares in the Company conferring the right to vote at such meeting, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all such shares conferring such right.

 

(2)           Where, in accordance with the provisions of subparagraph (1) of this Bye-law, a poll is demanded, subject to any rights or restrictions for the time being lawfully attached to any class of shares, every person present at such meeting shall have one vote for each share of which such person is the holder or for which such person holds a proxy and such vote shall be counted in the manner set out in sub-paragraph (4) of this Bye-Law or in the case of a general meeting at which one or more Members are present by telephone in such manner as the chairman of the meeting may direct and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded and shall replace any previous resolution upon the same matter which has been the subject of a show of hands.

 

(3)           A poll demanded in accordance with the provisions of subparagraph (1) of this Bye-law, for the purpose of electing a chairman or on a question of adjournment, shall be taken forthwith and a poll demanded on any other question shall be taken in such manner and at such

 

15



 

time and place as the chairman may direct and any business other than that upon which a poll has been demanded may be proceeded with pending the taking of the poll.

 

(4)           Where a vote is taken by poll, each person present and entitled to vote shall be furnished with a ballot paper on which such person shall record his or her vote in such manner as shall be determined at the meeting having regard to the nature of the question on which the vote is taken, and each ballot paper shall be signed or initialled or otherwise marked so as to identify the voter and the registered holder in the case of a proxy. At the conclusion of the poll, the ballot papers shall be examined and counted by a committee of not less than two Members or proxy holders appointed by the chairman for the purpose and the result of the poll shall be declared by the chairman.

 

47.                                  Seniority of joint holders voting

 

In the case of joint holders the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.

 

48.                                  Instrument of proxy

 

The instrument appointing a proxy shall be in writing in the form, or as near thereto as circumstances admit, of Form “A” in the Schedule hereto, under the hand of the appointor or of the appointor’s attorney duly authorised in writing, or if the appointor is a corporation, either under its seal, or under the hand of a duly authorised officer or attorney. The decision of the chairman of any general meeting as to the validity of any instrument of proxy shall be final.

 

49.                                  Representation of corporations at meetings

 

A corporation which is a Member may, by written instrument, authorise such person as it thinks fit to act as its representative at any meeting of the Members and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which such person represents as that corporation could exercise if it were an individual Member. Notwithstanding the foregoing, the chairman of the meeting may accept such assurances as he or she thinks fit

 

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as to the right of any person to attend and vote at general meetings on behalf of a corporation which is a Member.

 

SHARE CAPITAL AND SHARES

 

50.                                  Shares

 

Subject to any resolution of the Members to the contrary and without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, the share capital of the Company shall be divided into shares of two classes of shares as follows: (i) Common Shares; and (ii) Class A Common Shares, each of which class of shares shall have the attributes set out below, subject to the provisions of these Bye-laws:

 

Common Shares shall :

 

(a)                                   have a par value of US$1.00 per share;

 

(b)                                  be entitled to one vote per share;

 

(c)                                   be entitled to such dividends as the Board may from time to time declare;

 

(d)                                  in the event of winding-up or dissolution of the Company, whether voluntary or involuntary for the purpose of a reorganization or otherwise or upon distribution of capital, entitled to surplus assets of the Company; and

 

(e)                                   generally be entitled to enjoy all of the rights attaching to shares.

 

Class A Common Shares shall :

 

(a)                                   have a par value of US$2.00 per share;

 

(b)                                  be entitled to two votes per share;

 

(c)                                   be entitled to such dividends as the Board may from time to time declare;

 

(d)                                  in the event of winding-up or dissolution of the Company, whether voluntary or involuntary for the purpose of a reorganization or otherwise or upon distribution of capital, entitled to surplus assets of the Company; and

 

(e)                                   generally be entitled to enjoy all of the rights attaching to shares.

 

51.                                  Power to issue shares

 

(1)           Subject to these Bye-laws and to any resolution of the Members to the contrary and without prejudice to any special rights previously conferred on the holders of any existing

 

17



 

shares or class of shares, the Board shall have power to issue any unissued shares of the Company on such terms and conditions as it may determine and any shares or class of shares may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise as the Company may from time to time by resolution of the Members prescribe.

 

(2)           The Board shall, in connection with the issue of any share, have the power to pay such commission and brokerage as may be permitted by law.

 

(3)           The Company shall not give, whether directly or indirectly, whether by means of loan, guarantee, provision of security or otherwise, any financial assistance for the purpose of a purchase or subscription made or to be made by any person of or for any shares in the Company, but nothing in this Bye-Law shall prohibit transactions mentioned in Sections 39A, 39B and 39C of the Act.

 

(4)           The Company may from time to time do any one or more of the following things:

 

(a)                                   make arrangements on the issue of shares for a difference between the Members in the amounts and times of payments of calls on their shares;

 

(b)                                  accept from any Member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up;

 

(c)                                   pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others;

 

(d)                                  and issue its shares in fractional denominations and deal with such fractions to the same extent as its whole shares and shares in fractional denominations shall have in proportion to the respective fractions represented thereby all of the rights of whole shares including (but without limiting the generality of the foregoing) the right to vote, to receive dividends and distributions and to participate in a winding up.

 

52.                                  Variation of rights, alteration of share capital and purchase of shares of the Company

 

(1)           Subject to the provisions of Sections 42 and 43 of the Act any preference shares may be issued or converted into shares that, at a determinable date or at the option of the Company, are liable to be redeemed on such terms and in such manner as the Company before the issue or conversion may by resolution of the Members determine.

 

18


 

(2)           If at any time the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not the Company is being wound-up, be varied with the consent in writing of the holders of three-fourths of the issued shares of that class or with the sanction of a resolution passed by a majority of the votes cast at a separate general meeting of the holders of the shares of the class in accordance with Section 47 (7) of the Act. The rights conferred upon the holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith.

 

(3)           The Company may from time to time by resolution of the Members change the currency denomination of, increase, alter or reduce its share capital in accordance with the provisions of Sections 45 and 46 of the Act. Where, on any alteration of share capital, fractions of shares or some other difficulty would arise, the Board may deal with or resolve the same in such manner as it thinks fit including, without limiting the generality of the foregoing, the issue to Members, as appropriate, of fractions of shares and/or arranging for the sale or transfer of the fractions of shares of Members.

 

(4)           The Company may from time to time purchase its own shares in accordance with the provisions of Section 42A of the Act.

 

53.                                  Registered holder of shares

 

(1)           The Company shall be entitled to treat the registered holder of any share as the absolute owner thereof and accordingly shall not be bound to recognise any equitable or other claim to, or interest in, such share on the part of any other person.

 

(2)           Any dividend, interest or other moneys payable in cash in respect of shares may be paid by cheque or draft sent through the post directed to the Member at such Member’s address in the Register of Members or, in the case of joint holders, to such address of the holder first named in the Register of Members, or to such person and to such address as the holder or joint holders may in writing direct. If two or more persons are registered as joint holders of any shares any one can give an effectual receipt for any dividend paid in respect of such shares.

 

19



 

54.                                  Death of a joint holder

 

Where two or more persons are registered as joint holders of a share or shares then in the event of the death of any joint holder or holders the remaining joint holder or holders shall be absolutely entitled to the said share or shares and the Company shall recognise no claim in respect of the estate of any joint holder except in the case of the last survivor of such joint holders.

 

55.                                  Share certificates

 

(1)           Every Member shall be entitled to a certificate under the seal of the Company (or a facsimile thereof) specifying the number and, where appropriate, the class of shares held by such Member and whether the same are fully paid up and, if not, how much has been paid thereon. The Board may by resolution determine, either generally or in a particular case, that any or all signatures on certificates may be printed thereon or affixed by mechanical means.

 

(2)           The Company shall be under no obligation to complete and deliver a share certificate unless specifically called upon to do so by the person to whom such shares have been allotted.

 

(3)           If any such certificate shall be proved to the satisfaction of the Board to have been worn out, lost, mislaid or destroyed the Board may cause a new certificate to be issued and request an indemnity for the lost certificate if it sees fit.

 

56.                                  Calls on shares

 

(1)           The Board may from time to time make such calls as it thinks fit upon the Members in respect of any monies unpaid on the shares allotted to or held by such Members and, if a call is not paid on or before the day appointed for payment thereof, the Member may at the discretion of the Board be liable to pay the Company interest on the amount of such call at such rate as the Board may determine, from the date when such call was payable up to the actual date of payment. The joint holders of a share shall be jointly and severally liable to pay all calls in respect thereof.

 

(2)           The Board may, on the issue of shares, differentiate between the holders as to the amount of calls to be paid and the times of payment of such calls.

 

20



 

57.                                  Forfeiture of shares

 

(1)           If any Member fails to pay, on the day appointed for payment thereof, any call in respect of any share allotted to or held by such Member, the Board may, at any time thereafter during such time as the call remains unpaid, direct the Secretary to forward to such Member a notice in the form, or as near thereto as circumstances admit, of Form “B” in the Schedule hereto.

 

(2)           If the requirements of such notice are not complied with, any such share may at any time thereafter before the payment of such call and the interest due in respect thereof be forfeited by a resolution of the Board to that effect, and such share shall thereupon become the property of the Company and may be disposed of as the Board shall determine.

 

(3)           A Member whose share or shares have been forfeited as aforesaid shall, notwithstanding such forfeiture, be liable to pay to the Company all calls owing on such share or shares at the time of the forfeiture and all interest due thereon.

 

REGISTER OF MEMBERS

 

58.                                  Contents of Register of Members

 

The Board shall cause to be kept in one or more books a Register of Members and shall enter therein the following particulars:-

 

(a)                                   the name and address of each Member, the number and, where appropriate, the class of shares held by such Member and the amount paid or agreed to be considered as paid on such shares;

 

(b)                                  the date on which each person was entered in the Register of Members; and

 

(c)                                   the date on which any person ceased to be a Member for one year after such person so ceased.

 

59.                                  Inspection of Register of Members

 

The Register of Members shall be open to inspection at the registered office of the Company on every business day, subject to such reasonable restrictions as the Board may impose, so that not less than two hours in each business day be allowed for inspection. The Register of Members may, after notice has been given by advertisement in an appointed

 

21



 

newspaper to that effect, be closed for any time or times not exceeding in the whole thirty days in each year.

 

60.                                  Determination of record dates

 

Notwithstanding any other provision of these Bye-laws, the Board may fix any date as the record date for:-

 

(a)                                   determining the Members entitled to receive any dividend; and

 

(b)                                  determining the Members entitled to receive notice of and to vote at any general meeting of the Company.

 

TRANSFER OF SHARES

 

61.                                  Instrument of transfer

 

(1)           An instrument of transfer shall be in the form or as near thereto as circumstances admit of Form “C” in the Schedule hereto or in such other common form as the Board may accept. Such instrument of transfer shall be signed by or on behalf of the transferor and transferee provided that, in the case of a fully paid share, the Board may accept the instrument signed by or on behalf of the transferor alone. The transferor shall be deemed to remain the holder of such share until the same has been transferred to the transferee in the Register of Members.

 

(2)           The Board may refuse to recognise any instrument of transfer unless it is accompanied by the certificate in respect of the shares to which it relates and by such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer.

 

62.                                  Restriction on transfer

 

(1)           The Board may in its absolute discretion and without assigning any reason therefor refuse to register the transfer of a share. The Board shall refuse to register a transfer unless all applicable consents, authorisations and permissions of any governmental body or agency in Bermuda have been obtained.

 

22



 

(2)           If the Board refuses to register a transfer of any share the Secretary shall, within three months after the date on which the transfer was lodged with the Company, send to the transferor and transferee notice of the refusal.

 

63.                                  Transfers by joint holders

 

The joint holders of any share or shares may transfer such share or shares to one or more of such joint holders, and the surviving holder or holders of any share or shares previously held by them jointly with a deceased Member may transfer any such share to the executors or administrators of such deceased Member.

 

TRANSMISSION OF SHARES

 

64.                                  Representative of deceased Member

 

In the case of the death of a Member, the survivor or survivors where the deceased Member was a joint holder, and the legal personal representatives of the deceased Member where the deceased Member was a sole holder, shall be the only persons recognised by the Company as having any title to the deceased Member’s interest in the shares. Nothing herein contained shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by such deceased Member with other persons. Subject to the provisions of Section 52 of the Act, for the purpose of this Bye-law, legal personal representative means the executor or administrator of a deceased Member or such other person as the Board may in its absolute discretion decide as being properly authorised to deal with the shares of a deceased Member.

 

65.                                  Registration on death or bankruptcy

 

Any person becoming entitled to a share in consequence of the death or bankruptcy of any Member may be registered as a Member upon such evidence as the Board may deem sufficient or may elect to nominate some person to be registered as a transferee of such share, and in such case the person becoming entitled shall execute in favour of such nominee an instrument of transfer in the form, or as near thereto as circumstances admit, of Form “D” in the Schedule hereto. On the presentation thereof to the Board, accompanied by such evidence as the Board may require to prove the title of the transferor, the transferee shall be registered as a Member but the Board shall, in either case, have the same right to decline or suspend registration as it

 

23



 

would have had in the case of a transfer of the share by that Member before such Member’s death or bankruptcy, as the case may be.

 

DIVIDENDS AND OTHER DISTRIBUTIONS

 

66.                                  Declaration of dividends by the Board

 

The Board may, subject to these Bye-laws and in accordance with Section 54 of the Act, declare a dividend to be paid to the Members, in proportion to the number of shares held by them, and such dividend may be paid in cash or wholly or partly in specie in which case the Board may fix the value for distribution in specie of any assets.

 

67.                                  Other distributions

 

The Board may declare and make such other distributions (in cash or in specie) to the Members as may be lawfully made out of the assets of the Company.

 

68.                                  Reserve fund

 

The Board may from time to time before declaring a dividend set aside, out of the surplus or profits of the Company, such sum as it thinks proper as a reserve fund to be used to meet contingencies or for equalising dividends or for any other special purpose.

 

69.                                  Deduction of Amounts due to the Company

 

The Board may deduct from the dividends or distributions payable to any Member all monies due from such Member to the Company on account of calls or otherwise.

 

CAPITALISATION

 

70.                                  Issue of bonus shares

 

(1)           The Board may resolve to capitalise any part of the amount for the time being standing to the credit of any of the Company’s share premium or other reserve accounts or to the credit of the profit and loss account or otherwise available for distribution by applying such sum in paying up unissued shares to be allotted as fully paid bonus shares pro rata to the Members.

 

(2)           The Company may capitalise any sum standing to the credit of a reserve account or sums otherwise available for dividend or distribution by applying such amounts in paying up in

 

24



 

full partly paid shares of those Members who would have been entitled to such sums if they were distributed by way of dividend or distribution.

 

ACCOUNTS AND FINANCIAL STATEMENTS

 

71.                                  Records of account

 

The Board shall cause to be kept proper records of account with respect to all transactions of the Company and in particular with respect to:-

 

(a)                                   all sums of money received and expended by the Company and the matters in respect of which the receipt and expenditure relates;

 

(b)                                  all sales and purchases of goods by the Company; and

 

(c)                                   the assets and liabilities of the Company.

 

Such records of account shall be kept at the registered office of the Company or, subject to Section 83 (2) of the Act, at such other place as the Board thinks fit and shall be available for inspection by the Directors during normal business hours.

 

72.                                  Financial year end

 

The financial year end of the Company may be determined by resolution of the Board and failing such resolution shall be 31st December in each year.

 

73.                                  Financial statements

 

Subject to any rights to waive laying of accounts pursuant to Section 88 of the Act, financial statements as required by the Act shall be laid before the Members in general meeting.

 

AUDIT

 

74.                                  Appointment of Auditor

 

Subject to Section 88 of the Act, at the annual general meeting or at a subsequent special general meeting in each year, an independent representative of the Members shall be appointed by them as Auditor of the accounts of the Company. Such Auditor may be a Member but no Director, Officer or employee of the Company shall, during his or her continuance in office, be eligible to act as an Auditor of the Company.

 

25



 

75.                                  Remuneration of Auditor

 

The remuneration of the Auditor shall be fixed by the Company in general meeting or in such manner as the Members may determine.

 

76.                                  Vacation of office of Auditor

 

If the office of Auditor becomes vacant by the resignation or death of the Auditor, or by the Auditor becoming incapable of acting by reason of illness or other disability at a time when the Auditor’s services are required, the Board shall, as soon as practicable, convene a special general meeting to fill the vacancy thereby created.

 

77.                                  Access to books of the Company

 

The Auditor shall at all reasonable times have access to all books kept by the Company and to all accounts and vouchers relating thereto, and the Auditor may call on the Directors or Officers of the Company for any information in their possession relating to the books or affairs of the Company.

 

78.                                  Report of the Auditor

 

(1)           Subject to any rights to waive laying of accounts or appointment of an Auditor pursuant to Section 88 of the Act, the accounts of the Company shall be audited at least once in every year.

 

(2)           The financial statements provided for by these Bye-laws shall be audited by the Auditor in accordance with generally accepted auditing standards. The Auditor shall make a written report thereon in accordance with generally accepted auditing standards and the report of the Auditor shall be submitted to the Members in general meeting.

 

(3)           The generally accepted auditing standards referred to in subparagraph (2) of this Bye-law may be those of a country or jurisdiction other than Bermuda. If so, the financial statements and the report of the Auditor must disclose this fact and name such country or jurisdiction.

 

26



 

NOTICES

 

79.                                  Notices to Members of the Company

 

A notice may be given by the Company to any Member either by delivering it to such Member in person or by sending it to such Member’s address in the Register of Members or to such other address given for the purpose. For the purposes of this Bye-law, a notice may be sent by mail, courier service, cable, telex, telecopier, facsimile or other mode of representing words in a legible and non-transitory form.

 

80.                                  Notices to joint Members

 

Any notice required to be given to a Member shall, with respect to any shares held jointly by two or more persons, be given to whichever of such persons is named first in the Register of Members and notice so given shall be sufficient notice to all the holders of such shares.

 

81.                                  Service and delivery of notice

 

Any notice shall be deemed to have been served at the time when the same would be delivered in the ordinary course of transmission and, in proving such service, it shall be sufficient to prove that the notice was properly addressed and prepaid, if posted, and the time when it was posted, delivered to the courier or to the cable company or transmitted by telex, facsimile or other method as the case may be.

 

SEAL OF THE COMPANY

 

82.                                  The seal

 

The seal of the Company shall be in such form as the Board may from time to time determine. The Board may adopt one or more duplicate seals for use outside Bermuda.

 

83.                                  Manner in which seal is to be affixed

 

The seal of the Company shall not be affixed to any instrument except attested by the signature of a Director and the Secretary or any two Directors, or some other person appointed by the Board for the purpose, provided that any Director, or Officer, may affix the seal of the Company attested by such Director or Officer’s signature only to any authenticated copies of these Bye-laws, the incorporating documents of the Company, the minutes of any meetings or any other documents required to be authenticated by such Director or Officer.

 

27



 

WINDING-UP

 

84.                                  Winding-up/distribution by liquidator

 

If the Company shall be wound up the liquidator may, with the sanction of a resolution of the Members, divide amongst the Members in specie or in kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose, set such value as he or she deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator shall think fit, but so that no Member shall be compelled to accept any shares or other securities or assets whereon there is any liability.

 

ALTERATION OF BYE-LAWS

 

85.                                  Alteration of Bye-laws

 

No Bye-law shall be rescinded, altered or amended and no new Bye-law shall be made until the same has been approved by a resolution of the Board and by a resolution of the Members.

 

*****

 

***

 

*

 

28


 

SCHEDULE - FORM A  (Bye-law 48)

 

 

PROXY

 

I

of

the holder of                                         share in the above-named Company hereby appoint                                         or failing him/her                                                      or failing him/her                                                                  as my proxy to vote on my behalf at the General Meeting of the Company to be held on the        day of               , 19    , and at any adjournment thereof.

 

Dated this                     day of                           , 19    

 

*GIVEN under the seal of the company

 

 

 

 

 

*Signed by the above-named

 

 

 

 

 

 

 

 

 

 

 

Witness

 

 


*Delete as applicable.

 

29



 

SCHEDULE — FORM B (Bye-law 57)

 

NOTICE OF LIABILITY TO FORFEITURE FOR NON PAYMENT OF CALL

 

You have failed to pay the call of [amount of call] made on the         day of          , 19     last, in respect of the [number] share(s) [numbers in figures] standing in your name in the Register of Members of the Company, on the        day of          , 19     last, the day appointed for payment of such call. You are hereby notified that unless you pay such call together with interest thereon at the rate of                per annum computed from the said          day of        , 19     last, on or before the       day of           , 19     next at the place of business of the said Company the share(s) will be liable to be forfeited.

 

Dated this            day of                   , 19    

 

[Signature of Secretary]

By order of the Board

 

30



 

SCHEDULE — FORM C (Bye-law 61)

 

TRANSFER OF A SHARE OR SHARES

 

FOR VALUE RECEIVED                                                                                                                      [amount]                                                                                                                                                              [transferor] hereby sell assign and transfer unto                                                                                              [transferee] of                                                                                                                                                                [address]                                                                                                                                               [number of shares] of shares of                                                                                                                              [name of Company]

 

Dated

 

 

 

 

 

 

 

 

 

(Transferor)

 

 

In the presence of:

 

 

 

 

 

(Witness)

 

 

 

 

(Transferee)

 

 

In the presence of:

 

 

 

 

 

(Witness)

 

 

31



 

SCHEDULE — FORM D (Bye-law 65)

 

TRANSFER BY A PERSON BECOMING ENTITLED ON DEATH/BANKRUPTCY OF A MEMBER

 

I/We having become entitled in consequence of the [death/bankruptcy] of [name of the deceased Member] to [number] share(s) numbered [number in figures] standing in the register of members of [Company] in the name of the said [name of deceased Member] instead of being registered myself/ourselves elect to have [name of transferee] (the “Transferee”) registered as a transferee of such share(s) and I/we do hereby accordingly transfer the said share(s) to the Transferee to hold the same unto the Transferee his or her executors administrators and assigns subject to the conditions on which the same were held at the time of the execution thereof; and the Transferee does hereby agree to take the said share(s) subject to the same conditions.

 

WITNESS our hands this              day of          , 19    

 

Signed by the above-named

)

[person or persons entitled]

)

in the presence of:

)

 

 

Signed by the above-named

)

[transferee]

)

in the presence of:

)

 

32




Exhibit 3.3

 

ARTICLES OF INCORPORATION

 

KINROSS BRASIL MINERACAO S/A

 

CNPJ 20.346.524/0001-46

 

NIRE 3130000448-1

 

CHAPTER I – DENOMINATION, PURPOSE, HEAD OFFICE AND TERM

 

Article 1 – KINROSS BRASIL MINERACAO S/A , abbreviated to KINROSS BRASIL or KINROSS, is a private capital business corporation governed by these Articles of Association and by the applicable legal provisions.

 

Article 2 – The purpose of the Company is to:

 

a)                                    carry out the exploitation of mineral deposits through research, exploration, extraction, processing, industrialization, transportation, shipping and trade of mineral commodities;

 

b)                                    produce, process, transport, industrialize and sell any and all sources and forms of energy, and may also act in the production, generation, transmission, distribution and marketing of its products, derivatives and sub-products;

 

c)                                     promote and perform, observing the legal formalities, any and all directly and indirectly related or necessary activities to achieve its purpose, including importation or exportation of any goods or products; and performing of any other activities that may be considered secondary or related to its purpose;

 

d)                                    provide consultancy services, within its area of operation, to companies in Brazil and abroad;

 



 

e)                                     constitute or participate in, directly or indirectly, under any form, other companies, consortia or entities, as a majority or minority, the corporate objectives of which are related or accessory to its corporate purpose.

 

Article 3 – The Company has its head office and jurisdiction at Rodovia BR 040, km 36.5, Paracatu, Minas Gerais, CEP 38600-000, and may, at the discretion of the Board of Directors, open or close, anywhere in the national territory, or abroad, branches, subsidiaries, agencies, offices, warehouses, or any other type of establishment in the Country or abroad.

 

Article 4 – The term of the company is undetermined.

 

CHAPTER II – CAPITAL STOCK AND SHARES

 

Article 5 – The capital stock is R$1,585,598,603.47 (one billion, five hundred and eighty-five million, five hundred and ninety-eight thousand, six hundred and three Reais and forty-seven cents), represented by a total of 373,491 (three hundred and seventy-three thousand, four hundred and ninety-one) common shares, without par value, and 117,950 (one hundred and seventeen thousand, nine hundred and fifty) preferred shares, without par value.

 

Paragraph One – The shares shall be indivisible to the Company, which will not recognize fractions.

 

Paragraph Two – Each preferred share will have priority to receive a fixed dividend, non-cumulative, equivalent to the following equation:  In the calendar year of 2010 :  1  (inflation target of the calendar year of 2006 set by the National Monetary Council (CNM) + the risk premium, published by the National Monetary Council, for the year mentioned, which incorporates an international real interest rate and a Brazil risk component in the medium and

 

2



 

long term) x (existing shareholder’s equity on December 31 st , 2005 and registered according to Brazilian accounting principles), less the following components:  (i) Asset revaluation reserve; and (ii) Goodwill reserve on the issue of debentures; multiplied by the percentage corresponding to the equity interest of the preferred shares in the total capital of the Company.  The payment shall be limited to the greater of the following values:  (a) 50% of the sum of the retained earnings registered on December 31 st , 2005, recorded according to Brazilian accounting principles; or (b) 50% of taxable income registered on December 31 st , 2006, assessed according to Brazilian accounting principles, without participation in the remaining profits; 2 – (inflation target of the calendar year of 2007 set by the National Monetary Council (CNM) + the risk premium, published by the National Monetary Council, for the year mentioned, which incorporates an international real interest rate and a Brazil risk component in the medium and long term) x (existing shareholder’s equity on December 31 st , 2006 registered according to Brazilian accounting principles less the value calculated according to item 1) above), and less the following components:  (i) Asset revaluation reserve; and (ii) Goodwill reserve on the issue of debentures; multiplied by the percentage corresponding to the equity interest of the preferred shares in the total capital of the company.  The payment will be limited to the greater of the following values:  (a) 50% of the sum of the retained earnings registered on December 31 st , 2006, recorded according to Brazilian accounting principles and less the value calculated according to item 1) above; or (b) 50% of taxable income registered on December  31 st , 2007, assessed according to Brazilian accounting principles, without participation in the remaining profits; 3 – (inflation target of the calendar year of 2008, set by the National Monetary Council (CNM) + the risk premium, published by the National Monetary Council, for the year mentioned, which incorporates an international real interest rate and a Brazil risk component in the medium and

 

3



 

long term) x (existing shareholder’s equity on December 31 st , 2007 registered according to Brazilian accounting principles less the values calculated according to items 1) and 2) above), and less the following components:  (i) Asset revaluation reserve; and (ii) Goodwill reserve on the issue of debentures; multiplied by the percentage corresponding to the equity interest of the preferred shares in the total capital of the company.  The payment will be limited to the greater of the following values:  (a) 50% of the sum of the retained earnings registered on December 31 st , 2007, recorded according to Brazilian accounting principles and less the values calculated according to items 1) and 2) above; or (b) 50% of taxable income registered on December 31 st , 2008, assessed according to Brazilian accounting principles, considering adjustments introduced by Law 11,638/07, without participation in the remaining profits; 4 (inflation target of the period from January to November of 2010, set by the National Monetary Council (CNM) + the risk premium, published by the National Monetary Council, for the mentioned period, which incorporates an international real interest rate and a Brazil risk component in the medium and long term) x (existing shareholder’s equity on December 31 st , 2009, registered according to Brazilian accounting principles, considering adjustments introduced by Law 11,638/07, less the values calculated according to items 1), 2) and 3) above), and less the following components:  ( i) Asset revaluation reserve; (ii) Goodwill reserve on the issue of debentures; and (iii) Effects of Law 11,638/07 in relation to existing shareholder’s equity on December 31 st , 2009, multiplied by the percentage corresponding to the equity interest of the preferred shares in the total capital of the company.  The payment will be limited to the greater of the following values:  (a) 50% of the sum of the retained earnings registered on December 31 st , 2009, recorded according to Brazilian accounting principles, considering adjustments introduced by Law 11,638/07 and less the values calculated according to items 1), 2) and 3) above; or (b) 50% of taxable income registered on

 

4



 

November 30th, 2009, registered according to Brazilian accounting principles, considering adjustments introduced by Law 11,638/07, without participation in the remaining profits.  As from the calendar year of 2011, inclusive :  [((the inflation target of the current year, set by the National Monetary Council (CMN) + the risk premium, published by the National Monetary Council, which incorporates an international real interest rate and a Brazil risk component in the medium and long term) x (net worth according to Brazilian accounting principles, adjusted by the following components:  (i) effects of Law 11,638/07 (ii) re-assessment reserve (iii) goodwill reserve on the issue of debentures, at the beginning of each current year) multiplied by the percentage corresponding to the equity interest of the preferred shares in the total capital of the company), the payment being limited to the greater of the following values:  (a) 50% of the sum of the retained earnings and reserve of profits, calculated according to Brazilian accounting principles, taking into consideration the effects of the impacts brought by Law 11,638/07, at the beginning of each current year; or (b) 50% of the annual income, of the base-period itself, calculated according to Brazilian accounting principles and adjusted by Law 11,638/07) per fiscal year, without participation in the remaining profits.  For the purposes of the provision in Paragraph 1 of Article 111 of the Business Corporations Law, it is established that the preferred shares without voting rights will acquire such rights if the Company fails to pay the fixed dividend due for 3 (three) consecutive fiscal years, starting from the year 2010, in which case they will retain the right to vote until the payment of such fixed dividend.  The preferred shares may be redeemed at any time, by decision of the company confirmed by it in a notification delivered to the holders of the preferred shares with at least 2 (two) business days advance notice from the expected date for the payment of the redemption value, which should itemize:  (i) the date on which the payment of the redemption value will be made, which cannot exceed 2

 

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(two) business days counting from the delivery date of the notification by the Company, (ii) the redemption value for each redeemable share (“Redemption Price”), which should be equivalent to R$10,000.00 (ten thousand Reais) per preferred share plus the dividends declared and not paid in relation to the shares less the values of reduction of capital related to such shares; (iii) the number of preferred shares to be redeemed, subject to the provision in paragraph 4 of Article 44 of the Business Corporations Law, when such is the case; and (iv) the places of payment of the value due to the holders of the redeemed preferred shares.  The preferred shares shall have priority in the reimbursement of capital, without bonus, in case of dissolution of the company, in the value corresponding to the Redemption Price of the preferred shares issued at the time of the dissolution.

 

Paragraph Three The preferred shares may be converted into common shares by decision of the preferred shareholders, through prior notification, in writing, to the Company with at least 2 (two) business days advance notice.  The number of common shares to be issued on the date of the conversion should be equal to the Redemption Price of the preferred shares to be assessed on the same date as the conversion, and this price should be assessed by the Company, in good faith, on the date of the conversion.

 

Article 6 Each registered common share is granted one vote in the decisions of the General Meetings.  The preferred shares shall not enjoy a voting right and shall receive priority in the repayment of their capital value, without bonus, in case of dissolution of the Company.

 

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CHAPTER III – GENERAL MEETING

 

Article 7 Annually, within the 4   months subsequent to the end of each fiscal year, a General Shareholder’s Meeting shall be held for the purposes prescribed in law.  The General Meeting shall be held, on special occasions, whenever the corporate interests require it.

 

Paragraph One Not including the legal exceptions, the presidency of the works of the General Meeting shall belong to the majority shareholder, which shall choose the secretary of the works.

 

Paragraph Two The decisions of the General Meeting shall be taken by absolute majority of votes of those present.

 

CHAPTER IV – ADMINISTRATION

 

Article 8 The Administration of the company will be exercised by the Executive Board.

 

Article 9 The Executive Board shall be composed of from 2 (two) to 9 (nine) Officers elected by the General Shareholder’s Meeting, one being a Vice-President, who will be designated as Vice-President - Brazil, one Vice-President and General Manager of Paracatu and the others, Executive Officers.

 

Paragraph One The majority shareholder shall submit to the General Meeting the names of the candidates to the Executive Board with outstanding knowledge and expertise related to their area of work, also being able to propose their removal at any time.

 

Paragraph Two The Executive Officers shall have individual duties defined by the General Meeting that elects them.

 

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Article 10 – The term of office of the Administrators will be 3 (three) years, re-election being permitted.  The term of management shall be extended until the investiture of the respective successors.

 

Sole Paragraph – The General Meeting will set the individual amount of the remuneration of the administrators.

 

Article 11 - The Administrators will exercise their offices on a full-time basis and with exclusive dedication to the service of the company, and concurrent and unpaid positions of administration in integral subsidiary, held and affiliate companies shall be permitted.

 

Sole Paragraph The Administrators shall be responsible for their respective duties even though away from the headquarters while travelling in the exercise of their duties.

 

Article 12 The Executive Board shall normally meet, at least once (1 time) a month and, on special occasions, whenever summoned by the Vice-President Brazil, through advance notification of at least 2 (two) days, which, however, will be dispensed with when all the Officers are present.  Except for a provision to the contrary in these Articles of Incorporation, the decisions of the Executive Board shall be adopted by the vote of the majority of its members, the Vice-President Brazil holding the casting vote, in case of tied decisions.

 

Paragraph One – The Vice-President Brazil should summon as special meeting of the Executive Board at the behest of at least 3 (three) members of the Executive Board.

 

Paragraph Two – The meetings of the Executive Board shall only be installed with the presence of the majority of its members, always with the presence of the Vice-President Brazil.

 

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Article 13 The Executive Board shall be responsible for:

 

a)                                    fulfilling and having fulfilled the general business guidelines of the Company established by the Shareholders;

 

b)                                    elaborating and submitting to the Shareholders the strategic and business directives of the Company, based on the Company’s strategic and business plans, proposing updates and revisions, and carrying out the approved strategic and business plan;

 

c)                                     planning and conducting the operations of the company according to the approved strategic and business plan, reporting to the Shareholders the operational, economic and financial performance of the Company;

 

d)                                    elaborating, in each fiscal year, the Annual Management Report and the Financial Statements which shall be submitted to the Shareholders, in compliance with the applicable legislation;

 

e)                                     elaborating and proposing to the Shareholders the annual and pluriannual budgets of the company, which should reflect the approved strategic and business plan, and execute the approved budgets;

 

f)                                      approving the voting declarations in the General Meetings of affiliate and held companies, and the voting proposals should observe the provision in these Articles of Incorporation and the approved strategic and business plan.

 

Article 14 – Within the limits of their respective duties and subject to the provision in law and in these Articles of Incorporation, the Officers shall be responsible for the acts necessary to the

 

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normal running of the company, being up to them to carry out and have carried out the decisions of the General Meeting and of the Executive Board.

 

Article 15 – The representation of the corporation, actively and passively, in or out of court, including the signing of documents implying liability for it, including private agreements, should always be performed by 2 (two) Officers jointly, or by 1 (one) attorney-in-fact together with 1 (one) Officer, or by 2 (two) attorneys-in-fact, subject to the provision in this article.

 

Paragraph One – The approval of contracts, loans, funding and other legal business to be made by the Company, which, individually present values equal to or greater than R$2,000,000.00 (two million Reais) and less than R$5,000,000.00 (five million Reais) should be performed by 2 (two) Officers, the delegation of these powers to attorneys appointed in the form of these Articles of Incorporation being permitted.

 

Paragraph Two The practice of the acts listed below should be performed by 2 (two) Officers, one of them necessarily being the Vice-President Brazil, the delegation of these powers to attorneys in the form of these Articles of Incorporation being permitted, as stated in the initial paragraph of this article:

 

a)                                      approval of contracts, loans, funding and other legal business to be made by the Company which, individually present values equal to or greater than R$5,000,000.00 (five million Reais);

 

b)                                      approval of alienation or constitution of lien of the permanent assets of the company of any value; and

 

c)                                       giving of guarantees to third parties, of any values.

 

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Paragraph Three – The filing of lawsuits and administrative procedures, as well as the making of judicial and extrajudicial agreements of any value, should be performed by 2 (two) Officers, one of them, necessarily being the Vice-President Brazil or the Chief Legal Officer, if there is such a specific designation.

 

Paragraph Four – The granting of powers of attorney should be performed by the Vice-President Brazil, jointly with one Officer with the exception of representing the Company in court, actively and passively, for which only one signature, that of the Vice-President Brazil or the Chief Legal Officer, if there is such a specific designation will be required.

 

Paragraph Five – Except if destined for legal purposes, the powers of attorney granted by the Company shall have a specific term, of not greater than 1 (one) year.

 

CHAPTER V – AUDIT COMMITTEE

 

Article 16 – The Audit Committee, with the functions and powers prescribed in law, if it should come to be established, will be composed by 3 (three) effective members and 3 (three) substitute members, shareholders or otherwise, elected by the General Meeting which determines its operation and which should fix the remuneration of the respective members.

 

CHAPTER VI – LIABILITY OF THE ADMINISTRATORS

 

Article 17 – The Officers are responsible before the Company and third parties for the acts that they practice in the exercise of their duties, under the terms of the Law and of these Articles of Incorporation.

 

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Article 18 The Company shall assure to the members of the Board of Directors and of the Audit Committee defense in judicial and administrative procedures, actively and passively, during or after the respective terms of office, which may be as a result of acts or facts related to the normal exercise of their respective functions, and provided that such acts or facts are not in disagreement with the legal or statutory provisions.

 

Paragraph One The guarantee prescribed in the initial paragraph of this article extends to the employees that legally act by delegation of the Officers of the Company.

 

Paragraph Two The Company may contract civil liability insurance for the coverage of legal expenses, lawyer’s fees and indemnities resulting from the judicial and administrative procedures referred to in the initial paragraph of this article, through the approval of the Vice-President Brazil, or the Chief Legal Officer, if there is such a specific designation.

 

CHAPTER VII FISCAL YEAR AND FINANCIAL STATEMENTS

 

Article 19 The fiscal year shall coincide with the civil year, terminating, therefore, on December 31 st , each year.

 

Article 20 At the end of each fiscal year, the Financial Statements prescribed in law and the proposal for the destination of the net profit to be presented to the General Meeting by the Board of Directors shall be prepared.

 

Article 21 From the net profit of the fiscal year, adjusted according to art. 202 of Law no. 6,404/1976, 25% (twenty-five percent) shall be distributed to the shareholders, as a minimum obligatory dividend, the balance having the destination determined for it by the General Meeting.

 

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Article 22 The Company may further, by decision of the Board of Directors, determine the preparation of balance sheets at less than the annual period and declare dividends on account of profits earned, assessed in these statements, as well as declaring them for the retained earnings or reserve of profits accounts existing in the last annual or intermediate balance.

 

Sole Paragraph The Company may, through decision of the Board of Directors, opt for the distribution of interest over its own capital.  The value of the interest, paid or credited, by way of interest over its own capital, under the term of the legal provisions, may be imputed to the dividends owed to the shareholders, including and principally to the fixed dividends of the preferred shares.

 

Article 23 The dividends not claimed within the time limit of 3 (three) years shall be prescribed in favor of the company.

 

CHAPTER VIII LIQUIDATION

 

Article 24 The Company will go into liquidation in the cases prescribed in law, or at the decision of the General Meeting, and shall be extinguished at the termination of the liquidation.

 

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Exhibit 3.4

 

ARTICLES OF INCORPORATION

 

OF

 

KINROSS GOLD U.S.A., INC

 

WE, THE UNDERSIGNED, have voluntarily associated ourselves together for the purpose of forming a corporation under the laws of the State of Nevada relating to private corporations, and to that end do hereby adopt articles of incorporation as follows:

 

ARTICLE I — NAME

 

The name of this corporation is KINROSS GOLD U.S.A., INC

 

ARTICLE II — DURATION

 

This corporation shall have perpetual existence.

 

ARTICLE III — LOCATION

 

The address of the corporation’s principal office is Suite 1400 First National Bank Building, One East First Street, in the City of Reno, County of Washoe, State of Nevada.  The initial agent for service of process at that address is NATCO.

 

ARTICLE IV — POWERS

 

The corporation shall have unlimited power to engage in and exercise all the powers now or hereafter conferred by the laws of the State of Nevada upon corporations organized pursuant to the laws under which the corporation is organized and any and all acts amendatory thereof and supplemental thereto and to do any lawful act concerning any or all lawful business for which corporations may be organized under the laws of the State of Nevada, including, but not limited to, entering into any lawful arrangement for sharing profits, union of interests, reciprocal association or cooperative association with any corporation, association, partnership, individual or other legal entity for the carrying on of any business and to enter into any general or limited partnership for the carrying on of any business.

 

ARTICLE V — PURPOSES

 

The purposes for which this corporation is organized are to engage in any activity or business not in conflict with the laws of the State of Nevada or the United States of America or any state thereof and without limiting the generality of the foregoing, specifically:

 

A.                                    To engage in all phases of the purchase, exchange, lease, development or management of real property interests including, but not limited to, oil, gas and mineral interests, and to carry on the business of mining, milling, concentrating, converting, smelting, treating, refining, preparing for market, manufacturing, buying, selling, exchanging, and otherwise producing and dealing in and all ore or gas an all other mineral interests of any kind and in the products

 



 

and by-products of every kind and description produced therefrom; to purchase, lease, option, locate, or otherwise acquire, own, exchange, sell, or otherwise dispose of, pledge, mortgage, deed in trust, hypothecate, and deal in mines, mining claims, mineral lands, coal lands, oil lands,                                gas lands, timber lands, water and water rights, and other property, both real and personal; and to carry on as principals, agents, commission merchants, any business relating to any of the foregoing.

 

B.                                      To conduct and carry on its business or a branch thereof in any state or territory of the United States or in any foreign country in conformity with the laws of such state, territory, or foreign country and to have and maintain in any state, territory, or foreign country a business office, plant, store or other facility.

 

C.                                      To engage generally in any business related or unrelated to those described in paragraphs “A” and “B” of this Article in which it is lawful for a corporation to engage; and to have and exercise all rights and power from time to time granted to a corporation by law.

 

ARTICLE VI — CAPITAL STOCK

 

A.                                    Authorized Capital Stock :  The Corporation has the authority to issue a total of 75,000 shares of Common Stock divided into three classes, and 666,666 shares of Preferred Stock, all as described below.

 

B.                                      Common Stock .  The 75,000 shares of Common Stock shall be divided into three classes, Common Stock, Class A Common Stock and Class B Common Stock.

 

1.                                        Common Stock .  25,000 shares of the Common Stock shall be designated as “Common Stock”, shall have a par value of $1.00 per share, and is currently the only class of Common Stock issued and outstanding.  Each issued and outstanding share of Common Stock shall have one (1) vote per share in all matters to come before the stockholders.

 

2.                                        Class A. Common Stock .  25,000 shares of Common Stock shall be designated as “Class A Common Stock”, shall have a par value of $0.02 per share and each issued and outstanding share of Class A Common Stock shall have two (2) votes per share on all matters to come before the stockholders.

 

3.                                        Class B Common Stock .  25,000 shares of Common Stock shall be designated as “Class B Common Stock”, shall have a par value of $0.04 per share and each issued and outstanding share of Class B Common Stock shall have five (5) votes per share on all matters to come before the stockholders.

 

C.                                      Preferred Stock .  Each share of Preferred Stock shall have a par value of $0.01 per share and shall not have any vote on any matter.

 

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ARTICLE VII — SHAREHOLDER RIGHTS

 

The authorized and treasury stock of this Corporation may be issued and sold from time to time, upon such terms and conditions and for such consideration as the Board of Directors shall determine, provided that the consideration so fixed is not less than PAR VALUE.  Shareholders shall not have pre-emptive rights to acquire unissued shares of the stock of this Corporation.  There shall be no cumulative voting.

 

ARTICLE VIII — ASSESSMENT OF STOCK

 

The capital stock of the Corporation, after the amount of the subscription price or PAR VALUE has been paid in, shall not be subject to pay debts of the Corporation, and no paid up stock and no stock issued as fully paid up shall ever be assessable or assessed.

 

ARTICLE IX — BY-LAWS

 

The initial By-Laws of the corporation shall be adopted by its Board of Directors.  The power to alter, amend, or repeal the By-Laws, or to adopt new By-Laws, shall be vested in the Board of Directors, except as otherwise may be specifically provided in the By-Laws.

 

ARTICLE X — STOCKHOLDERS’ MEETINGS

 

Meetings of stockholders shall be held at such place within or without the State of Nevada as may be provided by the By-Laws of the corporation.  Special meetings of the stockholders may be called by the President or any other executive officer of the corporation, the Board of Directors, or any member thereof, or by the record holder or holders of at least ten per cent (10%) of all shares entitled to vote at the meeting.  Any action otherwise required to be taken at a meeting of the stockholders, except election of directors, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by stockholders having at least a majority of the voting power.

 

ARTICLE XI — CONTRACTS OF CORPORATION

 

No contract or other transaction between the corporation and any other corporation, whether or not a majority of the shares of the capital stock of such other corporation is owned by this corporation, and no act of this corporation shall in any way be affected or invalidated by the fact that any of the directors of this corporation are pecuniarily or otherwise interested in, or are directors or officer of such other corporation.  Any director may be a member, may be a party to, or may be pecuniarily or otherwise interested in any contract or transaction of the corporation; provided, however, that the fact that he or such firm is so interested shall be disclosed or shall have been known to the Board of Directors of this corporation , or a majority thereof; and any director of this corporation who is also a director or officer of such other corporation, or who is so interested, may be counted in determining the existence of a quorum at any meeting of the Board of Directors of this corporation that shall authorize such contract or transaction, and may vote thereat to authorize such contract or transaction, with like force and effect as if he were not such director or officer of such other corporation or not so interested.

 

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ARTICLE XII — DIRECTORS

 

The affairs of the corporation shall be governed by a Board of Directors of not less than three persons.  Names and addresses of members of the first Board of Directors are:

 

Arthur H. Ditto
853 Lakeview Drive
Stansbury Park, Utah  84075

 

John Donald Kerr
1741 Coleman Street
North Vancouver, British Columbia  V7K V1T

 

David Bruce Rovig
365 31
st  Street West
Billings, Montana  59102

 

ARTICLE XIII — INCORPORATORS

 

The name and address of each incorporator of the corporation is as follows:

 

Arthur H. Ditto
853 Lakeview Drive
Stansbury Park, Utah  84075

 

John Donald Kerr
1741 Coleman Street
North Vancouver, British Columbia  V7K V1T

 

David Bruce Rovig
365 31
st  Street West
Billings, Montana  59102

 

ARTICLE XIV

 

The rights, privileges, restrictions and conditions attaching to the preferred shares are as follows:

 

A.                                    Voting :  Subject to the provisions of paragraphs 4 and 5 hereof, the holders of the preferred shares shall not, as such, be entitled to receive notice of or to attend any meeting of the stockholders of the Corporation or to vote at any such meeting.

 

B.                                      Dividends :  The holders of the preferred shares shall, in preference and priority to any payment of dividends on the common stock, be entitled to a fixed non-cumulative dividend at the rate of 6% of the issues price per preferred share, payable in full on July 30, 1994. If the preferred shares are exchanged for common stock of Kinross Gold Corporation on or prior to July 30, 1994, then no dividend is payable. The holders

 

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of the preferred shares shall not be entitled to any dividends other than as provided for in this section.

 

C.                                      Ranking Over Other Capital Stock :  The preferred shares shall be entitled to preference over the common stock of the Corporation and any other Capital Stock of the Corporation ranking junior to the said preferred shares with respect to payment of dividends and distribution of assets in the event of liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary.

 

D.                                     Amendments of Articles to Vary Rights :  The foregoing provisions, the provisions of this paragraph and the provisions of paragraph 5 hereof may be repealed, altered, modified or amended by certificate of amendment but only with the approval of       the holders of the preferred shares given as hereinafter specified.

 

E.                                       Approval :  The approval of the holders of the preferred shares as to any and all matters referred to herein may be given by special resolution sanctioned at a meeting of holders of preferred shares duly called and held upon at least fourteen (14) days’ notice at which the holders of at least a majority of the outstanding preferred shares are present or represented by proxy and carried by the affirmative votes of the holders of not less than two-thirds of the preferred shares represented and voted at such meeting cast on a poll. On every poll taken at every such meeting every holder of preferred shares shall be entitled to one (1) vote in respect of each preferred share held.

 

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IN WITNESS WHEREOF the undersigned incorporators have hereunto fixed their signatures at Salt Lake City, Utah this 19 th  day of December, 2011.

 

 

/s/ Arthur H. Ditto

 

Arthur H. Ditto

 

 

 

 

 

/s/ John Donald Kerr

 

John Donald Kerr

 

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Exhibit 3.5

 

AMENDED AND RESTATED

 

BYLAWS

 

OF

 

KINROSS GOLD U.S.A., INC.

 

ARTICLE I

 

Offices

 

Section 1.                                             Business Offices . The principal office of the corporation shall be designated from time to time by the corporation and may be within or outside of Nevada. The corporation may have such other offices, either within or outside Nevada, as the board of directors may designate or as the business of the corporation may require from time to time.

 

Section 2.                                             Registered Office . The registered office shall be in Reno, Nevada or such other location as may be determined by the board of directors.

 

ARTICLE II

 

Shareholders

 

Section 1.                                             Annual Meetings . An annual meeting of the shareholders shall be held on the first Monday in the month of May in each year, or on such other date as may be determined by the board of directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated in these bylaws for any annual meeting of the shareholders, or at any adjournment of such meeting, the board of directors shall cause the election to be held at a meeting of the shareholders as soon after such annual meeting (as the same may be adjourned) as is convenient. Failure to hold an annual meeting as required by these bylaws shall not invalidate any action taken by the board of directors or officers of the corporation.

 

Section 2.                                             Special Meetings . Special meetings of the shareholders for any purpose or purposes, unless otherwise prescribed by statute, may be called by the president and shall be called by the president or the secretary at the request of shareholders owning at least 10% of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice.

 

Section 3.                                             Place of Meetings . Each meeting of the shareholders shall be held at such place, either within or outside Nevada, as may be designated in the notice of meeting. If

 



 

no place is designated in any such notice, the relevant meeting shall be held at the registered office of the corporation in Nevada.

 

Section 4.                                             Notice of Meetings . Notices of meetings of shareholders shall be in writing and signed by the president, a vice-president, the secretary, or an assistant secretary, or by such other natural person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when and the place where it is to be held. A copy of such notice shall be delivered personally, by electronic transmission as permitted by statute, or shall be mailed, postage prepaid, to each shareholder of record entitled to vote at such meeting not less than ten nor more than sixty days before such meeting. If mailed, it shall be directed to a shareholder at such shareholder’s address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission to such shareholder. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee.

 

Section 5.                                             Fixing of Record Date . The board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days, and in case of a meeting of the shareholders, not less than ten days, prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is fixed by the board of directors, the record date shall be fixed as provided by statute. When a determination of shareholders entitled to vote at any meeting of the shareholders has been made as provided in this Section, such determination shall apply to any adjournment of such meeting, unless such adjournment lasts for more than 60 days from the date of the original meeting, in which event a new record date must be established.

 

Section 6.                                             Voting List . The officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete list of the shareholders who are entitled to be given notice of a meeting of the shareholders, arranged in alphabetical order, with the address of and the number of shares held by each. The shareholder list must be available for inspection by any shareholder, beginning on the earlier of ten days before the meeting for which the list was prepared or two business days after notice of the meeting is given and continuing throughout the meeting and any meeting adjournments. The original stock transfer books shall be prima facie evidence as to the shareholders who are entitled to examine such list or transfer books or to vote at any meeting of the shareholders. Failure to comply with the requirements of this Section shall not affect the validity of any action taken at such meeting.

 

Section 7.                                             Proxies . At each meeting of the shareholders, a shareholder may vote in person or by proxy executed in writing by the shareholder or by such shareholder’s duly authorized attorney-in-fact, or by a written statement of the appointment transmitted by telegram, teletype or other electronic transmission along with written evidence from which it can be determined that the shareholder transmitted or authorized the transmission of the appointment. Such proxy shall be filed with the secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after six months from the date of such proxy’s execution, unless otherwise provided in the proxy, which in no case shall exceed seven years from the date of its execution.

 

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Section 8.                                             Quorum . Except as otherwise required by statute, a majority of the outstanding shares of the corporation entitled to vote on a matter, represented in person or by proxy, shall constitute a quorum for action on such matter at each meeting of the shareholders. If a quorum exists, a matter will be approved if the number of votes cast in favor of such matter exceeds the number of votes cast against such matter except in the case of the election of directors. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting without further notice other than an announcement at the meeting of the new date, time and place; provided, however, that if the adjournment is for more than thirty days, or if after the adjournment a new record date for the adjourned meeting is or must be fixed by statute or under these bylaws, notice of the adjourned meeting must be given to shareholders of record who are entitled to vote at the meeting. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

 

Section 9.                                             Voting of Shares . Except as otherwise provided by law, the articles of incorporation or these bylaws, each outstanding share of record is entitled to one vote on each matter submitted to a vote of the shareholders either at a meeting of the shareholders or pursuant to Section 11 of this Article II.

 

Section 10.                                       Voting of Shares by Certain Holders . Shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation is held by the corporation, may not be voted at any meeting or counted in determining the total number of outstanding shares at any given time. Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine. Shares held by an administrator, executor, guardian or conservator may be voted by such person, either in person or by proxy, without a transfer of such shares into such person’s name. Shares standing in the name of a trustee may be voted by such trustee, either in person or by proxy, but no trustee shall be entitled to vote shares held by such trustee without a transfer of such shares into such trustee’s name. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer of such shares into such receiver’s name if authority to do so is contained in an appropriate order of the court by which such receiver was appointed.

 

Section 11.                                       Action Without a Meeting . Whenever the vote of shareholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, the meeting and vote of shareholders may be dispensed with if one or more consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and delivered to the corporation by delivery to its registered office in Nevada, its principal place of business or an officer or agent of the corporation having custody of the book in which the proceedings of minutes of meetings of shareholders are recorded.

 

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ARTICLE III

 

Board of Directors

 

Section 1.                                             General Powers . The business and affairs of the corporation shall be managed under the direction of the corporation’s board of directors, except as otherwise provided in the Nevada Revised Statutes, the articles of incorporation or these bylaws.

 

Section 2.                                             Number, Tenure and Qualifications . The number of directors shall be determined from time to time by a resolution of the board of directors but shall not be fewer than three (3) as provided in the articles of incorporation. Directors shall be elected at each annual meeting of the shareholders by plurality vote. Each director shall hold office until the next annual meeting of the shareholders and thereafter until such director’s successor shall have been elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be residents of Nevada or shareholders of the corporation. The directors may elect from their number a director to serve as chairman of the board of directors, for such term and with such authority as may be granted by the board of directors.

 

Section 3.                                             Vacancies; Removal . Any director may resign at any time by giving written notice through the president or the secretary. A director’s resignation shall take effect on receipt of such notice unless another time is specified in such notice, and unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make such resignation effective. Any vacancy occurring on the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors, or by the shareholders. A director elected to fill a vacancy shall be elected for the unexpired term of such director’s predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall be filled by the affirmative vote of a majority of the directors then in office or by an election at a meeting of the shareholders called for that purpose, and a director so chosen shall hold office for the term specified in Section 2 of this Article III. At a meeting called expressly for that purpose, one or more directors or the entire board of directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors. Any directorship to be filled by reason of the removal of one or more directors by the shareholders or for any other reason may be filled by election by the shareholders at the meeting at which the director or directors are removed.

 

Section 4.                                             Regular Meetings . A regular meeting of the board of directors shall be held immediately after and at the same place as the annual meeting of the shareholders, or as soon as practicable after the annual meeting of the shareholders, at the time and place, either within or outside Nevada, as determined by the board of directors, for the purpose of electing officers and for the transaction of such other business as may come before the meeting. The board of directors may provide by resolution the time and place, either within or outside Nevada, for the holding of additional regular meetings.

 

Section 5.                                             Special Meetings . Special meetings of the board of directors may be called by or at the request of the president or any two directors. The person or persons authorized to call special meetings of the board of directors may fix any place as the place, either

 

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within or outside Nevada, for holding any special meeting of the board of directors called by such person(s).

 

Section 6.                                             Notice . Notice of each meeting of the board of directors stating the place, day and hour of the meeting shall be given to each director at least ten days prior to such meeting by the mailing of written notice, or at least five days prior to such meeting by personal delivery of written notice or by telephonic or facsimile notice, except that in the case of a meeting to be held pursuant to Section 11 of this Article III, telephone notice may be given one day prior to such meeting. (The method of notice need not be the same to each director.) Notice shall be deemed to be given, if mailed, on the earlier of the date it is received or five days after it is deposited in the United States mail, with postage prepaid, addressed to the director at such director’s business or residence address; if personally delivered, when delivered to the director; if delivered via facsimile, upon confirmation of receipt by the receiving facsimile machine; and, if telephoned, when communicated to the director. Any director may waive notice of any meeting. The attendance of a director at a meeting (or participation by a director in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, except where a director objects to the holding of the meeting at the beginning of the meeting or promptly on such director’s arrival. Neither the business to be transacted at, nor the purpose of, any meeting of the board of directors need be specified in the notice or waiver of notice of such meeting unless required by statute.

 

Section 7.                                             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 at the meeting unless the director objects at the beginning of the meeting, or promptly on arrival, to holding the meeting or transacting business at the meeting and does not thereafter vote for or consent to any action taken at the meeting, or the director contemporaneously requests his dissent or abstention as to any specific action to be entered into the minutes of the meeting, or the director causes written notice of a dissent or abstention as to a specific action to be received by the presiding officer of the meeting before adjournment of the meeting or by the corporation promptly after adjournment of the meeting.

 

Section 8.                                             Quorum and Voting . A majority of the number of directors in office immediately before the meeting begins shall constitute a quorum for the transaction of business at any meeting of the board of directors, and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. If less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than an announcement at the meeting until a quorum shall be present.

 

Section 9.                                             Fees and Compensation . Directors may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the board of directors. This section shall not be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee or otherwise and receiving compensation for those services.

 

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Section 10.                                       Executive and Other Committees . By one or more resolutions adopted by the majority of the board of directors, the board of directors may designate from among the members of the board of directors an executive committee and one or more other committees consisting of one or more directors, each of which (to the extent provided in the resolution establishing such committee) shall have and may exercise all of the authority of the board of directors.

 

Section 11.                                       Meetings by Telephone . Members of the board of directors or any committee of the board of directors may participate in a meeting of the board of directors or committee by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Such participation shall constitute presence in person at the meeting.

 

Section 12.                                       Action Without a Meeting . Any action required or permitted to be taken at a meeting of the directors or any committee of the board of directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or committee members entitled to vote with respect to the subject matter concerned.

 

ARTICLE IV

 

Officers

 

Section 1.                                             Number and Qualifications . The officers of the corporation shall be a president, a secretary, and a treasurer. The board of directors may also elect or appoint such other officers, assistant officers and agents, including vice presidents, assistant secretaries, and assistant treasurers, as the board of directors may consider necessary. Any two or more offices may be held by the same person.

 

Section 2.                                             Election and Term of Office . The officers of the corporation shall be appointed by the board of directors annually at the first meeting of the board of directors held after each annual meeting of the shareholders. If the appointment of officers shall not occur at such meeting, such appointment shall be held as soon after such annual meeting as is convenient. Each officer shall hold office until such officer’s successor is duly appointed or until such officer’s earlier death, resignation or removal.

 

Section 3.                                             Compensation . The compensation of the officers shall be determined from time to time by the board of directors, and no officer shall be prevented from receiving any compensation by reason of the fact that such officer is also a director of the corporation.

 

Section 4.                                             Removal . Any officer may be removed by the board of directors or by a committee, if any, if so authorized by the board of directors, at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not in itself create contract rights.

 

Section 5.                                             Vacancies . Any officer may resign at any time, subject to any rights or obligations under any existing contracts between the officer and the corporation, by

 

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giving written notice to the president or to the board of directors. An officer’s resignation shall take effect at the time specified in such resignation, and the acceptance of such resignation shall not be necessary to make such resignation effective. A vacancy in any office, however occurring, may be filled by the board of directors for the unexpired portion of the term.

 

Section 6.                                             Authority and Duties of Officers . The officers of the corporation shall have the authority and shall exercise the powers and perform the duties specified below and as may be additionally specified by the president, the board of directors or these bylaws, except that in any event, each officer shall exercise such powers and perform such duties as may be required by law:

 

(a)                                   President . The president shall be the chief executive officer of the corporation and shall, subject to the direction and supervision of the board of directors: (i) have general and active control of the affairs and business of the corporation and general supervision of its officers, agents and employees; (ii) preside, in the absence of the chairman of the board, at all meetings of the shareholders and the board of directors; (iii) see that all orders and resolutions of the board of directors are carried into effect; and (iv) perform all other duties incident to the office of president and as from time to time may be assigned to the president by the board of directors.

 

(b)                                  Vice Presidents . The vice presidents shall assist the president and shall perform such duties as may be assigned by the president or by the board of directors. Such officers shall, at the request of the president, or in the absence of the president, or the event of the inability or refusal by the president to act, perform the duties of the president and when so acting, shall have all the powers of and be subject to all the restrictions on the president.

 

(c)                                   Secretary . The secretary shall: (i) keep the minutes of the proceedings of the shareholders, the board of directors and any committees of the board of directors; (ii) keep a record of all actions taken by the shareholders, the board of directors and any committees of the board of directors without a meeting; (iii) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (iv) keep a record of all waivers of notices of meetings of the shareholders, the board of directors and any committees of the board of directors; (v) be custodian of the corporate records and of the seal of the corporation; (vi) keep at the corporation’s registered office or principal place of business within or outside Nevada a record containing the names and addresses of all shareholders and the number and class of shares held by each, unless such a record shall be kept at the office of the corporation’s transfer agent or registrar; (vii) have general charge of the stock transfer books of the corporation, unless the corporation has a transfer agent; and (viii) perform all other duties incident to the office of secretary and such other duties as from time to time may be assigned by the board of directors or the president.

 

(d)                                  Treasurer . The treasurer shall: (i) be the principal financial officer of the corporation and have the care and custody of all of the corporation’s funds, securities, evidences of indebtedness and other personal property and deposit the same in accordance with the instructions of the board of directors; (ii) receive and give receipts for monies paid into or on account of the corporation and pay out of the funds on hand all bills, payrolls, and other just debts of the corporation of whatever nature on maturity; (iii) unless there is a controller, be the

 

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principal accounting officer of the corporation and as such prescribe and maintain the methods and systems of accounting to be followed, keep complete books and records of account, prepare and file all local, state and federal tax returns, prescribe and maintain an adequate system of internal audit, and prepare and furnish to the president and the board of directors statements of account showing the financial position of the corporation and the results of the corporation’s operations; (iv) on request of the board of directors, make such reports to the board of directors as may be required at any time; and (v) perform all other duties incident to the office of treasurer and such other duties as from time to time may be assigned by the board of directors or the president. Assistant treasurers, if any, shall have the same powers and duties, subject to supervision by the treasurer.

 

Section 7.                                             Surety Bonds . The board of directors may require any officer of the corporation to execute to the corporation a bond in such sums and with such sureties as shall be satisfactory to the board of directors, conditioned on the faithful performance of such officer’s duties and for the restoration to the corporation of all books, papers, vouchers, money and other property of whatever kind belonging to the corporation in the possession or under the control of such officer.

 

ARTICLE V

 

Shares

 

Section 1.                                             Issuance of Shares . The issuance or sale by the corporation of any shares of the corporation’s authorized capital stock of any class shall be made only on authorization by the board of directors.

 

Section 2.                                             Certificates . The shares of the corporation shall be represented by certificates unless otherwise provided by the board of directors. The certificates shall be in such form consistent with law as shall be prescribed by the board of directors. The certificates representing shares of stock of the corporation shall be consecutively numbered. The certificates shall be signed by two officers as designated by the board of directors, or in the absence of such designation, any two of the following officers: the president, the secretary, or the treasurer.

 

Section 3.                                             Lost Certificates . In case of the alleged loss, destruction or mutilation of a certificate of stock, the board of directors may direct the issuance of a new certificate in lieu of such certificate on such terms and conditions in conformity with law as the board of directors may prescribe. The board of directors may, in the discretion of the board of directors, require a bond in such form and amount and with such surety as the board of directors may determine or such other assurance or security as permitted by applicable law before issuing a new certificate.

 

Section 4.                                             Transfer of Shares . On surrender to the corporation or to a transfer agent of the corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer and otherwise satisfying requirements permitted to be imposed by the corporation under applicable law, it shall be the duty of the corporation to issue a new certificate to the person entitled to such new certificate and to cancel

 

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the old certificate. Every such transfer of stock shall be entered on the stock transfer books of the corporation.

 

Section 5.                                             Holders of Record . The corporation shall be entitled to treat the holder of record of any share as the holder-in-fact of such share and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not the corporation shall have express or other notice of such claim or interest, except as may be required by the laws of Nevada.

 

Section 6.                                             Transfer Agents, Registrars and Paying Agents . The board of directors may, in the discretion of the board of directors, appoint one or more transfer agents or registrars for making payment on any class of stock, bond, debenture or other security of the corporation. Such agents and registrars may be located either within or outside Nevada. They shall have such rights and duties and shall be entitled to such compensation as may be agreed.

 

ARTICLE VI

 

Indemnification

 

Section 1.                                             The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with the action, suit or proceeding if such person (a) is not liable pursuant to statute, or (b) acted in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person is liable pursuant to statute or did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the corporation, or that, with respect to any criminal action or proceeding, such person had reasonable cause to believe that his or her conduct was unlawful.

 

Section 2.                                             The corporation shall indemnify any person who was or is a party or is threatened to be a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by such person in connection with the defense or settlement of the action or suit if such person (a) is not liable pursuant to

 

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statute, or (b) acted in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the corporation.

 

Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.

 

Section 3.                                             To the extent that a director, officer, employee or agent of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 1 and 2 of this article, or in defense of any claim, issue or matter therein, the corporation shall indemnify such person against expenses, including attorneys’ fees, actually and reasonably incurred by such person in connection with the defense.

 

Section 4.                                             Any discretionary indemnification pursuant to statute, unless ordered by a court or advanced pursuant to Section 5 of this article, may be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. The determination must be made (a) by the shareholders, (b) by the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding, (c) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion, or (d) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion.

 

Section 5.                                             The corporation shall pay expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding as such expenses are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that such person is not entitled to be indemnified by the corporation. The provision of this section do not affect any rights to advancement of expenses to which corporate personnel other than directors or officers may be entitled under any contract or otherwise by law.

 

Section 6.                                             The indemnification pursuant to Sections 1, 2, and 3 of this article and advancement of expenses authorized in or ordered by a court pursuant to Section 5 of this article (a) do not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the articles of incorporation or any bylaw, agreement, vote of shareholders or disinterested directors or otherwise, for either an action in such person’s official capacity or an action in another capacity while holding such person’s office, except that indemnification, unless ordered by a court pursuant to Sections 1, 2 or 3 of this article or for the advancement of expenses made pursuant to Section 5 of this article, may not be made to or on behalf of any director or officer if a final adjudication establishes that the acts or omissions of such person involved intentional misconduct, fraud or a knowing violation

 

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of the law and was material to the cause of action, and (b) continues for a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors and administrators of such person.

 

Section 7.                                             The corporation shall purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise for any liability asserted against such person and liability expenses incurred by such person in such person’s capacity as a director, officer, employee or agent, or arising out of such person’s status as such, whether or not the corporation has the authority to indemnify such person against such liability and expenses. No financial arrangement made pursuant to this Section 7 may provide protection for a person adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable for intentional misconduct, fraud or a knowing violation of law, except with respect to the advancement of expenses or indemnification ordered by a court.

 

ARTICLE VII

 

Miscellaneous

 

Section 1.                                             Waivers of Notice . Whenever notice is required by law, the articles of incorporation or these bylaws, a waiver of such notice in writing signed by the director, shareholder, or other person entitled to said notice, whether before or after the time stated in such waiver or, subject to Section 6 of Article III, such person’s appearance at such meeting in person or (in the case of a shareholder’s meeting) by proxy, shall be equivalent to such notice.

 

Section 2.                                             Voting of Securities by the Corporation . Unless otherwise provided by resolution of the board of directors, the president shall, on behalf of the corporation, attend in person or by substitute appointed by the president, or shall execute written instruments appointing a proxy or proxies, all meetings of the shareholders of any other corporation, association or other entity in which the corporation holds any stock or other securities and may execute written waivers of notice with respect to any such meetings. At all such meetings and otherwise, the president, in person or by substitute or proxy as aforesaid, may vote the stock or other securities so held by the corporation and may execute written consents or any other instruments with respect to such stock or securities and may exercise any and all rights and powers incident to the ownership of said stock or securities; subject, however, to the instructions, if any, of the board of directors.

 

Section 3.                                             Books and Records . The corporation shall keep correct and complete books and records of account, shall keep minutes of the proceedings of the meetings of the corporation’s shareholders and board of directors and shall keep all other records required by law. The corporation shall also keep at the corporation’s registered office or principal place of business or at the office of the corporation’s transfer agent or registrar a record of the corporation’s shareholders, giving the name and addresses of all shareholders and the number of shares held by each. Any person who is a shareholder of record, on written demand under oath stating the purpose of such examination, shall have the right to examine and make abstracts

 

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from, in person or by agent or attorney, at any reasonable time and for a purpose reasonably related to such person’s interests as a shareholder, the corporation’s books and records of account, minutes and record of shareholders.

 

Section 4.                                             Instruments . The board of directors may authorize any officer, agent or agents to enter into any contract or execute and deliver any instrument in the name of, and on behalf of, the corporation, and such authority may be general or confined to specific instances.

 

Section 5.                                             Amendments . Subject to repeal or change by action of the shareholders, the power to alter, amend or repeal these bylaws and adopt new bylaws shall be vested in the board of directors.

 

Section 6.                                             Interpretation . These bylaws and each provision of these bylaws are subject to applicable statutory law and to the articles of incorporation.

 

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Exhibit 3.6

 

RESTATED ARTICLES OF INCORPORATION

 

OF

 

CROWN RESOURCES CORPORATION

 

ARTICLE I

Name

 

The name of this corporation is Crown Resources Corporation.

 

ARTICLE II

Purposes

 

The purposes for which this corporation is organized are the following:

 

A.                                    To engage in the acquisition, exploration, development, and extraction of mineral deposits and any related business or activity.

 

B.                                      To transact any or all lawful business for which corporations may be incorporated under the Washington Business Corporation Act.

 

ARTICLE III

Powers

 

The powers of this corporation shall be those powers granted by the Washington Business Corporation Act, as amended, including any additional powers granted by amendments to said Act after the formation of this corporation, including the power, without limitation, to hold federal mineral leases, licenses, and prospecting permits of all kinds.

 

ARTICLE IV

Capital Stock

 

A.                                    The total number of shares, which the corporation is authorized to issue, is One Hundred Forty Million (140,000,000) shares of $.01 par value, consisting of One Hundred Million (100,000,000) shares of Common Stock of $.01 par value and Forty Million (40,000,000) shares of Preferred Stock of $.01 par value.

 

B.                                      The Preferred Stock may be issued from time to time in one or more series in any manner permitted by law and the provisions of the Articles of Incorporation of the corporation, as determined from time to time by the Board of Directors and stated in the resolution or resolutions providing for the issuance thereof, prior to the issuance of any

 



 

shares thereof. The Board of Directors shall have the authority to fix and determine, subject to the provisions hereof, the rights and preferences of the shares of any series so established. Unless otherwise provided in the resolution establishing shares of a series so established or to be established, the Board of Directors may, by resolution, amend the relative rights and preferences of the shares of such series, and after the issue of Directors, the resolution establishing the series may be amended by the Board of Directors to decrease (but not below the number of shares of such series then outstanding) the number of shares of that series.

 

C.                                      This corporation shall not issue non-voting equity securities.

 

ARTICLE V
No Preemptive Rights

 

Except as may otherwise be provided by the Board of Directors, no holder of any shares of this corporation shall have any preemptive right to purchase, subscribe for or otherwise acquire any securities of this corporation of any class or kind now or hereafter authorized.

 

ARTICLE VI

Registered Office and Registered Agent

 

A.                                    The registered agent of this corporation in the State of Washington shall be CT Corporation System.

 

B.                                      The location and post office address of the registered agent and the registered office of this corporation in the State of Washington is 520 Pike Street, Seattle, Washington 98101.

 

ARTICLE VII

Directors

 

A.                                    This corporation shall have at least one (1) director, the actual number to be prescribed in the Bylaws.

 

B.                                      Except as specified in paragraphs C and D of this Article VII, the term of the directors shall be until the next annual meeting of the shareholders of this corporation after their election and until their successors shall have been elected and are qualified, unless removed in accordance with the provisions of paragraph E of this Article VII.

 

C.                                      Upon the first election of Directors by the shareholders of this corporation after an increase in the number of Directors of this corporation to nine or more, the Directors shall be divided into three classes. Each class shall be as nearly equal in number as possible. The term of office of Directors of the first class shall expire at the first annual meeting of shareholders after their election that of the second class shall expire at the second annual meeting after their election, and that of the third class shall expire at the third annual meeting after their election. At each annual meeting after such classification, the number of Directors equal to the number of members of the class whose term expires

 



 

at the time of such meeting shall be elected to hold office until the third succeeding annual meeting.

 

D.                                     Any vacancies in the Board of Directors for any reason, and any newly created Directorships resulting from any increase in the number of Directors, may be filled only by the Board of Directors, acting by vote of a majority of the Directors then in office, although less than a quorum. Any Director so chosen shall hold office for the unexpired term of such Director’s predecessor in office or, if chosen to hold a newly created Directorship, shall hold office until the next succeeding annual election of Directors and until such Director’s successor shall be elected and qualified.

 

E.                                       Any Director or the entire Board of Directors may be removed from office only for cause and only by the affirmative vote of the holders of a majority of the voting power of the outstanding shares of stock entitled to vote thereon. No amendment to this Paragraph E shall be effective to expand the circumstances under which a Director in office at the time such amendment becomes effective may be removed.

 

F.                                       In evaluating an offer by another party to make a tender offer or exchange offer for securities of this corporation, or to effect a merger or consolidation involving this corporation, or to acquire all or substantially all the assets of this corporation, or otherwise to acquire control of this corporation, the Board of Directors, in considering the best interests of this corporation, may consider the extent to which any such offer furthers the purposes of this corporation as stated herein and may consider the social, legal, economic or other effects of any such offer upon employees, customers, suppliers and other constituencies of this corporation, communities in which this corporation is located or operates, and all other relevant factors.

 

G.                                      Advance notice of nominations for the election of Directors, other than nominations by the Board of Directors or a committee thereof, and advance notice of business to be conducted at any annual meeting of shareholders, other than business proposed by the Board of Directors or a committee thereof, shall be given within the time and in the manner provided in the Bylaws.

 

ARTICLE VIII

Special Meeting of Shareholders

 

Special meetings of the shareholders of this corporation may be called only by the Chairman of the Board of Directors, the President, or any two or more Directors of this corporation.

 

ARTICLE IX

Actions Relating to the Bylaws

 

The Bylaws of this corporation may be adopted, altered, amended or repealed or new bylaws enacted only: (i) upon receiving the affirmative vote of a majority of the entire Board of Directors; or (ii) at any annual meeting of the shareholders, if notice thereof is contained in the notice of such meeting (or any special meeting thereof duly called for that purpose), by the affirmative vote of the holders of a majority of the voting

 



 

power of the outstanding shares of stock entitled to vote thereon, in addition to any other vote required for such action by law or the provisions of any other class or series of stock of this corporation.

 

ARTICLE X

Reserved Rights

 

This corporation reserves the right to amend, alter, change, or repeal any provisions contained in its Articles of Incorporation in any manner now or hereafter prescribed or as permitted by statute. All rights of shareholders of this corporation are granted subject to this reservation.

 

ARTICLE XI

No Cumulative Voting

 

There shall be no cumulative voting of the shares in this corporation.

 

ARTICLE XII

Limitation on Director Liability

 

To the fullest extent permitted by Washington law as now or hereafter in effect, a director of this corporation shall not be liable to this corporation or its shareholders for monetary damages for his or her conduct as a director. Any amendment to or repeal of this Article XII shall not adversely affect any right of a director of this corporation hereunder with respect to any acts or omissions of such director occurring prior to such amendment or repeal.

 

ARTICLE XIII

Indemnification of Directors

 

To the fullest extent permitted by Washington law as now or hereafter in effect, this corporation is authorized to indemnify any director of this corporation. The Board of Directors shall be entitled to determine the terms of such indemnification, including advance of expenses, and to give effect thereto through the adoption of Bylaws, approval of agreements, or by any other manner approved by the Board of Directors. Any amendment to or repeal of this Article XIII shall not adversely affect any right of a director of this corporation hereunder with respect to any right to indemnification that arises prior to such amendment or repeal.

 




Exhibit 3.7

 

AMENDED AND RESTATED

 

BYLAWS

 

OF

 

CROWN RESOURCES CORPORATION

 

ARTICLE 1

 

Offices

 

Section 1.               Business Offices . The principal office of the corporation shall be designated from time to time by the corporation and may be within or outside of Washington. The corporation may have such other offices, either within or outside Washington, as the board of directors may designate or as the business of the corporation may require from time to time.

 

Section 2.               Registered Office . The registered office of the corporation, required by the Washington Business Corporation Act to be maintained in Washington, may be but is not necessarily identical with the principal office if in Washington, and the address of the registered office may be changed from time to time by the board of directors.

 

ARTICLE II

 

Shareholders

 

Section 1.               Annual Meetings . An annual meeting of the shareholders shall be held on the first Monday in the month of May in each year, or on such other date as may be determined by the board of directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated in these bylaws for any annual meeting of the shareholders, or at any adjournment of such meeting, the board of directors shall cause the election to be held at a meeting of the shareholders as soon after such annual meeting (as the same may be adjourned) as is convenient. Failure to hold an annual meeting as required by these bylaws shall not invalidate any action taken by the board of directors or officers of the corporation.

 

Section 2.               Special Meetings . Special meetings of the shareholders for any purpose or purposes, unless otherwise prescribed by statute, may be called by the chairman of the board of directors, the president or the board of directors and shall be called by the president at the request of the holders of not less than ten percent of all the outstanding shares of the corporation entitled to vote at the meeting.

 

Section 3.               Place of Meetings . Each meeting of the shareholders shall be held at such place, either within or outside Washington, as may be designated in the notice of meeting. If no

 

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place is designated in any such notice, the relevant meeting shall be held at the registered office of the corporation in Washington.

 

Section 4.               Notice of Meetings . Except as otherwise prescribed by statute, written notice of each meeting of the shareholders stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, except that notice of a shareholders’ meeting to act on an amendment to the articles of incorporation, a plan of merger or share exchange, a proposed sale of assets pursuant to RCW 23B.12.020, or the dissolution of the corporation shall be given no fewer than twenty nor more than sixty days before the meeting date, either personally or by first class, certified or registered mail, by or at the direction of the president, the vice president or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, addressed to each shareholder at such shareholder’s address as it appears on the stock transfer books of the corporation, with postage prepaid. If properly requested by a person other than the corporation properly calling a meeting, the secretary shall give notice of such meeting at corporate expense. Any shareholder may waive notice of any meeting. The attendance of a shareholder at a meeting (or participation by a shareholder in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, unless the shareholder objects at the beginning of the meeting because of lack of notice or defective notice.

 

Section 5.               Fixing of Record Date . The board of directors may fix in advance a date as the record date for any determination of shareholders, such date in any case to be not more than seventy days, and in case of a meeting of the shareholders, not less than ten days, prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of the shareholders or entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of the shareholders has been made as provided in this Section, such determination shall apply to any adjournment of such meeting, unless such adjournment lasts for more than 120 days from the date of the original meeting, in which event a new record date must be established.

 

Section 6.               Voting List . The officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete list of the shareholders who are entitled to be given notice of a meeting of the shareholders, arranged by voting group, and within each voting group by class or series of shares, and show the address and number of shares held by each shareholder. The shareholder list must be available for inspection by any shareholder, beginning on the earlier of ten days before the meeting for which the list was prepared and continuing throughout the meeting and any meeting adjournments. The original stock transfer books shall be prima facie evidence as to the shareholders who are entitled to examine such list or transfer books or to vote at any meeting of the shareholders. Failure to comply with the requirements of this Section shall not affect the validity of any action taken at such meeting.

 

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Section 7.               Proxies . At each meeting of the shareholders, a shareholder may vote in person or by proxy executed in writing by the shareholder or by such shareholder’s duly authorized attorney-in-fact, or by a written statement of the appointment transmitted by telegram, teletype or other electronic transmission along with written evidence from which it can be determined that the shareholder transmitted or authorized the transmission of the appointment. Such proxy shall be filed with the secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven months from the date of such proxy’s execution, unless otherwise provided in the proxy.

 

Section 8.               Quorum . Except as otherwise required by statute or the articles of incorporation, a majority of the outstanding shares of the corporation entitled to vote on a matter, represented in person or by proxy, shall constitute a quorum for action on such matter at each meeting of the shareholders. If a quorum exists, a matter will be approved, except as otherwise provided by statute or the articles of incorporation, if the number of votes cast in favor of such matter exceeds the number of votes cast against such matter. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting without further notice other than an announcement at the meeting of the new date, time and place; provided, however, that if the adjournment is for more than thirty days, or if after the adjournment a new record date for the adjourned meeting is or must be fixed by statute or under these bylaws, notice of the adjourned meeting must be given to shareholders of record who are entitled to vote at the meeting. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

 

Section 9.               Voting of Shares . Except as otherwise provided by law, the articles of incorporation or these bylaws, each outstanding share of record is entitled to one vote on each matter submitted to a vote of the shareholders either at a meeting of the shareholders or pursuant to Section 11 of this Article II.

 

Section 10.             Voting of Shares by Certain Holders . Shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation is held by the corporation, may not be voted at any meeting or counted in determining the total number of outstanding shares at any given time. Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine. Shares held by an administrator, executor, guardian or conservator may be voted by such person, either in person or by proxy, without a transfer of such shares into such person’s name. Shares standing in the name of a trustee may be voted by such trustee, either in person or by proxy, but no trustee shall be entitled to vote shares held by such trustee without a transfer of such shares into such trustee’s name. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer of such shares into such receiver’s name if authority to do so is contained in an appropriate order of the court by which such receiver was appointed.

 

Section 11.             Action Without a Meeting . Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not

 

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less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and voted. Such consent (which may be signed in counterparts) shall have the same force and effect as a unanimous vote of the shareholders and may be stated as such in any articles or document filed with the Washington Secretary of State or other governmental agency.

 

ARTICLE III

 

Board of Directors

 

Section 1.               General Powers . The business and affairs of the corporation shall be managed under the direction of the corporation’s board of directors, except as otherwise provided in the Washington Business Corporation Act, the articles of incorporation or these bylaws.

 

Section 2.               Number, Tenure and Qualifications . The corporation shall have not less than three directors, except that in cases where all shares of the corporation are owned of record by fewer than three shareholders, the number of directors may be less than three, but not less than the number of shareholders. In no event shall the number of directors exceed nine. The number of directors shall be determined from time to time by a resolution of the board of directors. Directors shall be elected at each annual meeting of the shareholders. Each director shall hold office until the next annual meeting of the shareholders and thereafter until such director’s successor shall have been elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be residents of Washington or shareholders of the corporation. The directors may elect from their number a director to serve as chairman of the board of directors, for such term and with such authority as may be granted by the board of directors.

 

Section 3.               Vacancies; Removal . Any director may resign at any time by giving written notice through the president or the board of directors. A director’s resignation shall take effect on receipt of such notice unless another time is specified in such notice, and unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make such resignation effective. Any vacancy occurring on the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors, or by the shareholders. A director elected to fill a vacancy shall be elected for the unexpired term of such director’s predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall be filled by the affirmative vote of a majority of the directors then in office or by an election at a meeting of the shareholders called for that purpose, and a director so chosen shall hold office for the term specified in Section 2 of this Article III. At a meeting called expressly for that purpose, one or more directors or the entire board of directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors. Any directorship to be filled by reason of the removal of one or more directors by the shareholders or for any other reason may be filled by election by the shareholders at the meeting at which the director or directors are removed.

 

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Section 4.               Regular Meetings . A regular meeting of the board of directors shall be held immediately after and at the same place as the annual meeting of the shareholders, or as soon as practicable after the annual meeting of the shareholders, at the time and place, either within or outside Washington, as determined by the board of directors, for the purpose of electing officers and for the transaction of such other business as may come before the meeting. The board of directors may provide by resolution the time and place, either within or outside Washington, for the holding of additional regular meetings.

 

Section 5.               Special Meetings . Special meetings of the board of directors may be called by or at the request of the president or any two directors. The person or persons authorized to call special meetings of the board of directors may fix any place as the place, either within or outside Washington, for holding any special meeting of the board of directors called by such person(s).

 

Section 6.               Notice . Notice of each meeting of the board of directors stating the place, day and hour of the meeting shall be given to each director at least ten days prior to such meeting by the mailing of written notice by first class, certified, registered mail or overnight mail, or at least five days prior to such meeting by personal delivery of written notice or by telephonic or facsimile notice, except that in the case of a meeting to be held pursuant to Section 11 of this Article III, telephone notice may be given one day prior to such meeting. (The method of notice need not be the same to each director.) Special meetings of the board of directors must be preceded by at least two days’ notice of the date, time and place of the meeting. Notice shall be deemed to be given, if mailed, on the earlier of the date it is received or five days after it is deposited in the United States mail, with postage prepaid, addressed to the director at such director’s business or residence address; if personally delivered, when delivered to the director; if delivered via facsimile, upon confirmation of receipt by the receiving facsimile machine; and, if telephoned, when communicated to the director. Any director may waive notice of any meeting. The attendance of a director at a meeting (or participation by a director in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, except where a director objects to the holding of the meeting at the beginning of the meeting or promptly on such director’s arrival. Neither the business to be transacted at, nor the purpose of, any meeting of the board of directors need be specified in the notice or waiver of notice of such meeting unless required by statute.

 

Section 7.               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 at the meeting unless the director objects at the beginning of the meeting, or promptly on arrival, to holding the meeting or transacting business at the meeting and does not thereafter vote for or consent to any action taken at the meeting, or the director contemporaneously requests his dissent or abstention as to any specific action to be entered into the minutes of the meeting, or the director causes written notice of a dissent or abstention as to a specific action to be received by the presiding officer of the meeting before adjournment of the meeting or by the corporation promptly after adjournment of the meeting.

 

Section 8.               Quorum and Voting . A majority of the number of directors in office immediately before the meeting begins shall constitute a quorum for the transaction of business at any meeting of the board of directors, and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. If less than such

 

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majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than an announcement at the meeting until a quorum shall be present. No director may vote or act by proxy at any meeting of directors.

 

Section 9.               Fees and Compensation . Directors may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the Board of Directors. This section shall not be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee or otherwise and receiving compensation for those services.

 

Section 10.             Executive and Other Committees . By one or more resolutions adopted by the majority of the board of directors, the board of directors may designate from among the members of the board of directors an executive committee and one or more other committees consisting of not less than two directors, each of which (to the extent provided in the resolution establishing such committee) shall have and may exercise all of the authority of the board of directors except as otherwise provided by statute. Rules governing procedures for meetings of any committee of the board of directors shall be as established by the committee, or if the committee fails to do so, by the board of directors.

 

Section 11.             Meetings by Telephone . Members of the board of directors or any committee of the board of directors may participate in a meeting of the board of directors or committee by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Such participation shall constitute presence in person at the meeting.

 

Section 12.             Action Without a Meeting . Any action required or permitted to be taken at a meeting of the directors or any committee of the board of directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or committee members entitled to vote with respect to the subject matter concerned. Such consent (which may be signed in counterparts) shall have the same force and effect as a unanimous vote of the directors or committee members and may be stated as such in any articles or documents filed with the Washington Secretary of State or other governmental agency.

 

ARTICLE IV

 

Officers

 

Section 1.               Number and Qualifications . The initial officers of the corporation shall be a president, a secretary and a treasurer. The board of directors may also elect or appoint such other officers, assistant officers and agents, including vice presidents, assistant secretaries, a treasurer and assistant treasurers, as the board of directors may consider necessary. Any two or more offices may be held by the same person.

 

Section 2.               Election and Term of Office . The officers of the corporation shall be appointed by the board of directors annually at the first meeting of the board of directors held after each annual meeting of the shareholders. If the appointment of officers shall not occur at such meeting, such appointment shall be held as soon after such annual meeting as is convenient.

 

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Each officer shall hold office until such officer’s successor is duly appointed or until such officer’s earlier death, resignation or removal.

 

Section 3.               Compensation . The compensation of the officers shall be determined from time to time by the board of directors, and no officer shall be prevented from receiving any compensation by reason of the fact that such officer is also a director of the corporation.

 

Section 4.               Removal . Any officer may be removed by the board of directors or by a committee, if any, if so authorized by the board of directors, at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not in itself create contract rights.

 

Section 5.               Vacancies . Any officer may resign at any time, subject to any rights or obligations under any existing contracts between the officer and the corporation, by giving written notice to the president or to the board of directors. An officer’s resignation shall take effect at the time specified in such resignation, and the acceptance of such resignation shall not be necessary to make such resignation effective. A vacancy in any office, however occurring, may be filled by the board of directors for the unexpired portion of the term.

 

Section 6.               Authority and Duties of Officers . The officers of the corporation shall have the authority and shall exercise the powers and perform the duties specified below and as may be additionally specified by the president, the board of directors or these bylaws, except that in any event, each officer shall exercise such powers and perform such duties as may be required by law:

 

(a)            President . The president shall, subject to the direction and supervision of the board of directors: (i) have general and active control of the affairs and business of the corporation and general supervision of its officers, agents and employees; (ii) preside, in the absence of the chairman of the board, at all meetings of the shareholders and the board of directors, (iii) see that all orders and resolutions of the board of directors are carried into effect; and (iv) perform all other duties incident to the office of president and as from time to time may be assigned to the president by the board of directors.

 

(b)            Vice Presidents . The vice presidents, if any, shall assist the president and shall perform such duties as may be assigned by the president or by the board of directors. Such officers shall, at the request of the president, or in the absence of the president, inability or refusal to act, perform the duties of the president and when so acting, shall have all the powers of and be subject to all the restrictions on the president.

 

(c)            Secretary . The secretary shall: (i) keep the minutes of the proceedings of the shareholders, the board of directors and any committees of the board of directors; (ii) keep a record of all actions taken by the shareholders, the board of directors and any committees of the board of directors without a meeting; (iii) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (iv) keep a record of all waivers of notices of meetings of the shareholders, the board of directors and any committees of the board of directors; (v) be custodian of the corporate records and of the seal of the corporation; (vi) keep at the corporation’s registered office or principal place of business within or outside Washington a

 

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record containing the names and addresses of all shareholders and the number and class of shares held by each, unless such a record shall be kept at the office of the corporation’s transfer agent or registrar; (vii) have general charge of the stock transfer books of the corporation, unless the corporation has a transfer agent; (viii) be responsible for authenticating records of the corporation; and (ix) perform all other duties incident to the office of secretary and such other duties as from time to time may be assigned by the board of directors or the president.

 

(d)            Treasurer . The treasurer shall: (i) be the principal financial officer of the corporation and have the care and custody of all of the corporation’s funds, securities, evidences of indebtedness and other personal property and deposit the same in accordance with the instructions of the board of directors; (ii) receive and give receipts for monies paid into or on account of the corporation and pay out of the funds on hand all bills, payrolls, and other just debts of the corporation of whatever nature on maturity; (iii) unless there is a controller, be the principal accounting officer of the corporation and as such prescribe and maintain the methods and systems of accounting to be followed, keep complete books and records of account, prepare and file all local, state and federal tax returns, prescribe and maintain an adequate system of internal audit, and prepare and furnish to the president and the board of directors statements of account showing the financial position of the corporation and the results of the corporation’s operations; (iv) on request of the board of directors, make such reports to the board of directors as may be required at any time; and (v) perform all other duties incident to the office of treasurer and such other duties as from time to time may be assigned by the board of directors or the president. Assistant treasurers, if any, shall have the same powers and duties, subject to supervision by the treasurer. In the absence of a treasurer, the secretary shall perform the foregoing functions of the treasurer.

 

Section 7.               Surety Bonds . The board of directors may require any officer of the corporation to execute to the corporation a bond in such sums and with such sureties as shall be satisfactory to the board of directors, conditioned on the faithful performance of such officer’s duties and for the restoration to the corporation of all books, papers, vouchers, money and other property of whatever kind belonging to the corporation in the possession or under the control of such officer.

 

ARTICLE V

 

Shares

 

Section 1.               Issuance of Shares . The issuance or sale by the corporation of any shares of the corporation’s authorized capital stock of any class shall be made only on authorization by the board of directors.

 

Section 2.               Certificates . The shares of the corporation shall be represented by certificates unless otherwise provided by the board of directors. The certificates shall be in such form consistent with law as shall be prescribed by the board of directors. The certificates representing shares of stock of the corporation shall be consecutively numbered. The certificates shall be signed by two officers as designated by the board of directors, or in the absence of such designation, any two of the following officers: president, vice president, secretary.

 

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Section 3.               Consideration for Shares . Shares shall be issued for such consideration expressed in dollars as shall be fixed from time to time by the board of directors. In the absence of fraud in the transaction, the judgment of the board of directors as to the value of the consideration received for shares shall be conclusive.

 

Section 4.               Lost Certificates . In case of the alleged loss, destruction or mutilation of a certificate of stock, the board of directors may direct the issuance of a new certificate in lieu of such certificate on such terms and conditions in conformity with law as the board of directors may prescribe. The board of directors may, in the discretion of the board of directors, require a bond in such form and amount and with such surety as the board of directors may determine before issuing a new certificate.

 

Section 5.               Transfer of Shares . On surrender to the corporation or to a transfer agent of the corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled to such new certificate and to cancel the old certificate. Every such transfer of stock shall be entered on the stock transfer books of the corporation.

 

Section 6.               Holders of Record . The corporation shall be entitled to treat the holder of record of any share as the holder-in-fact of such share and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not the corporation shall have express or other notice of such claim or interest, except as may be required by the laws of Washington.

 

Section 7.               Transfer Agents, Registrars and Paying Agents . The board of directors may, in the discretion of the board of directors, appoint one or more transfer agents or registrars for making payment on any class of stock, bond, debenture or other security of the corporation. Such agents and registrars may be located either within or outside Washington. They shall have such rights and duties and shall be entitled to such compensation as may be agreed.

 

ARTICLE VI

 

Indemnification

 

Section 1.               Definitions . For purposes of this Article VI, the following terms shall have the meanings set forth below:

 

(a)            Corporation ” includes any domestic or foreign predecessor entity of a corporation in a merger or other transaction in which the predecessor’s existence ceased upon consummation of the transaction.

 

(b)            Director ” means an individual who is or was a director of the corporation or an individual who, while a director of the corporation, is or was serving at the corporation’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. A director is considered to be serving an employee benefit plan at the corporation’s request if the

 

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director’s duties to the corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. “Director” includes, unless the context requires otherwise, the estate or personal representative of a director.

 

(c)            Expenses ” include counsel fees.

 

(d)            Liability ” means the obligation to pay a judgment, settlement, penalty, fine, including an excise tax assessed with respect to an employee benefit plan, or reasonable expenses incurred with respect to a proceeding.

 

(e)            Official capacity ” means: (a) When used with respect to a director, the office of director in the corporation; and (b) when used with respect to an individual other than a director, the office in the corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the corporation. “Official capacity” does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise.

 

(f)             Party ” includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding.

 

(g)            Proceeding ” means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal.

 

Section 2.               Authority to Indemnify . Except as provided below, the corporation shall indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if:

 

(a)            The individual acted in good faith; and

 

(b)            The individual reasonably believed:

 

(i)             In the case of conduct in the individual’s official capacity with the corporation, that the individual’s conduct was in the best interests of the corporation; and

 

(ii)            In all other cases, that the individual’s conduct was at least not opposed to the best interests of the corporation; and

 

(c)            In the case of any criminal proceeding, the individual had no reasonable cause to believe that the individual’s conduct was unlawful.

 

The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct set forth above.

 

The corporation shall not indemnify a director (a) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or (b) in connection with any other proceeding charging improper personal benefit to the director,

 

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whether or not involving action in the director’s official capacity, in which the director was adjudged liable on the basis that personal benefit was improperly received by the director.

 

Indemnification permitted under this section in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding.

 

Section 3.               Mandatory Indemnification . The corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because of being a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding.

 

Section 4.               Advance for Expenses . The corporation shall pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if:

 

(a)            The director furnishes the corporation a written affirmation of the director’s good faith belief that the director has met the standard of conduct described in Section 2 above; and

 

(b)            The director furnishes the corporation a written undertaking, executed personally or on the director’s behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct.

 

Section 5.               Determination . The corporation may not indemnify a director under Section 2 above unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct described in Section 2 above. The determination shall be made (a) by the board of directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; (b) if a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors, in which designation directors who are parties may participate, consisting solely of two or more directors not at the time parties to the proceeding; (c) by special legal counsel (i) selected by the board of directors or its committee in the manner prescribed in clauses (a) or (b) of this Section 5 or (ii) if a quorum of the board of directors cannot be obtained under clause (a) of this Section 5 and a committee cannot be designated under clause (b) of this Section 5, selected by a majority vote of the full board of directors, in which selection directors who are parties may participate; or (d) by the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination.

 

Approval of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, approval of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under clause (c) of this Section 5 to select counsel.

 

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Section 6.               Indemnification of Officers, Employees, and Agents . An officer of the corporation who is not a director is entitled to mandatory indemnification to the same extent as a director. The corporation shall indemnify and advance expenses to an officer, employee, or agent of the corporation who is not a director to the same extent as to a director.

 

Section 7.               Insurance . The corporation shall purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the corporation, or who, while a director, officer, employee, or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual’s status as a director, officer, employee, or agent, whether or not the corporation would have power to indemnify the individual against the same liability under Section 2 or 3 above.

 

Section 8.               Report to Shareholders . If the corporation indemnifies or advances expenses to a director in connection with a proceeding by or in the right of the corporation, the corporation shall report the indemnification or advance in the form of a notice to the shareholders delivered with or before the notice of the next shareholders’ meeting.

 

ARTICLE VII

 

Miscellaneous

 

Section 1.               Waivers of Notice . Whenever notice is required by law, the articles of incorporation or these bylaws, a waiver of such notice in writing signed by the director, shareholder, or other person entitled to said notice, whether before or after the time stated in such waiver or, subject to Section 6 of Article III, such person’s appearance at such meeting in person or (in the case of a shareholder’s meeting) by proxy, shall be equivalent to such notice.

 

Section 2.               Voting of Securities by the Corporation . Unless otherwise provided by resolution of the board of directors, the president shall, on behalf of the corporation, attend in person or by substitute appointed by the president, or shall execute written instruments appointing a proxy or proxies, all meetings of the shareholders of any other corporation, association or other entity in which the corporation holds any stock or other securities and may execute written waivers of notice with respect to any such meetings. At all such meetings and otherwise, the president, in person or by substitute or proxy as aforesaid, may vote the stock or other securities so held by the corporation and may execute written consents or any other instruments with respect to such stock or securities and may exercise any and all rights and powers incident to the ownership of said stock or securities; subject, however, to the instructions, if any, of the board of directors.

 

Section 3.               Books and Records . The corporation shall keep correct and complete books and records of account, shall keep minutes of the proceedings of the meetings of the corporation’s shareholders and board of directors and shall keep all other records required by law. The corporation shall also keep at the corporation’s registered office or principal place of

 

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business or at the office of the corporation’s transfer agent or registrar a record of the corporation’s shareholders, giving the name and addresses of all shareholders and the number of shares held by each. Any person who is a shareholder of record, on five business days’ written notice stating the purpose of such examination, shall have the right to examine and copy, in person or by agent or attorney, at any reasonable time and for a purpose reasonably related to such person’s interests as a shareholder, the corporation’s books and records of account, minutes and record of shareholders.

 

Section 4.               Instruments . The Board of Directors may authorize any officer, agent or agents to enter into any contract or execute and deliver any instrument in the name of, and on behalf of, the corporation, and such authority may be general or confined to specific instances.

 

Section 5.               Amendments . Subject to repeal or change by action of the shareholders, the power to alter, amend or repeal these bylaws and adopt new bylaws shall be vested in the board of directors.

 

Section 6.               Interpretation . These bylaws and each provision of these bylaws are subject to applicable statutory law and to the articles of incorporation.

 

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Exhibit 3.8

 

CERTIFICATE OF INCORPORATION

 

OF

 

FAIRBANKS GOLD MINING, INC.

 

1.             The name of the corporation is:

 

Fairbanks Gold Mining, Inc.

 

2.             The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

 

3.             The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

4.             The total number of shares of stock which the corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares shall be One Hundred Dollars ($100) amounting in the aggregate to One Hundred Thousand Dollars ($100,000.00).

 

5              The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot.

 

6.             To the fullest extent permitted by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended, a director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as director. Any repeal or modification of this Article shall not adversely affect any right or protection of an existing director at the time of such repeal or modification.

 

7.             The name and mailing address of the incorporator is:

 

Helen M. Feeney
AMAX Inc.
200 Park Avenue
33rd Floor
New York, NY 10166

 

I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 1st day of March, 1992.

 

 

 

/s/ Helen M. Feeney

 

Helen M. Feeney

 




Exhibit 3.9

 

AMENDED AND RESTATED

 

BYLAWS

 

OF

 

FAIRBANKS GOLD MINING, INC.

 

ARTICLE I

 

Offices

 

Section 1.               Business Offices . The principal office of the corporation shall be designated from time to time by the corporation and may be within or outside of Delaware. The corporation may have such other offices, either within or outside Delaware, as the board of directors may designate or as the business of the corporation may require from time to time.

 

Section 2.               Registered Office . The registered office of the corporation, required by the Delaware General Corporation Law to be maintained in Delaware, may be but is not necessarily identical with the principal office if in Delaware, and the address of the registered office may be changed from time to time by the board of directors.

 

ARTICLE II

 

Shareholders

 

Section 1.               Annual Meetings . An annual meeting of the shareholders shall be held on the first Monday in the month of May in each year, or on such other date as may be determined by the board of directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated in these bylaws for any annual meeting of the shareholders, or at any adjournment of such meeting, the board of directors shall cause the election to be held at a meeting of the shareholders as soon after such annual meeting (as the same may be adjourned) as is convenient. Failure to hold an annual meeting as required by these bylaws shall not invalidate any action taken by the board of directors or officers of the corporation.

 

Section 2.               Special Meetings . Special meetings of the shareholders for any purpose or purposes, unless otherwise prescribed by statute, may be called by the president or the board of directors and shall be called by the president at the request of the holders of not less than one-tenth of all the outstanding shares of the corporation entitled to vote at the meeting.

 

Section 3.               Place of Meetings . Each meeting of the shareholders shall be held at such place, either within or outside Delaware, as may be designated in the notice of meeting. If no place is designated in any such notice, the relevant meeting shall be held at the registered office of the corporation in Delaware.

 



 

Section 4.               Notice of Meetings . Except as otherwise prescribed by statute, written notice of each meeting of the shareholders stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given 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 vice president or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, addressed to each shareholder at such shareholder’s address as it appears on the stock transfer books of the corporation, with postage prepaid. If properly requested by a person other than the corporation properly calling a meeting, the secretary shall give notice of such meeting at corporate expense. Any shareholder may waive notice of any meeting. The attendance of a shareholder at a meeting (or participation by a shareholder in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, unless the shareholder objects at the beginning of the meeting because of lack of notice or defective notice.

 

Section 5.               Fixing of Record Date . The board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days, and in case of a meeting of the shareholders, not less than ten days, prior to the date on which the particular action requiring such determination of shareholders is to be taken. The record date may not be more than ten days after the date on which the board of directors adopts a resolution fixing a new date for actions by written consent. If no record date is fixed by the board of directors, the record date shall be fixed as provided by statute. When a determination of shareholders entitled to vote at any meeting of the shareholders has been made as provided in this Section, such determination shall apply to any adjournment of such meeting, unless such adjournment lasts for more than 120 days from the date of the original meeting, in which event a new record date must be established.

 

Section 6.               Voting List . The officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete list of the shareholders who are entitled to be given notice of a meeting of the shareholders, arranged in alphabetical order, with the address of and the number of shares held by each. The shareholder list must be available for inspection by any shareholder, beginning on the earlier of ten days before the meeting for which the list was prepared or two business days after notice of the meeting is given and continuing throughout the meeting and any meeting adjournments. The original stock transfer books shall be prima facie evidence as to the shareholders who are entitled to examine such list or transfer books or to vote at any meeting of the shareholders. Failure to comply with the requirements of this Section shall not affect the validity of any action taken at such meeting.

 

Section 7.               Proxies . At each meeting of the shareholders, a shareholder may vote in person or by proxy executed in writing by the shareholder or by such shareholder’s duly authorized attorney-in-fact, or by a written statement of the appointment transmitted by telegram, teletype or other electronic transmission along with written evidence from which it can be determined that the shareholder transmitted or authorized the transmission of the appointment. Such proxy shall be filed with the secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven months from the date of such proxy’s execution, unless otherwise provided in the proxy.

 

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Section 8.               Quorum . Except as otherwise required by statute, a majority of the outstanding shares of the corporation entitled to vote on a matter, represented in person or by proxy, shall constitute a quorum for action on such matter at each meeting of the shareholders. If a quorum exists, a matter will be approved if the number of votes cast in favor of such matter exceeds the number of votes cast against such matter except in the case of the election of directors. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting without further notice other than an announcement at the meeting of the new date, time and place; provided, however, that if the adjournment is for more than thirty days, or if after the adjournment a new record date for the adjourned meeting is or must be fixed by statute or under these bylaws, notice of the adjourned meeting must be given to shareholders of record who are entitled to vote at the meeting. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

 

Section 9.               Voting of Shares . Except as otherwise provided by law, the certificate of incorporation or these bylaws, each outstanding share of record is entitled to vote on each matter submitted to a vote of the shareholders either at a meeting of the shareholders or pursuant to Section 11 of this Article II.

 

Section 10.             Voting of Shares by Certain Holders . Shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation is held by the corporation, may not be voted at any meeting or counted in determining the total number of outstanding shares at any given time. Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine. Shares held by an administrator, executor, guardian or conservator may be voted by such person, either in person or by proxy, without a transfer of such shares into such person’s name. Shares standing in the name of a trustee may be voted by such trustee, either in person or by proxy, but no trustee shall be entitled to vote shares held by such trustee without a transfer of such shares into such trustee’s name. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer of such shares into such receiver’s name if authority to do so is contained in an appropriate order of the court by which such receiver was appointed.

 

Section 11.             Action Without a Meeting . Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, the meeting and vote of stockholders may be dispensed with if one or more consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and delivered to the corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which the proceedings of minutes of meetings of stockholders are recorded. If, pursuant to this provision, corporate action is taken without a meeting by less than unanimous written consent, (i) prompt notice of the taking of such action shall be given to those stockholders who have not consented

 

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in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date therefor had been the date consents signed by a sufficient number of holders to take the action were delivered to the corporation as required by statute and these bylaws, and (ii) such action may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action.

 

ARTICLE III

 

Board of Directors

 

Section 1.               General Powers . The business and affairs of the corporation shall be managed under the direction of the corporation’s board of directors, except as otherwise provided in the Delaware General Corporation Law, the certificate of incorporation or these bylaws.

 

Section 2.               Number, Tenure and Qualifications . The number of directors shall be determined from time to time by a resolution of the board of directors. Directors shall be elected at each annual meeting of the shareholders. Each director shall hold office until the next annual meeting of the shareholders and thereafter until such director’s successor shall have been elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be residents of Delaware or shareholders of the corporation. The directors may elect from their number a director to serve as chairman of the board of directors, for such term and with such authority as may be granted by the board of directors.

 

Section 3.               Vacancies; Removal . Any director may resign at any time by giving written notice through the president or the secretary. A director’s resignation shall take effect on receipt of such notice unless another time is specified in such notice, and unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make such resignation effective. Any vacancy occurring on the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors, or by the shareholders. A director elected to fill a vacancy shall be elected for the unexpired term of such director’s predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall be filled by the affirmative vote of a majority of the directors then in office or by an election at a meeting of the shareholders called for that purpose, and a director so chosen shall hold office for the term specified in Section 2 of this Article III. At a meeting called expressly for that purpose, one or more directors or the entire board of directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors. Any directorship to be filled by reason of the removal of one or more directors by the shareholders or for any other reason may be filled by election by the shareholders at the meeting at which the director or directors are removed.

 

Section 4.               Regular Meetings . A regular meeting of the board of directors shall be held immediately after and at the same place as the annual meeting of the shareholders, or as soon as practicable after the annual meeting of the shareholders, at the time and place, either within or outside Delaware, as determined by the board of directors, for the purpose of electing

 

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officers and for the transaction of such other business as may come before the meeting. The board of directors may provide by resolution the time and place, either within or outside Delaware, for the holding of additional regular meetings.

 

Section 5.               Special Meetings . Special meetings of the board of directors may be called by or at the request of the president or any two directors. The person or persons authorized to call special meetings of the board of directors may fix any place as the place, either within or outside Delaware, for holding any special meeting of the board of directors called by such person(s).

 

Section 6.               Notice . Notice of each meeting of the board of directors stating the place, day and hour of the meeting shall be given to each director at least ten days prior to such meeting by the mailing of written notice, or at least five days prior to such meeting by personal delivery of written notice or by telephonic or facsimile notice, except that in the case of a meeting to be held pursuant to Section 11 of this Article III, telephone notice may be given one day prior to such meeting. (The method of notice need not be the same to each director.) Notice shall be deemed to be given, if mailed, on the earlier of the date it is received or five days after it is deposited in the United States mail, with postage prepaid, addressed to the director at such director’s business or residence address; if personally delivered, when delivered to the director; if delivered via facsimile, upon confirmation of receipt by the receiving facsimile machine; and, if telephoned, when communicated to the director. Any director may waive notice of any meeting. The attendance of a director at a meeting (or participation by a director in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, except where a director objects to the holding of the meeting at the beginning of the meeting or promptly on such director’s arrival. Neither the business to be transacted at, nor the purpose of, any meeting of the board of directors need be specified in the notice or waiver of notice of such meeting unless required by statute.

 

Section 7.               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 at the meeting unless the director objects at the beginning of the meeting, or promptly on arrival, to holding the meeting or transacting business at the meeting and does not thereafter vote for or consent to any action taken at the meeting, or the director contemporaneously requests his dissent or abstention as to any specific action to be entered into the minutes of the meeting, or the director causes written notice of a dissent or abstention as to a specific action to be received by the presiding officer of the meeting before adjournment of the meeting or by the corporation promptly after adjournment of the meeting.

 

Section 8.               Quorum and Voting . A majority of the number of directors in office immediately before the meeting begins shall constitute a quorum for the transaction of business at any meeting of the board of directors, and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. If less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than an announcement at the meeting until a quorum shall be present.

 

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Section 9.               Fees and Compensation . Directors may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the board of directors. This section shall not be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee or otherwise and receiving compensation for those services.

 

Section 10.             Executive and Other Committees . By one or more resolutions adopted by the majority of the board of directors, the board of directors may designate from among the members of the board of directors an executive committee and one or more other committees consisting of one or more directors, each of which (to the extent provided in the resolution establishing such committee) shall have and may exercise all of the authority of the board of directors; provided, however, that no committee shall have power or authority in reference to the following matters: (i) approving, adopting or recommending to the stockholders any action or matter (other than the election or removal of directors) expressly required by statute to be submitted to stockholders for approval, or (ii) adopting, amending or repealing any portion of these by-laws.

 

Section 11.             Meetings by Telephone . Members of the board of directors or any committee of the board of directors may participate in a meeting of the board of directors or committee by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Such participation shall constitute presence in person at the meeting.

 

Section 12.             Action Without a Meeting . Any action required or permitted to be taken at a meeting of the directors or any committee of the board of directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or committee members entitled to vote with respect to the subject matter concerned.

 

ARTICLE IV

 

Officers

 

Section 1.               Number and Qualifications . The officers of the corporation shall be a president, a secretary, and a treasurer. The board of directors may also elect or appoint such other officers, assistant officers and agents, including vice presidents, assistant secretaries, and assistant treasurers, as the board of directors may consider necessary. Any two or more offices may be held by the same person.

 

Section 2.               Election and Term of Office . The officers of the corporation shall be appointed by the board of directors annually at the first meeting of the board of directors held after each annual meeting of the shareholders. If the appointment of officers shall not occur at such meeting, such appointment shall be held as soon after such annual meeting as is convenient. Each officer shall hold office until such officer’s successor is duly appointed or until such officer’s earlier death, resignation or removal.

 

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Section 3.               Compensation . The compensation of the officers shall be determined from time to time by the board of directors, and no officer shall be prevented from receiving any compensation by reason of the fact that such officer is also a director of the corporation.

 

Section 4.               Removal . Any officer may be removed by the board of directors or by a committee, if any, if so authorized by the board of directors, at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not in itself create contract rights.

 

Section 5.               Vacancies . Any officer may resign at any time, subject to any rights or obligations under any existing contracts between the officer and the corporation, by giving written notice to the president or to the board of directors. An officer’s resignation shall take effect at the time specified in such resignation, and the acceptance of such resignation shall not be necessary to make such resignation effective. A vacancy in any office, however occurring, may be filled by the board of directors for the unexpired portion of the term.

 

Section 6.               Authority and Duties of Officers . The officers of the corporation shall have the authority and shall exercise the powers and perform the duties specified below and as may be additionally specified by the president, the board of directors or these bylaws, except that in any event, each officer shall exercise such powers and perform such duties as may be required by law:

 

(a)            President . The president shall be the chief executive officer of the corporation and shall, subject to the direction and supervision of the board of directors: (i) have general and active control of the affairs and business of the corporation and general supervision of its officers, agents and employees; (ii) preside, in the absence of the chairman of the board, at all meetings of the shareholders and the board of directors; (iii) see that all orders and resolutions of the board of directors are carried into effect; and (iv) perform all other duties incident to the office of president and as from time to time may be assigned to the president by the board of directors.

 

(b)            Vice Presidents . The vice presidents shall assist the president and shall perform such duties as may be assigned by the president or by the board of directors. Such officers shall, at the request of the president, or in the absence of the president, or the event of the inability or refusal by the president to act, perform the duties of the president and when so acting, shall have all the powers of and be subject to all the restrictions on the president.

 

(c)            Secretary . The secretary shall: (i) keep the minutes of the proceedings of the shareholders, the board of directors and any committees of the board of directors; (ii) keep a record of all actions taken by the shareholders, the board of directors and any committees of the board of directors without a meeting; (iii) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (iv) keep a record of all waivers of notices of meetings of the shareholders, the board of directors and any committees of the board of directors; (v) be custodian of the corporate records and of the seal of the corporation; (vi) keep at the corporation’s registered office or principal place of business within or outside Delaware a record containing the names and addresses of all shareholders and

 

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the number and class of shares held by each, unless such a record shall be kept at the office of the corporation’s transfer agent or registrar; (vii) have general charge of the stock transfer books of the corporation, unless the corporation has a transfer agent; and (viii) perform all other duties incident to the office of secretary and such other duties as from time to time may be assigned by the board of directors or the president.

 

(d)            Treasurer . The treasurer shall: (i) be the principal financial officer of the corporation and have the care and custody of all of the corporation’s funds, securities, evidences of indebtedness and other personal property and deposit the same in accordance with the instructions of the board of directors; (ii) receive and give receipts for monies paid into or on account of the corporation and pay out of the funds on hand all bills, payrolls, and other just debts of the corporation of whatever nature on maturity; (iii) unless there is a controller, be the principal accounting officer of the corporation and as such prescribe and maintain the methods and systems of accounting to be followed, keep complete books and records of account, prepare and file all local, state and federal tax returns, prescribe and maintain an adequate system of internal audit, and prepare and furnish to the president and the board of directors statements of account showing the financial position of the corporation and the results of the corporation’s operations; (iv) on request of the board of directors, make such reports to the board of directors as may be required at any time; and (v) perform all other duties incident to the office of treasurer and such other duties as from time to time may be assigned by the board of directors or the president. Assistant treasurers, if any, shall have the same powers and duties, subject to supervision by the treasurer. In the absence of a treasurer, the secretary shall perform the foregoing functions of the treasurer.

 

Section 7.               Surety Bonds . The board of directors may require any officer of the corporation to execute to the corporation a bond in such sums and with such sureties as shall be satisfactory to the board of directors, conditioned on the faithful performance of such officer’s duties and for the restoration to the corporation of all books, papers, vouchers, money and other property of whatever kind belonging to the corporation in the possession or under the control of such officer.

 

ARTICLE V

 

Shares

 

Section 1.               Issuance of Shares . The issuance or sale by the corporation of any shares of the corporation’s authorized capital stock of any class shall be made only on authorization by the board of directors.

 

Section 2.               Certificates . The shares of the corporation shall be represented by certificates unless otherwise provided by the board of directors. The certificates shall be in such form consistent with law as shall be prescribed by the board of directors. The certificates representing shares of stock of the corporation shall be consecutively numbered. The certificates shall be signed by two officers as designated by the board of directors, or in the absence of such designation, any two of the following officers: the president, the secretary, or the treasurer.

 

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Section 3.               Consideration for Shares . Shares shall be issued for such consideration as may be determined to be adequate by the board of directors. In the absence of fraud in the transaction, the judgment of the board of directors as to the adequacy of the consideration received for shares shall be conclusive.

 

Section 4.               Lost Certificates . In case of the alleged loss, destruction or mutilation of a certificate of stock, the board of directors may direct the issuance of a new certificate in lieu of such certificate on such terms and conditions in conformity with law as the board of directors may prescribe. The board of directors may, in the discretion of the board of directors, require a bond in such form and amount and with such surety as the board of directors may determine or such other assurance or security as permitted by applicable law before issuing a new certificate.

 

Section 5.               Transfer of Shares . On surrender to the corporation or to a transfer agent of the corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer and otherwise satisfying requirements permitted to be imposed by the corporation under applicable law, it shall be the duty of the corporation to issue a new certificate to the person entitled to such new certificate and to cancel the old certificate. Every such transfer of stock shall be entered on the stock transfer books of the corporation.

 

Section 6.               Holders of Record . The corporation shall be entitled to treat the holder of record of any share as the holder-in-fact of such share and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not the corporation shall have express or other notice of such claim or interest, except as may be required by the laws of Delaware.

 

Section 7.               Transfer Agents, Registrars and Paying Agents . The board of directors may, in the discretion of the board of directors, appoint one or more transfer agents or registrars for making payment on any class of stock, bond, debenture or other security of the corporation. Such agents and registrars may be located either within or outside Delaware. They shall have such rights and duties and shall be entitled to such compensation as may be agreed.

 

ARTICLE VI

 

Indemnification

 

Section 1.               The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement or otherwise actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with

 

9



 

respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful.

 

Section 2.               The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.

 

Section 3.               To the extent that any person referred to in the preceding two subsections of this Article VI has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in such subsections, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

 

Section 4.               Any indemnification under the first two subsections of this Article VI (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth therein. Such determination shall be made (a) by the board of directors by a majority vote of a quorum (as defined in the bylaws of the corporation) consisting of directors who were not parties to such action, suit or proceeding, or (b) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders.

 

Section 5.               Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors of the corporation in the specific case upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation as authorized in this Article VI.

 

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Section 6.               The indemnification provided by this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled, under any statute, bylaw, agreement, insurance policy, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

Section 7.               By action of its board of directors, notwithstanding any interests of the directors in the action, the corporation shall have power to purchase and maintain insurance, in such amounts as the board of directors deems appropriate, on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not he is indemnified against such liability or expense under the provisions of this Article VI and whether or not the corporation would have the power or would be required to indemnify him against such liability under the provisions of this Article VI or of the Delaware General Corporation Law, now or hereafter in effect, or by any other applicable law.

 

Section 8.               For the purposes of this Article VI, references to “the corporation” include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity.

 

ARTICLE VII

 

Miscellaneous

 

Section 1.               Waivers of Notice . Whenever notice is required by law, the certificate of incorporation or these bylaws, a waiver of such notice in writing signed by the director, shareholder, or other person entitled to said notice, whether before or after the time stated in such waiver or, subject to Section 6 of Article III, such person’s appearance at such meeting in person or (in the case of a shareholder’s meeting) by proxy, shall be equivalent to such notice.

 

Section 2.               Voting of Securities by the Corporation . Unless otherwise provided by resolution of the board of directors, the president shall, on behalf of the corporation, attend in person or by substitute appointed by the president, or shall execute written instruments appointing a proxy or proxies, all meetings of the shareholders of any other corporation, association or other entity in which the corporation holds any stock or other securities and may execute written waivers of notice with respect to any such meetings. At all such meetings and otherwise, the president, in person or by substitute or proxy as aforesaid, may vote the stock or

 

11



 

other securities so held by the corporation and may execute written consents or any other instruments with respect to such stock or securities and may exercise any and all rights and powers incident to the ownership of said stock or securities; subject, however, to the instructions, if any, of the board of directors.

 

Section 3.               Books and Records . The corporation shall keep correct and complete books and records of account, shall keep minutes of the proceedings of the meetings of the corporation’s shareholders and board of directors and shall keep all other records required by law. The corporation shall also keep at the corporation’s registered office or principal place of business or at the office of the corporation’s transfer agent or registrar a record of the corporation’s shareholders, giving the name and addresses of all shareholders and the number of shares held by each. Any person who is a shareholder of record, on written demand under oath stating the purpose of such examination, shall have the right to examine and make abstracts from, in person or by agent or attorney, at any reasonable time and for a purpose reasonably related to such person’s interests as a shareholder, the corporation’s books and records of account, minutes and record of shareholders.

 

Section 4.               Instruments . The board of directors may authorize any officer, agent or agents to enter into any contract or execute and deliver any instrument in the name of, and on behalf of, the corporation, and such authority may be general or confined to specific instances.

 

Section 5.               Amendments . Subject to repeal or change by action of the shareholders, the power to alter, amend or repeal these bylaws and adopt new bylaws shall be vested in the board of directors.

 

Section 6.               Interpretation . These bylaws and each provision of these bylaws are subject to applicable statutory law and to the certificate of incorporation.

 

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Exhibit 3.10

 

ARTICLES OF INCORPORATION

 

OF

 

MELBA CREEK MINING, INC.

 

ARTICLE I

 

The name of this corporation is Melba Creek Mining, Inc.

 

ARTICLE II

 

This corporation has perpetual existence.

 

ARTICLE III

 

This corporation is organized for the purposes of transacting any and all lawful business for which corporations may be incorporated under Title 10 of the Alaska Statutes, as amended.  The S.I.C. code number which most closely describes the activities in which the corporation will initially engage is 1040.

 

ARTICLE IV

 

The address of the registered office of the corporation is 510 L Street, Suite 600, Anchorage, Alaska 99501, and the name of the registered agent at such address is Bogle & Co. (Alaska).

 

ARTICLE V

 

The total authorized number of par value shares of the corporation is ten million (10,000,000) shares of the par value of One Cent ($.01) per share, amounting in the aggregate to One Hundred Thousand Dollars ($100,000.00).

 

ARTICLE VI

 

The first director of the corporation is one (1) in number and his names and address is:

 

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Name

 

Address

 

 

 

Geoffrey Hoyl

 

Suite 520, 355 Burrard St.
Vancouver, B.C. Canada V6C 2G8

 

The first director shall serve until the first annual meeting of shareholders and until his successor is elected and qualified.

 

For monetary damages for breach of fiduciary duties as directors, the personal liability of the directors to the corporation or its shareholders shall be eliminated or limited to the maximum extent permitted by AS 10.05.255, as the same may be hereafter amended.

 

ARTICLE VII

 

The name and address of the incorporator is:

 

Name

 

Address

 

 

 

Brian W. Durrell

 

510 L Street, Suite 600
Anchorage, AK 99501

 

ARTICLE VIII

 

At an election for directors, each shareholder entitled to vote at the election may vote, in person or by proxy, the number of shares of stock held by the shareholder for as many persons as there are directors to be elected and for whose election the shareholder has a right to vote. No cumulative voting for directors shall be permitted.

 

ARTICLE IX

 

The following is a list of the names and addresses of each affiliate which is a nonresident alien or a corporation whose place of incorporation is outside the United States:

 

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Name

 

Address

 

 

 

Hermes Resources Ltd.

 

19 th  Floor, 885 W. Georgia St.
Vancouver, B.C. Canada V6C 3H4

 

 

 

1594 Holdings Ltd.

 

19 th  Floor 885 W. Georgia St.
Vancouver, B.C. Canada V6C 3H4

 

ARTICLE X

 

(1)                                   No contracts or other transactions between the corporation and any other corporation, and no act of the corporation shall in any way be affected or invalidated by the fact that any of the directors of the corporation are pecuniarily or otherwise interested in, or are directors or officers of, such other corporation; and

 

(2)                                   Any director individually, or any firm of which any director may be a member, may be a party to, or may be pecuniarily or otherwise interested in, any contracts or transactions of the corporation, provided that the fact that he or such firm is so interested shall first be disclosed or shall have been known to the Board of Directors or a majority thereof.

 

ARTICLE XI

 

The corporation reserves the right 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 and powers conferred herein on shareholders and directors are subject to this reserved power.

 

ARTICLE XII

 

Shareholders of this corporation have no preemptive rights to acquire additional shares issued by the corporation.

 

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DATED: March 12, 1992

 

 

 

 

FAIRBANKS GOLD INC.

 

 

 

By:

/s/ Helen M. Feeney

 

 

Vice President

 

 

 

 

 

 

 

and

/s/ ILLEGIBLE

 

 

Assistant Secretary

 

 

 

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Exhibit 3.11

 

AMENDED AND RESTATED

 

BYLAWS

 

OF

 

MELBA CREEK MINING, INC.

 

ARTICLE I

 

Offices

 

Section 1.                                            Business Offices .  The principal office of the corporation shall be designated from time to time by the corporation and may be within or outside of Alaska.  The corporation may have such other offices, either within or outside Alaska, as the board of directors may designate or as the business of the corporation may require from time to time.

 

Section 2.                                            Registered Office .  The registered office of the corporation, required by the Alaska Corporations Code to be maintained in Alaska, may be but is not necessarily identical with the principal office if in Alaska, and the address of the registered office may be changed from time to time by the board of directors.

 

ARTICLE II

 

Shareholders

 

Section 1.                                            Annual Meetings .  An annual meeting of the shareholders shall be held on the first Monday in the month of May in each year, or on such other date as may be determined by the board of directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting.  If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day.  If the election of directors shall not be held on the day designated in these bylaws for any annual meeting of the shareholders, or at any adjournment of such meeting, the board of directors shall cause the election to be held at a meeting of the shareholders as soon after such annual meeting (as the same may be adjourned) as is convenient.  Failure to hold an annual meeting as required by these bylaws shall not invalidate any action taken by the board of directors or officers of the corporation.

 

Section 2.                                            Special Meetings .  Special meetings of the shareholders for any purpose or purposes, unless otherwise prescribed by statute, may be called by the chairman of the board of directors, the president or the board of directors and shall be called by the president at the request of the holders of not less than one-tenth of all the outstanding shares of the corporation entitled to vote at the meeting.

 

Section 3.                                            Place of Meetings .  Each meeting of the shareholders shall be held at such place, either within or outside Alaska, as may be designated in the notice of meeting.  If

 



 

no place is designated in any such notice, the relevant meeting shall be held at the registered office of the corporation in Alaska.

 

Section 4.                                            Notice of Meetings .  Except as otherwise prescribed by statute, written notice of each meeting of the shareholders stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than twenty 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 persons calling the meeting, to each shareholder of record entitled to vote at such meeting.  If mailed, such notice shall be deemed to be given when deposited in the United States mail, addressed to each shareholder at such shareholder’s address as it appears on the stock transfer books of the corporation, with postage prepaid.  If properly requested by a person other than the corporation properly calling a meeting, the secretary shall give notice of such meeting at corporate expense.  Any shareholder may waive notice of any meeting.  The attendance of a shareholder at a meeting (or participation by a shareholder in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, unless the shareholder objects at the beginning of the meeting because of lack of notice or defective notice.

 

Section 5.                                            Fixing of Record Date .  The board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days, and in case of a meeting of the shareholders, not less than twenty days, prior to the date on which the particular action requiring such determination of shareholders is to be taken.  If no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of the shareholders or entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders.  When a determination of shareholders entitled to vote at any meeting of the shareholders has been made as provided in this Section, such determination shall apply to any adjournment of such meeting, unless such adjournment lasts for more than 120 days from the date of the original meeting, in which event a new record date must be established.

 

Section 6.                                            Voting List .  At least twenty days before each meeting of shareholders, the officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete list of the shareholders who are entitled to be given notice of a meeting of the shareholders, arranged in alphabetical order, with the address of and the number of shares held by each.  The shareholder list must be available for inspection by any shareholder at any time during usual business hours for a period of twenty days before the meeting.  The list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of a shareholder during the meeting.  The original stock transfer books shall be prima facie evidence as to the shareholders who are entitled to examine such list or transfer books or to vote at any meeting of the shareholders.  Failure to comply with the requirements of this Section shall not affect the validity of any action taken at such meeting.

 

Section 7.                                            Proxies .  At each meeting of the shareholders, a shareholder may vote in person or by proxy executed in writing by the shareholder or by such shareholder’s duly authorized attorney-in-fact, or by a written statement of the appointment transmitted by telegram,

 

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teletype or other electronic transmission along with written evidence from which it can be determined that the shareholder transmitted or authorized the transmission of the appointment.  Such proxy shall be filed with the secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting.  No proxy shall be valid after eleven months from the date of such proxy’s execution, unless otherwise provided in the proxy.

 

Section 8.                                            Quorum .  Except as otherwise required by statute, a majority of the outstanding shares of the corporation entitled to vote on a matter, represented in person or by proxy, shall constitute a quorum for action on such matter at each meeting of the shareholders.  If a quorum exists, a matter will be approved, except as otherwise provided in the articles of incorporation, if the number of votes cast in favor of such matter exceeds the number of votes cast against such matter.  If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting without further notice other than an announcement at the meeting of the new date, time and place; provided, however, that if the adjournment is for more than thirty days, or if after the adjournment a new record date for the adjourned meeting is or must be fixed by statute or under these bylaws, notice of the adjourned meeting must be given to shareholders of record who are entitled to vote at the meeting.  At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

 

Section 9.                                            Voting of Shares .  Except as otherwise provided by law, the articles of incorporation or these bylaws, each outstanding share of record is entitled to vote on each matter submitted to a vote of the shareholders either at a meeting of the shareholders or pursuant to Section 11 of this Article II.

 

Section 10.                                     Voting of Shares by Certain Holders .  Shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation is held by the corporation, may not be voted at any meeting or counted in determining the total number of outstanding shares at any given time.  Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine.  Shares held by an administrator, executor, guardian or conservator may be voted by such person, either in person or by proxy, without a transfer of such shares into such person’s name.  Shares standing in the name of a trustee may be voted by such trustee, either in person or by proxy, but no trustee shall be entitled to vote shares held by such trustee without a transfer of such shares into such trustee’s name.  Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer of such shares into such receiver’s name if authority to do so is contained in an appropriate order of the court by which such receiver was appointed.

 

Section 11.                                     Action Without a Meeting .  Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting and without prior notice if one or more consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and

 

3



 

voted.  Such consent (which may be signed in counterparts) shall have the same force and effect as a unanimous vote of the shareholders and may be stated as such in any articles or document filed with the Alaska Corporations Code or other governmental agency.

 

ARTICLE III

 

Board of Directors

 

Section 1.                                            General Powers .  The business and affairs of the corporation shall be managed under the direction of the corporation’s board of directors, except as otherwise provided in the Alaska Corporations Code, the articles of incorporation or these bylaws.

 

Section 2.                                            Number, Tenure and Qualifications .  The corporation shall have three directors unless the number of shareholders is less than three, in which case the minimum number of directors may be the same as the number of shareholders.  The number of directors shall be determined from time to time by a resolution of the board of directors.  Directors shall be elected at each annual meeting of the shareholders.  Each director shall hold office until the next annual meeting of the shareholders and thereafter until such director’s successor shall have been elected and qualified or until such director’s earlier death, resignation or removal.  Directors need not be residents of Alaska or shareholders of the corporation.  The directors may elect from their number a director to serve as chairman of the board of directors, for such term and with such authority as may be granted by the board of directors.

 

Section 3.                                            Vacancies; Removal .  Any director may resign at any time by giving written notice through the president, the secretary or the board of directors.  A director’s resignation shall take effect on receipt of such notice unless another time is specified in such notice, and unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make such resignation effective.  Any vacancy occurring on the board of directors, except for a vacancy created by the removal of a director, may be filled by the 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 such director’s predecessor in office.  Any directorship to be filled by reason of an increase in the number of directors shall be filled by the affirmative vote of a majority of the directors then in office or by an election at a meeting of the shareholders called for that purpose, and a director so chosen shall hold office for the term specified in Section 2 of this Article III.  At a meeting called expressly for that purpose, one or more directors or the entire board of directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors.  Any directorship to be filled by reason of the removal of one or more directors by the shareholders or for any other reason may be filled by election by the shareholders at the meeting at which the director or directors are removed.

 

Section 4.                                            Regular Meetings .  A regular meeting of the board of directors shall be held immediately after and at the same place as the annual meeting of the shareholders, or as soon as practicable after the annual meeting of the shareholders, at the time and place, either within or outside Alaska, as determined by the board of directors, for the purpose of electing officers and for the transaction of such other business as may come before the meeting.

 

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The board of directors may provide by resolution the time and place, either within or outside Alaska, for the holding of additional regular meetings.

 

Section 5.                                            Special Meetings .  Special meetings of the board of directors may be called by or at the request of the president, the secretary, or any director.  The person or persons authorized to call special meetings of the board of directors may fix any place as the place, either within or outside Alaska, for holding any special meeting of the board of directors called by such person(s).

 

Section 6.                                            Notice .  Notice of each meeting of the board of directors stating the place, day and hour of the meeting shall be given to each director at least ten days prior to such meeting by the mailing of written notice, or at least 72 hours prior to such meeting by personal delivery of written notice or by telephonic or facsimile notice.  (The method of notice need not be the same to each director.)  Notice shall be deemed to be given, if mailed, on the earlier of the date it is received or five days after it is deposited in the United States mail, with postage prepaid, addressed to the director at such director’s business or residence address; if personally delivered, when delivered to the director; if delivered via facsimile, upon confirmation of receipt by the receiving facsimile machine; and, if telephoned, when communicated to the director.  Any director may waive notice of any meeting.  The attendance of a director at a meeting (or participation by a director in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, except where a director objects to the holding of the meeting at the beginning of the meeting or promptly on such director’s arrival.  Neither the business to be transacted at, nor the purpose of, any meeting of the board of directors need be specified in the notice or waiver of notice of such meeting unless required by statute.

 

Section 7.                                            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 at the meeting unless the director objects at the beginning of the meeting, or promptly on arrival, to holding the meeting or transacting business at the meeting and does not thereafter vote for or consent to any action taken at the meeting, or the director contemporaneously requests his dissent or abstention as to any specific action to be entered into the minutes of the meeting, or the director causes written notice of a dissent or abstention as to a specific action to be received by the presiding officer of the meeting before adjournment of the meeting or by the corporation promptly after adjournment of the meeting.

 

Section 8.                                            Quorum and Voting .  A majority of the number of directors fixed by the articles or these bylaws constitutes a quorum for the transaction of business at any meeting of the board of directors, unless a greater number is required by the articles or these bylaws, and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors.  If less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than an announcement at the meeting until a quorum shall be present.  No director may vote or act by proxy at any meeting of directors.

 

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Section 9.                                            Fees and Compensation .  Directors may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the board of directors.  This section shall not be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee or otherwise and receiving compensation for those services.

 

Section 10.                                     Executive and Other Committees .  By one or more resolutions adopted by the majority of the board of directors, the board of directors may designate from among the members of the board of directors an executive committee and one or more other committees, each of which (to the extent provided in the resolution establishing such committee) shall have and may exercise all of the authority of the board of directors except as otherwise provided in the Alaska Corporations Code.  Rules governing procedures for meetings of any committee of the board of directors shall be as established by the committee, or if the committee fails to do so, by the board of directors.

 

Section 11.                                     Meetings by Telephone .  Members of the board of directors or any committee of the board of directors may participate in a meeting of the board of directors or committee by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other.  Such participation shall constitute presence in person at the meeting.

 

Section 12.                                     Action Without a Meeting .  Any action required or permitted to be taken at a meeting of the directors or any committee of the board of directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or committee members entitled to vote with respect to the subject matter concerned.  Such consent (which may be signed in counterparts) shall have the same force and effect as a unanimous vote of the directors or committee members and may be stated as such in any articles or documents filed with the Alaska Office of Corporations, Business, and Professional Licensing or other governmental agency.

 

ARTICLE IV

 

Officers

 

Section 1.                                            Number and Qualifications .  The corporation shall have a president, a secretary, and a treasurer.  The board of directors may also elect or appoint such other officers, assistant officers and agents, including vice presidents, assistant secretaries, and assistant treasurers, as the board of directors may consider necessary.  Any two or more offices may be held by the same person except the offices of president and secretary.

 

Section 2.                                            Election and Term of Office .  The officers of the corporation shall be appointed by the board of directors annually at the first meeting of the board of directors held after each annual meeting of the shareholders.  If the appointment of officers shall not occur at such meeting, such appointment shall be held as soon after such annual meeting as is convenient.  Each officer shall hold office until such officer’s successor is duly appointed or until such officer’s earlier death, resignation or removal.

 

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Section 3.                                            Compensation .  The compensation of the officers shall be determined from time to time by the board of directors, and no officer shall be prevented from receiving any compensation by reason of the fact that such officer is also a director of the corporation.

 

Section 4.                                            Removal .  Any officer may be removed by the board of directors or by a committee, if any, if so authorized by the board of directors, at any time, with or without cause.  Such removal shall be without prejudice to the contract rights, if any, of the person so removed.  Appointment of an officer or agent shall not in itself create contract rights.

 

Section 5.                                            Vacancies .  Any officer may resign at any time, without prejudice to the rights, if any, of the corporation under any existing contracts between the officer and the corporation, by giving written notice to the president or to the board of directors.  An officer’s resignation shall take effect at the time specified in such resignation, and the acceptance of such resignation shall not be necessary to make such resignation effective.  A vacancy in any office, however occurring, may be filled by the board of directors for the unexpired portion of the term.

 

Section 6.                                            Authority and Duties of Officers .  The officers of the corporation shall have the authority and shall exercise the powers and perform the duties specified below and as may be additionally specified by the president, the board of directors or these bylaws, except that in any event, each officer shall exercise such powers and perform such duties as may be required by law:

 

(a)                                  President .  The president shall, subject to the direction and supervision of the board of directors:  (i) have general and active control of the affairs and business of the corporation and general supervision of its officers, agents and employees; (ii) preside, in the absence of the chairman of the board, at all meetings of the shareholders and the board of directors; (iii) see that all orders and resolutions of the board of directors are carried into effect; and (iv) perform all other duties incident to the office of president and as from time to time may be assigned to the president by the board of directors.

 

(b)                                  Vice Presidents .  The vice presidents, if any, shall assist the president and shall perform such duties as may be assigned by the president or by the board of directors.  Such officers shall, at the request of the president, or in the absence of the president, or in the event of the inability or refusal of the president to act, perform the duties of the president and when so acting, shall have all the powers of and be subject to all the restrictions on the president.

 

(c)                                   Secretary .  The secretary shall:  (i) keep the minutes of the proceedings of the shareholders, the board of directors and any committees of the board of directors; (ii) keep a record of all actions taken by the shareholders, the board of directors and any committees of the board of directors without a meeting; (iii) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (iv) keep a record of all waivers of notices of meetings of the shareholders, the board of directors and any committees of the board of directors; (v) be custodian of the corporate records and of the seal of the corporation; (vi) keep at the corporation’s registered office or principal place of business within or outside Alaska a record containing the names and addresses of all shareholders and the

 

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number and class of shares held by each, unless such a record shall be kept at the office of the corporation’s transfer agent or registrar; (vii) have general charge of the stock transfer books of the corporation, unless the corporation has a transfer agent; and (viii) perform all other duties incident to the office of secretary and such other duties as from time to time may be assigned by the board of directors or the president.

 

(d)                                  Treasurer .  The treasurer shall:  (i) be the principal financial officer of the corporation and have the care and custody of all of the corporation’s funds, securities, evidences of indebtedness and other personal property and deposit the same in accordance with the instructions of the board of directors; (ii) receive and give receipts for monies paid into or on account of the corporation and pay out of the funds on hand all bills, payrolls, and other just debts of the corporation of whatever nature on maturity; (iii) unless there is a controller, be the principal accounting officer of the corporation and as such prescribe and maintain the methods and systems of accounting to be followed, keep complete books and records of account, prepare and file all local, state and federal tax returns, prescribe and maintain an adequate system of internal audit, and prepare and furnish to the president and the board of directors statements of account showing the financial position of the corporation and the results of the corporation’s operations; (iv) on request of the board of directors, make such reports to the board of directors as may be required at any time; and (v) perform all other duties incident to the office of treasurer and such other duties as from time to time may be assigned by the board of directors or the president.  Assistant treasurers, if any, shall have the same powers and duties, subject to supervision by the treasurer.  In the absence of a treasurer, the secretary shall perform the foregoing functions of the treasurer.

 

Section 7.                                            Surety Bonds .  The board of directors may require any officer of the corporation to execute to the corporation a bond in such sums and with such sureties as shall be satisfactory to the board of directors, conditioned on the faithful performance of such officer’s duties and for the restoration to the corporation of all books, papers, vouchers, money and other property of whatever kind belonging to the corporation in the possession or under the control of such officer.

 

ARTICLE V

 

Shares

 

Section 1.                                            Issuance of Shares .  The issuance or sale by the corporation of any shares of the corporation’s authorized capital stock of any class shall be made only on authorization by the board of directors.

 

Section 2.                                            Certificates .  The shares of the corporation shall be represented by certificates unless otherwise provided by the board of directors.  The certificates shall be in such form consistent with law as shall be prescribed by the board of directors.  The certificates representing shares of stock of the corporation shall be consecutively numbered.  The certificates shall be signed by two officers as designated by the board of directors, or in the absence of such designation, any two of the following officers:  the president, the secretary, or the treasurer.

 

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Section 3.                                            Consideration for Shares .  Shares shall be issued for such consideration as may be determined to be adequate by the board of directors.  In the absence of fraud in the transaction, the judgment of the board of directors as to the adequacy of the consideration received for shares shall be conclusive.

 

Section 4.                                            Lost Certificates .  In case of the alleged loss, destruction or mutilation of a certificate of stock, the board of directors may direct the issuance of a new certificate in lieu of such certificate on such terms and conditions in conformity with law as the board of directors may prescribe.  The board of directors may, in the discretion of the board of directors, require a bond in such form and amount and with such surety as the board of directors may determine or such other assurance or security as permitted by applicable law before issuing a new certificate.

 

Section 5.                                            Transfer of Shares .  On surrender to the corporation or to a transfer agent of the corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer and otherwise satisfying requirements permitted to be imposed by the corporation under applicable law, it shall be the duty of the corporation to issue a new certificate to the person entitled to such new certificate and to cancel the old certificate.  Every such transfer of stock shall be entered on the stock transfer books of the corporation.

 

Section 6.                                            Holders of Record .  The corporation shall be entitled to treat the holder of record of any share as the holder-in-fact of such share and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not the corporation shall have express or other notice of such claim or interest, except as may be required by the laws of Alaska.

 

Section 7.                                            Transfer Agents, Registrars and Paying Agents .  The board of directors may, in the discretion of the board of directors, appoint one or more transfer agents or registrars for making payment on any class of stock, bond, debenture or other security of the corporation.  Such agents and registrars may be located either within or outside Alaska.  They shall have such rights and duties and shall be entitled to such compensation as may be agreed.

 

ARTICLE VI

 

Indemnification

 

Section 1.                                            Indemnification .  The corporation shall indemnify a person who was, is, or is threatened to be made a party to a completed, pending, or threatened action or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise.  Indemnification shall include reimbursement of expenses, attorney fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with the action or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and,

 

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with respect to a criminal action or proceeding, the person had no reasonable cause to believe the conduct was unlawful.  The termination of an action or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to a criminal action or proceeding, the person had reasonable cause to believe that the conduct was unlawful.

 

The corporation shall indemnify a person who was, is, or is threatened to be made a party to a completed, pending, or threatened action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise.  Indemnification shall include reimbursement for expenses and attorney fees actually and reasonably incurred by the person in connection with the defense or settlement of the action if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation.  Indemnification may not be made in respect of any claim, issue, or matter as to which the person has been adjudged to be liable for negligence or misconduct in the performance of the person’s duty to the corporation except to the extent that the court in which the action was brought determines upon application that, despite the adjudication of liability, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for expenses that the court considers proper.

 

To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of an action or proceeding referred to in the foregoing paragraphs of this section, or in defense of a claim, issue, or matter in the action or proceeding, the director, officer, employee, or agent shall be indemnified against expenses and attorney fees actually and reasonably incurred in connection with the defense.

 

Section 2.                                            Determination .  Unless otherwise ordered by a court, indemnification under Section 1 of this Article VI may only be made by a corporation upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because the director, officer, employee, or agent has met the applicable standard of conduct set out in Section 1 of this Article VI.  The determination shall be made by (a) the board by a majority vote of a quorum consisting of directors who were not parties to the action or proceeding; or (b) independent legal counsel in a written opinion if a quorum under (a) of this subsection is (i) not obtainable; or (ii) obtainable but a majority of disinterested directors so directs; or (iii) approval of the outstanding shares.

 

Section 3.                                            Conditions to Indemnification .  The corporation shall pay or reimburse the reasonable expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition in the manner provided in Section 2 of this Article VI if (a) in the case of a director or officer, the director or officer furnishes the corporation with a written affirmation of a good faith belief that the standard of conduct described in Section 10.06.450(b) or Section 10.06.483(e) of the Alaska Corporations Code has been met; (b) the director, officer, employee, or agent furnishes to the corporation a written unlimited general undertaking, executed personally or on behalf of the individual, to repay the advance if it is ultimately

 

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determined that an applicable standard of conduct was not met; and (c) a determination is made that the facts then known to those making the determination would not preclude indemnification.

 

Section 4.                                            Other Indemnification .  The indemnification provided by this Article VI is not exclusive of any other rights to which a person seeking indemnification may be entitled under these bylaws or an agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in the official capacity of the person and as to action in another capacity while holding the office.  The right to indemnification continues as to a person who has ceased to be a director, officer, employee, or agent, and inures to the benefit of the heirs, executors, and administrators of the person.

 

Section 5.                                            Insurance .  The corporation may purchase and maintain insurance on behalf of a person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against the person and incurred by the person in that capacity, or arising out of that status, whether or not the corporation has the power to indemnify the person against the liability under the provisions of this section.

 

ARTICLE VII

 

Miscellaneous

 

Section 1.                                            Waivers of Notice .  Whenever notice is required by law, the articles of incorporation or these bylaws, a waiver of such notice in writing signed by the director, shareholder, or other person entitled to said notice, whether before or after the time stated in such waiver or, subject to Section 6 of Article III, such person’s appearance at such meeting in person or (in the case of a shareholder’s meeting) by proxy, shall be equivalent to such notice.

 

Section 2.                                            Voting of Securities by the Corporation .  Unless otherwise provided by resolution of the board of directors, the president shall, on behalf of the corporation, attend in person or by substitute appointed by the president, or shall execute written instruments appointing a proxy or proxies, all meetings of the shareholders of any other corporation, association or other entity in which the corporation holds any stock or other securities and may execute written waivers of notice with respect to any such meetings.  At all such meetings and otherwise, the president, in person or by substitute or proxy as aforesaid, may vote the stock or other securities so held by the corporation and may execute written consents or any other instruments with respect to such stock or securities and may exercise any and all rights and powers incident to the ownership of said stock or securities; subject, however, to the instructions, if any, of the board of directors.

 

Section 3.                                            Books and Records .  The corporation shall keep correct and complete books and records of account, shall keep minutes of the proceedings of the meetings of the corporation’s shareholders and board of directors and shall keep all other records required by law.  The corporation shall also keep at the corporation’s registered office or principal place of business or at the office of the corporation’s transfer agent or registrar a record of the

 

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corporation’s shareholders, giving the name and addresses of all shareholders and the number of shares held by each.  Any person who is a shareholder of record, on written demand stating the purpose of such examination, shall have the right to examine and make abstracts from, in person or by agent or attorney, at any reasonable time and for a purpose reasonably related to such person’s interests as a shareholder, the corporation’s books and records of account, minutes and record of shareholders.

 

Section 4.                                            Instruments .  The board of directors may authorize any officer, agent or agents to enter into any contract or execute and deliver any instrument in the name of, and on behalf of, the corporation, and such authority may be general or confined to specific instances.

 

Section 5.                                            Amendments .  Subject to repeal or change by action of the shareholders, and subject to statutory provisions, the power to alter, amend or repeal these bylaws and adopt new bylaws shall be vested in the board of directors.

 

Section 6.                                            Interpretation .  These bylaws and each provision of these bylaws are subject to applicable statutory law and to the articles of incorporation.

 

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Exhibit 3.12

 

REPERTOIRE NR. 11.470.-

 

AMENDMENT AND RESTATEMENT OF BY-LAWS

 

SOCIEDAD CONTRACTUAL MINERA “COMPAÑIA MINERA MARICUNGA”

 

*******************************

 

In Santiago, Chile, on November twenty-fourth of the year one thousand nine hundred and ninety nine, before me, MARIA GLORIA ACHARAN TOLEDO, Chilean citizen, attorney at law, national identity card number five million five hundred and seventy five thousand three hundred and sixty five dash two, duly commissioned Notary Public of the Forty-second Notary Public Office of Santiago, with offices at Matias Cousiño street, number one hundred and thirty seven, appears:  Mr. Juan Irarrazabal Covarrubias, Chilean citizen, married, attorney at law, national identity card number six million two hundred and thirty three thousand five hundred and fourteen, dash nine, domiciled in this city at Moneda street, nine hundred and seventy, twelfth story, on behalf of KINAM REFUGIO, INC. , formerly denominated as AMAX GOLD REFUGIO, INC., a company incorporated according to the laws of the State of Delaware, United States of America, domiciled at one hundred and eighty five South State Street, suite eight hundred and twenty, Salt Lake City, Utah eight, four, one, one, one, United States of America, and also on behalf of BEMA GOLD BERMUDA LTD. , a company incorporated according to the laws of Bermudas, with offices at Clarendon House, Church Street, Hamilton, Bermuda; the appearing party being of age, and states:  FIRST :  By public deed dated on August twenty second of the year one thousand nine hundred and ninety, signed before the Notary Public of Santiago, Mr. Andres Rubio Flores, the contractual mining company named as Campañia Minera Maricunga was incorporated.  The abstract of the public deed was recorded at page one hundred, number forty three, of the Property Registry of the Mining Registrar of Santiago, corresponding to the year one thousand nine hundred and ninety.  Subsequently, by public deed dated on November eighteenth of the year one thousand nine hundred and nine two, signed as well before the Notary Public of Santiago, Mr. Andres Rubio Flores, the articles of incorporation were amended and a restated text of the by-laws of Campañia Minera Maricunga was established.  SECOND :  By notarized document granted in Delaware, United States of America, on June tenth of the year one thousand nine hundred and ninety eight, the company Amax Gold Refugio,

 

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Inc., changed its name or corporate name, to Kinam Refugio, Inc., as is evidenced in the Amendment Certificate of the Company.  THIRD :  Hereby, Kinam Refugio Inc., hereinafter also KRI, formerly named as Amax Gold Refugio Inc., and Bema Gold Bermuda Ltd., hereinafter also Bema, in their capacity as sole shareholders of Campañia Minera Maricunga, agree to introduce several amendments to the by-laws currently in force, contained in the above-referred public deed, dated on November eighteenth of the year one thousand nine hundred and ninety two, and for these purposes they agree to set a restated text of the by-laws according to the following tenor:  RESTATED TEXT OF THE BY-LAWS OF CONTRACTUAL MINING COMPANY “COMPAÑIA MINERA MARICUNGA”. TITLE FIRST. - Name, Purpose, Domicile and Duration.- Article First Name .  The name or corporate name shall be “Campañia Minera Maricunga”, hereinafter also named in these by-laws as “the Company”.  The Company shall be governed by the provisions contained in these by-laws, and in that not foreseen in it, by the provisions set forth in Section Second, Paragraph Second of Title Eleventh of the Mining Code.  The provisions of Section First, of Paragraph Second of Title Eleventh of the Mining Code, shall only rule in the cases in which these by-laws expressly refer to it.  Article Second Purpose .   The exclusive purpose of the Company shall be the exploitation of one or more mining claims denominated as “Refugio One to One Hundred and Twelve”; “Maricunga Seventeen to Twenty”, and “Twenty Seven to Thirty”; “Maricunga Ninety Seven to One Hundred”; “Maricunga One Hundred and Twenty One to One Hundred and Twenty Four” and “Maricunga Two Hundred and Sixty Two”, all located in the Maricunga Mining District, Municipality of Tierra Amarilla, Third Region, plus any other mining claims or concessions purchased or obtained under any title whatsoever, that facilitate or enable the exploitation of the deposits contained therein.  It is understood as included within the purpose of the company, the financing for the development of the project and for the exploitation of said mining claims, the marketing of ores obtained thereof, and as well, the performance of any type of operations or activities necessary, convenient or related to the described purpose, hereinafter also designated as activities related to the execution of the Refugio Project.  Article Third Domicile .   The domicile of the Company shall be the Commune and City of Santiago, without prejudice of carrying out its activities at any location, region or commune in the country, being in capacity to establish agencies or branches where it is deemed convenient.  Article Fourth Term of Duration .  The term of duration of the Company shall be fifty years, counted as of the date of

 

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the articles of incorporation of the Company, and shall be automatically renewed for equal and subsequent periods of ten years each, unless shareholders representing fifty percent or more of the share capital or corporate capital, with at least six months in anticipation to the expiration of the respective period, do manifest their intention to terminate it, in an statement executed by means of a public deed, with a marginal notation recorded at the margin of the registration of the abstract of the Company in the corresponding Mining Registrar.  TITLE SECOND.  Share Capital and Shares.  Article Fifth:  Share Capital.  Share Series and Ownership .   The stock capital or corporate capital is divided into ten thousand shares, of which, five thousand shares shall correspond to Series “A”, and five thousand to Series “B”.  Therefore, each share of the Company represents one tenthousandth of the corporate capital, with the possibility of existence of fractions of a share.  In the event a transfer of Series “A” shares is carried out to shareholders of Series “B” shares or vice versa, the transferred shares shall remain within the same original series.  These shares are subscribed and paid for in the manner it is stated in Temporary Article First of these by-laws.  The share capital or corporate capital shall be subscribed and paid for in the manner established in the temporary articles of these by-laws, and can be increased or decreased in a Special Shareholders’ Meeting.  Article Sixth:  Shareholders Rights and Interest in the Corporate Capital .  The rights corresponding to Series “A” shareholders and Series “B” shareholders in dividends, benefits and in the winding-up of the Company, shall be equivalent to the percentage represented by the number of shares pertaining to each Series of shares in the overall shares in which the corporate capital is divided, safe those cases in which these by-laws or agreements adopted unanimously by Series “A” and Series “B” shareholders, do dispose it in a different manner.  Therefore, the rights of each Series “A” share and of each Series “B” share, shall be the equivalent to one tenth thousandth.  The percentage corresponding to each shareholder in the share capital of the Company represents his interest in the corporate capital.  The conveyance of shares shall be carried out by means of the registration of the transfer title or document in the Shareholders Registry of the Mining Registrar of Santiago.  The transfer title or document shall be contained in a public deed, further complying in all respects with that provided in Article one hundred and seventy eight of the Mining Code.  TITLE THIRD:  Shareholders Liability.  Article Seventh:  Liability .   Each shareholder shall be exclusively liable before the Company, up to the amount of its contribution to the corporate capital and with its shares, and shall not be liable in front of third parties for obligations of the Company.  TITLE

 

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FOURTH:  Administration.  Article Eighth:  Administration .   The administration of the Company and the use of its corporate name shall correspond to a Board of Directors consisting of four Directors, hereinafter, the Board of Directors.  The Directors can be shareholders or not.  Series “A” shareholders shall elect two Directors, and Series “B” shareholders shall elect two directors.  The shareholders of each of these Series of shares may also choose one or more alternate Directors, in order for them to act in substitution of any of its regular Directors.  At the moment that any Alternate Director is acting as a member of the Board, it shall be understood that he is doing so in absence or impediment of a regular Director and with the same rights as the latter, without need to evidence before third parties the absence or impediment of one or more of the regular Directors, for the validity of the resolutions adopted with the attendance of said alternate Director.  Article Ninth:  Election of Directors .   The Directors shall be elected in separate ballots for each Series of shares and which shall be held at the General Shareholders Meetings of the Company.  Those that in the same and sole ballot obtain the two higher majorities in each Series of shares shall be elected as regular Directors.  At the same Shareholders Meeting and according to the same procedure, the alternate Directors shall be elected.  The Directors shall last one year in the exercise of their duties and may be indefinitely re-elected.  Once elected, the Directors will remain in their duties until the next General Shareholders Meeting, or until their resignation, removal, death or impediment.  At the moment the vacancy of a Director is produced, the Director(s) from the same Series of shares that had elected or appointed the corresponding Director, shall be in capacity to appoint its alternate.  Article Tenth:  Voting .   The Directors elected by the shareholders of each Series of shares, shall jointly have a number of votes equivalent to the interest in the corporate capital corresponding to the registered owners of each one of said Series of shares.  In the event that a shareholder is the registered owner of Series “A” and “B” shares, the Directors it elects shall have the aggregate votes corresponding to the participation of said shareholder in the corporate capital, and the directors chosen by the other shareholder, shall in turn have the aggregate number of votes corresponding to the total participation of said other shareholder in the corporate capital, taking into consideration for those purposes the fractions of a share, if there were any.  For the purposes of voting within the Board of Directors, it shall be deemed that the overall Directors jointly have a total of one hundred votes, which shall be divided among them in the manner that is determined in these by-laws.  If for example, the participation in the corporate capital of each

 

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Series of shares is fifty percent, it shall correspond to directors of each Series, fifty votes, in all matters that are subject to the resolution of the Board of Directors.  If it is required, vote fractions shall be admitted, according to the participation of the shareholders in the corporate capital.  In case of attendance of a sole Director appointed by the shareholders of each Series, said Director shall have voting rights for all shares pertaining to said Series.  Article Eleventh:  Board of Directors Meetings .   The Board of Directors shall hold its regular meetings at dates, hours, and places predetermined by the Board of Directors and specified in the notice of the call.  The Board of Directors shall hold at least one meeting annually.  Furthermore, one or more Directors may call to a special meeting of the Board of Directors, with at least five working days in anticipation.  In case of urgency, it shall be sufficient to call to a special meeting by means of a notice granted with a reasonable anticipation.  The Board of Directors shall go into session in first call, with the attendance of Directors representing the absolute majority of the capital or the corporate capital, and in second call, with the attendance of Directors representing at least fifty percent of the share capital or the corporate capital.  The Board of Directors meetings may be held in locations within Chile or abroad, as determined by the Board with sufficient anticipation and established in the corresponding call.  Article Twelfth:  Call to meetings .   The call to Board of Directors meetings, whether annual, regular or special, shall be served to each Director.  The chairman or the person empowered to do so by the Board shall call to a regular meeting, and in case of special meetings, these shall be called by the Director or Directors requesting it.  Each call must contain an agenda with indications in the respective meeting.  In any case, with the consent or favourable votes of Directors representing the absolute majority of the share capital or corporate capital, any matters can be addressed therein.  Article Thirteenth:  Majority needed to adopt resolutions Safe from those cases in which these by-laws establish a different majority, the favourable votes of directors representing the absolute majority of the share capital or the corporate capital, shall be required in order to adopt resolutions during the Board meetings where quorum is present.  The Board may adopt resolutions without holding a formal meeting, if and when all directors having voting right concur to said agreement and grant their consent in writing.  The display of a copy of the minute, in which said agreements are contained, shall suffice as evidence of their validity before third parties, duly certified by the Secretary, or by whoever is replacing it.  The resolutions may be executed without need of approving the minute in a latter meeting.  If any of the attendants dies, refuses to sign the minute, or is impeded to do so due to

 

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any reason whatsoever, evidence of the circumstances shall be left at the foot of the same, and this shall be accounted for in the next General or Special Shareholders Meeting, and which nevertheless, shall not prevent the validity of the adopted agreements.  The Director that refuses to sign the minute must state the grounds for its determination.  Safe that these by-laws establish otherwise, in case it is not possible to obtain the required majority of votes relating to any matter within the competence of the Board of Directors, the Chairman of the Board shall have a casting vote.  Nevertheless, the following matters shall require the favourable votes of Directors representing the absolute majority of the share capital or the corporate capital, and shall not be subject to the Chairman’s casting vote:  one) With the exception of the initial program and budget, the approval of any program of operations to be carried out by the Company, and of any budget for costs to be incurred for the execution of said programs, including engineering and construction stages; two) A capital investment for an expansion of facilities after completion of the construction of the plant and facilities for the Refugio Project, for more than two million dollars per year, safe that this restriction shall not apply to those expenses allocated to repair, rehabilitation or renewal of the plant, facilities, or equipment; three) The abandonment, sale or disposal of any of the assets of the Company during any year, that are valued over two million dollars, safe that this restriction shall not be applied to:  /i/ sale or transfer of products, surplus, or plant, or obsolete equipment or other materials, in the ordinary course of business; /ii/ abandonment, sale or transfer of any mining claim, surface land lots or water rights, for an amount lesser than two million dollars; four) The settlement of any litigation, claim, arbitration proceeding or complaint, involving the Company or its assets, for more than one million dollars; five) Exploration or development of the Refugio Project mining claims not encompassed in the feasibility study approved by the Board, for amounts in excess of one million dollars per year; six) Indebtedness of the Company with third parties; safe loans obtained for working capital through one or more credit lines, that shall not exceed at any moment the aggregate amount of five million dollars; seven) The amendment of the general scope of powers and duties of the General Manager; eight) Approval of commitments exceeding in ten percent that stated in operations programs and budgets approved by the Board; nine) Approval of any contract between the Company and an affiliate of a shareholder, for a period over six months, or for amounts exceeding the equivalent of two hundred thousand dollars of the United States of America, during any period of six months.  It is exempted from this requisite of approval, any

 

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rendering of services agreement relating to any operation agreement between the Company and a shareholder or an affiliate thereof.  For these purposes, it shall be understood as affiliate of an entity, a company, joint venture or other type of legal entity that controls or is controlled by other, or that is under a common control of said entity.  For this purpose control means the capacity to manage or determine the administration of the legal entity, through the ownership of shares or rights to the same, or by existing agreements, or in any other manner whatsoever; ten) Any other matter that has been previously approved by the Board, by agreement of Directors representing the absolute majority of the share capital or the corporate capital, or that has been previously awarded by arbitration.  The unanimous approval of Series “A” and Series “B” shares Directors shall be requested for the following matters:  a) a decision to suspend mining extraction works, safe the one caused due to governmental acts or omissions; impossibility to normally obtain equipment or supplies, strikes or labour problems, or any other event of force majeur.  Nevertheless, said decision including any amendment to the approved operational program and the cost budget of said program, may be carried out by the Board of Directors, and the Chairman of the Board is empowered to decide on any draw, in case it is not possible to obtain the majority of votes required for any matter in which the Company has obtained a negative cash flow during six consecutive months in its operational activities, as determined in accordance with generally accepted accounting principles in the United States of America; b) The abandonment, sale or disposal of the overall, or a substantial part of all the assets of the Company, safe that this restriction shall not apply to sales or transfers of products, surplus, or of plant or obsolete equipment, or other materials in the ordinary course of business; c) A capital investment for the expansion of the facilities after the completion of the construction of the plant and facilities of the Refugio Project, for an amount over eight million dollars per year.  In the event that the needed majorities referred to for the adoption of Board resolutions are not obtained, the corresponding matter can be subject to arbitration.  Article Fourteenth:  Chairman of the Board .   So long as Series “B” shareholders hold at least a fifty percent of the corporate capital, a Director appointed by Series “B” shares shall be elected by the Board as its Chairman, and whom shall also chair the General Shareholder Meetings and the Company.  If Series “B” shareholders do not have at least a fifty percent of the share capital or of corporate capital, a Director chosen by majority of votes of the Directors, shall fulfill the position as Chairman of the Board.  The Chairman of the Board, or during his absence any Alternate Director replacing him,

 

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shall preside over the Board meetings with the rights conferred to the Chairman by these by-laws.  The procedure for the Board meetings shall be determined by the Board itself.  Article Fifteenth:  Board of Directors Meeting Minutes .   Board of Directors meetings shall be recorded in minutes drafted by the person appointed by the Board, who shall distribute copies of the same to each one of the Directors within the fifteen days following the date of the meeting.  Once the minutes have been signed by at least one Director chosen by the shareholders of each Series of shares, they shall constitute the official record of the resolutions adopted by the Board.  Article Sixteenth:  Directors Expenses and Remunerations .   If it is requested that operating personnel of the Company is to attend Board meetings, the reasonable expenses being incurred for their attendance thereto, shall be borne by the Company.  Article Seventeenth:  Directors Resignation .   Any Director may resign at any moment by means of a written notice addressed to the Chairman of the Board, accounting for said resignation.  Said resignation shall be understood effective on the date of reception of said notice, or as from the date stated in the same letter of resignation.  In order for this resignation to be effective, its acceptance shall not be necessary.  Article Eighteenth:  Removal of Directors .   Any Director can be removed at any moment with or without stating reasons, by agreement adopted with the favourable vote of the majority of the shares corresponding to the Series having the right to choose said Director, and for which a special meeting of said shareholders must be held, specially called for said purpose.  Said removal can also be carried out without holding said special meeting, if and when all the shareholders of the corresponding Series with voting right concur to said agreement and adopt said resolution in writing.  The vacancy produced at the Board due to said removal can be occupied by said shareholders in any of the aforementioned manners.  Article Nineteenth:  Vacancy .   Unless otherwise provided for by these bylaws, any vacancy produced at the Board due to any reason whatsoever, may be occupied by agreement adopted with the favourable vote of the majority of the shares corresponding to the Series having the right to choose the corresponding Director.  Said election can be made as well without holding a special meeting, if and when all the shareholders of the corresponding Series with voting right concur to said agreement and adopt said resolution in writing.  The Director chosen to occupy said position shall be elected for its predecessor remaining period, and shall hold office until his resignation, removal, death or impediment takes place.  Article Twentieth:  Committees .   The Board may establish one or more committees, such as the executive, technical or other committees formed in

 

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the manner and by the persons that the same Board shall determine.  The Board shall establish the rules for the functioning of each appointed committee, and which shall have the powers and duties granted by the Board and shall account directly to it.  The powers of the committees upon which the Board is delegating part of its powers and duties must be exercised within the frame of the general policies approved by the Board and subject to its supervision.  Article Twenty First:  Board of Directors Powers .   It shall correspond to the Board of Directors to determine the general policies, objectives, procedures, methods and actions of the Company.  All operations to be performed by the Company, expenses or disbursements incurred and assets to be acquired by the same must be subject to the programs and budgets approved by the Board.  The Board shall have the judicial and extrajudicial representation of the Company, including those powers referred to in Article one hundred and ninety three of the Mining Code.  Furthermore, the Board shall have full powers of administration and disposal, being in capacity to execute all acts and enter into all contracts and functions of any nature whatsoever, which are directly or indirectly related to the purpose of the Company, and which are not specified in these by-laws as matters of the venue of the General Shareholders Meeting.  Without this enumeration constituting any limitation whatsoever of its powers, the Board may execute and enter into the following acts and contracts:  a) To direct, act, supervise and participate in all businesses, whether individual or corporate, in which the Company has or may in the future have an interest, representing it in each one of said businesses or Companies, whether these are partnerships, limited liability companies, corporations, legal mining companies and/or contractual mining companies, before the Government of the Republic of Chile, Ministries, Regional Intendencies, Provincial Governors, Majors, Copper Corporation, Copper Commission, Foreign Investment Committee, Central Bank of Chile, Banco del Estado de Chile, National Mining Company (from its denomination in Spanish, “ Empresa Nacional de Mineria ”), National Development Agency (from its denomination in Spanish, “ Corporacion de Fomento de la Produccion’ ’), private or development Banks and in general, before any public service, public or private authority, natural or artificial persons; to carry out before them affidavits, rectifications, clarifications and proposals; to sign applications, legal briefs, sign public and/or private deeds, being in capacity to agree all modalities that said authorities, bodies or artificial persons do require for the proceedings before them; b) To contract, transfer, modify, change destiny or services, and to declare the termination of contracts and services of all employees, whether by dismissal or under

 

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any other manner, or for other reasons established for the termination of the work agreements; to fix wages, salaries or other benefits for the employees; c) To buy, sell, barter, assign, settle, transfer and aleniate in any manner whatsoever movables, shares, bonds or securities; to attend to auctions or public or private bids; to acquire and/or assign all types of goods; to agree on sale or purchase prices, setting the terms of payment; to determine surfaces, characteristics and boundaries of all goods acquired or transferred; to sign and enter into transportation, supply and commission agreements; d) To give and receive in lease all types of movable goods and real estate different from mining claims, agreeing on the rental or the term of the lease; to enter into manufacturing or construction agreements for material works and lease of services; e) To apply, agree and establish mining easements; f) To call meetings of legal mining or contractual mining companies or corporations, to set the purpose of said calls, to attend with voice and vote to said meetings; g) To file mining claims, to request “ mensura ” (patents) of mining claims, to appoint experts, to file oppositions against third parties “ mensuras ” (patents), to request approval and recording of measurement records of mining claims; to request and perform replacement of mining claims boundaries, to request voidness of concessions and the annulment of mining claims measurements; to request all types of exploration concessions, to exploit metal placers and/or rights to use surface or underground waters; to oppose to said concessions or request their voidness; h) To substitute by novation, release, collect, impute, to receive in payment and to pay debts and obligations, to accept things in lieu of payment, to assign credits and to accept their assignment, to resign and acknowledge actions and debts; to acknowledge or compensate judicial or extra judicial debts, to void and terminate all types of acts or contracts and to stipulate amounts, terms, interests, terms of payment and other conditions therein; to enter into insurance agreements and in case of disaster, to claim on the policies; i) To open, give, issue, accept and complement letters of credit, and letters or orders of credit, and other international trading documents, and to carry out foreign exchange transactions in general, inclusive buying and selling foreign currencies; j) To make contributions of foreign capital, to import goods charged to them, to liquidate foreign exchange and to enter into the corresponding contracts; k) To import and export goods, machinery, elements, merchandise and raw materials, and to execute all type of operations thereof relating to customs; to grant, sell, negotiate, endorse and withdraw bills of lading and freighting documents, and to file claims before administrative or judicial authorities, to file legal briefs and applications; to furnish guarantees and constitute bails; l) To contract with

 

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commercial banks, with Banco del Estado de Chile and credit institutions in general, whether national or foreign, deposit or credit current accounts or savings accounts, to operate on them, being in capacity to draw, overdraw, collect, cancel, endorse, renew and protest checks, to withdraw check books, and to acknowledge and challenge balances; to make deposits in cash, at sight, on term, conditional or of any other kind, and to withdraw them; to collect and perceive all that is owed or belongs to the Company due to any reason whatsoever; to sign with banks, Banco del Estado de Chile , credit, development or financial national or foreign institutions, operations related to money borrowing operations, with or without indexing, whether in the form of mutuatus, promissory notes, loans guaranteed with bills of exchange, advances against acceptance of bills of exchange, or in any other manner whatsoever, including opening letters of credit in foreign currency, whether by means of simple, revolving, documentary and other types of credit; to sign, draw, accept, collect, cancel, protest, reaccept, discount and endorse bills of exchange, promissory notes and other documents to the bearer and shipping documents; to deposit securities in custody, in guarantee and to withdraw them; to lease and make use of safe deposit boxes; m) To apply for and accept licenses, permits and official authorizations of any nature whatsoever, including waters, sanitary, municipal or of any other kind, and/or concessions of public services related to the Company’s purpose, agreeing on the due conditions, and to transfer them according to regulations in effect; n) To apply, register, use and exploit trademarks, commercial names, invention patents and other privileges, and to acquire them as well, under any title whatsoever; o) To grant general and special powers of attorney, to revoke them at its sole judgement, to delegate in all or part these powers, without said powers of attorney or delegations prevent the exercising of the power by the part of the attorney, to revoke said delegations at its sole judgment, to empower the delegate so that in turn he may delegate and revoke the power of attorney at its sole judgment, maintaining the agent the power to revoke at any moment the powers of attorney or delegations granted or those the delegates may have performed.  Article Twenty Second:  General Manager .   The Board of Directors shall appoint the General Manager of the Company.  Nevertheless, for as long as the shareholder(s) owners of Series “B” shares, or an affiliate thereof, is/are appointed, and continues being the operator of the Refugio Project, according to the operation agreement with the Company, said shareholder or shareholders owners of the Series “B” shares or its affiliate shall appoint the General Manager.  The General Manager shall be responsible for the administration of all matters pertaining to the

 

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ordinary course of business, operations and activities of the Company, and shall have all those powers specially vested upon him by the Board of Directors.  The position of General Manager shall be compatible with that of a Board member.  TITLE FIFTH.- General Shareholders Meetings.  Article Twenty Third:  General Shareholders Meeting.- The General Shareholders Meeting must meet once a year, in order to approve the balance sheet and the annual report, to resolve on the distribution of dividends and benefits, and for the election of the Board of Directors, on a date to be determined by the latter within the first four-month period of each year, with no less than fifteen days in anticipation to said meeting.  Shareholders representing at least a fifty percent of the share capital or the corporate capital may also call to General Shareholders Meetings.  Article Twenty Fourth:  Special Shareholders Meetings .   Special Shareholders Meetings shall be held at any time, for any special purpose determined by the Board of Directors.  Shareholders representing at least a fifty percent of the share capital or the corporate capital may also call to Special Shareholders Meetings.  Article Twenty Fifth :   The Shareholders Meetings shall be held in the place or locations that are stated in the notices of the call, whether in Chile or abroad.  Article Twenty Sixth:  Call to Shareholders Meetings .   The notice for the first call to each Shareholders Meeting, whether general or special, shall be sent with no less than fifteen and not more than thirty calendar days in anticipation to the date of the Shareholders Meeting, to each shareholder having voting right at the meeting, by means of personal delivery of the notice in writing to each shareholder, or the remittal of the same by certified mail, postage pre-paid, addressed to the shareholder to the address specified for the remittal of the notices at the registries of the Company.  The call to a Meeting must specify the place, date and time of the meeting.  The call to a Special Meeting must indicate as well the purpose of the same.  The notices for the second call can only be sent once the Meeting to be held in first call has failed, and in any case, the new Meeting must be called to be held within the subsequent thirty calendar days to the date set for the non performed Meeting.  Article Twenty Seventh:  Agenda and Procedure .   The Board of Directors shall have the responsibility to prepare an agenda for each Shareholders Meeting, subject to the right shareholders have to submit to the Meeting other matters of its venue which have not been included in the agenda.  The Chairman of the Board of Directors shall chair the Meeting.  Article Twenty Eighth:  Quorum .   The owners of the absolute majority of shares with voting right, whether personally attending or represented by proxy, shall constitute the quorum in first call in order to hold all the

 

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Shareholders Meetings, unless these by-laws do establish other majorities.  In second call, the Shareholders Meeting may be validly constituted with at least fifty percent of the share capital or corporate capital.  Article Twenty Ninth:  Postponement .   When the Meeting is postponed to another date or place by any reason whatsoever, a new call shall not be necessary if the date and place of the same have been announced at the suspended meeting.  The resumed Meeting may address all matters that could have been discussed at the original Meeting.  If postponement extends for over thirty days or, if after being it postponed, a new agenda is set for the resumed Meeting, each shareholder registered with a voting right at the Meeting shall be called for it.  Article Thirtieth:  Voting .   Each shareholder shall have the right at each Meeting, or in relation to any resolution that can be legally adopted by shareholders, without a formal Meeting being held, to one vote per each share registered at the date of the Meeting, taking into consideration for that purpose, fractions of a share if there were any.  Once the required quorum is met in a Shareholders Meeting, the vote of titleholders having the absolute majority of shares with voting rights, or of a series of shares if the issue to be addressed must only be resolved by said series, either personally attending or being represented at the Meeting, shall decide on any matter included on the agenda of said Meeting.  TITLE SIXTH.- Balance Sheets and Distribution of Profits. Article Thirty-First:  Balance Sheets .   The Company shall present a general balance sheet as of December thirty first of each year.  The balance sheet shall be subject to the approval of the General Shareholders Meeting.  Article Thirty-Second:  Profits .   The profits of the Company shall be distributed among shareholders according to the percentage represented in the overall shares in which the corporate capital belonging to each series of shares is divided, adjusted in the amounts available to be distributed that are agreed unanimously by Series “A” and Series “B” shareholders.  The distribution of profits, its manner and timing shall be determined by the General Shareholders Assembly.  TITLE SEVENTH.- Dissolution and Winding-up.  Article Thirty Third:  Dissolution .   The Company shall dissolve at the expiration of its duration term.  Furthermore, it can be dissolved by unanimous agreement of the shareholders of the Company, for bankruptcy or insolvency of the Company, and for any other legal reason.  Article Thirty Fourth:  Winding-up .   Once the Company has been dissolved its winding-up shall be carried out by the Board; the winding-up carried out by the Board shall adjust to the resolutions adopted by the shareholders.  TITLE EIGHTH.- Arbitration.  Article Thirty Fifth:  Arbitration .   Any difficulty arising due to the interpretation, fulfillment, validity

 

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or termination of this Corporate agreement or relating to the Company, or any controversy arising among the shareholders or the Directors elected by Series “A” shareholders and Directors elected by Series “B” shareholders, shall be resolved by an arbitrator.  The place of arbitration shall be Santiago, Chile.  Mrs. Laura Novoa Vasquez is appointed as arbitrator and if she is not able to perform, Mr. Manuel Vargas Vargas is appointed.  The appointed arbitrators are empowered to request from the parties, or to contract by themselves, the technical and expert repos they deem convenient, and as well, to request the assistance of specialized technicians.  In absence of the above-referred persons, the arbitrator shall be appointed by the parties in mutual agreement, or alternatively by the Ordinary Courts of Justice at the request of any of them.  In this last event and with the same powers, the arbitrator shall be appointed among those persons that are at present or formerly were regular tenured professors in Mining Law specialization at the Universities of Chile or Catolica de Chile in Santiago, for a period of at least five consecutive years, or otherwise, acted as a lawyer member of the Most Excellent Supreme Court for the same minimum period.  The service of the resolutions issued by the arbitrator, shall be made to the parties by means of a certified letter, addressed to the domiciles stated in their respective first filings or otherwise, to the last domicile stated by them in the Corporate Agreement, or in the last amendment of the by-laws, in case not appearing at the arbitration proceedings, or do not set domicile in their first filing.  Notwithstanding the above, the parties alternatively may by unanimous agreement of Series “A” and Series “B” shares, dispose that all conflicts arising be solved by arbitration in The United States of America, or otherwise.  TEMPORARY ARTICLE.  Temporary Article First :   The initial share capital of the company referred to in Article Fifth of the by-laws, is settled in the equivalent in national currency to the amount of ten thousand dollars of the United States of America, divided into ten thousand shares, of which five thousand shall pertain to Series “A” shares, and five thousand to Series “B shares.  Evidence is left that according to the articles of incorporation of the Company, dated on August twenty-second of the year one thousand nine hundred and ninety, granted at the Notary Public Office of Santiago of Mr. Andres Rubio Flores, the ten thousand shares in which the corporate capital is divided were fully paid for in the following manner:  In payment of the five thousand Series “A” shares, and of four thousand nine hundred and ninety nine Series “B” shares, Minera Bema Gold / Chile / Limitada, contributed transferring to the Company the title of ownership of the mining claim Refugio one hundred and five, located in the Maricunga

 

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mining district, Municipality of Tierra Amarilla , Province of Copiapo , whose survey record is registered at sheets one hundred and thirty two, backside, number forty six of the Property Registry of the Mining Registrar of Copiapo .  The shareholders assessed this contribution in the equivalent in national currency to the amount of nine thousand nine hundred and ninety nine dollars.  The remaining share of the Series “B” was paid by Bema Gold / U.S. / Inc. by means of the contribution of one dollar paid for in cash to the Company cashier’s office.  As from the deed of incorporation of the Company, the following share transfers have taken place:  a) On October twentyseventh of the year one thousand nine hundred and ninety two, Minera Bema Gold / Chile / Limitada, transferred five thousand Series “A” shares to Bema Gold / Bermuda / Ltd.; b) On November eighteenth of the year one thousand nine hundred and ninety two, Minera Bema Gold / Chile / Limitada transferred four thousand nine hundred and ninety nine Series “B” shares to Kinam Refugio, Inc., formerly Amax Gold Refugio Inc.; c) on November eighteenth of the year one thousand nine hundred and ninety two, Bema Gold / U.S. / Inc., transferred one share of Series “B” shares to Kinam Refugio Inc., formerly, Amax Gold Refugio Inc.  FOURTH :   The bearer of authorized copy of this deed is empowered to request all notations, recordings, sub-recordings and cancellations that may be pertinent in the corresponding registers.  The empowerment of Mr. Juan Irarrazabal Covarrubias to represent Kinam Refugio Inc., is contained in the Special Power of Attorney granted in Toronto, Ontario, Canada, formally registered in this Notary Public Office under the number one thousand six hundred and eleven, dated on November eleventh of the year one thousand nine hundred and ninety nine.  The appointment of Mr. Juan Irarrazabal Covarrubias to represent Bema / Gold / Bermuda / Ltd. is contained in the Special Power of Attorney granted in Vancouver, British Columbia, Canada, formally registered in this Notary Public Office under the number one thousand six hundred and twelve, dated on November eleventh of the year one thousand nine hundred and ninety nine, and which are not attached for being known to the parties.  In proof and prior reading, the appearing parties sign.  This deed has been recorded in the Public Documents Repertoire with this same date.  Copy is granted.  I Witness.

 

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Exhibit 3.13

 

Bylaws of Compañía Minera Mantos de Oro

 

TITLE FIRST. Name, Domicile, Duration and Business Purpose.

 

Article First. A contractual mining company named COMPAÑÍA MINERA MANTOS DE ORO is incorporated as a consequence of a change of company’s type.  It will be domiciled in the city of Santiago, Metropolitan Region, being authorized to establish agencies or branches in other zones of the country or abroad.

 

Article Second. The duration of the Company shall be of 50 years, as of the date of the deed of its original incorporation, that is, September 16, 1996.

 

Article Third. The business purposes of the Company shall be the prospecting, exploration and exploitation of mining concessions acquired by the Company under any title in the Republic of Chile.  The company will be authorized to execute any act and enter into any contract and agreement that directly or indirectly may lead to the fulfillment of its purpose.

 

TITLE SECOND. Capital and Shares.

 

Article Fourth. The capital of the company is the amount of USD67,628,219.58, divided into 1,073,462,953 shares of common stock with no par value, subscribed and paid up in full by the shareholders:  (a) Minera Lobo Marte S.A. has subscribed and paid up 44,650,510 shares; (b) TVX Minera de Chile Limitada has subscribed and paid up 1 share, (c) MDO Holdings Ltd. has subscribed and paid up 514,406,221 shares, and (d) Macaines Mining Properties Ltd. has subscribed and paid up 514,406,221 shares.  The amount of the capital may be increased or reduced at shareholders’ meetings.  The shareholders are not responsible upon third parties of the Company’s obligations.

 

TITLE THIRD. Management.

 

Article Fifth. The company shall have a board of directors comprised of three regular members and three alternates.  The directors may be shareholders or not.  The appointment of directors, as well as their replacement or removal, may be freely made at any time by resolution of the shareholders, whether taken at shareholders’ meeting or by public deed annotated at the margin of the company’s registration at the Registry of Property and Shareholders’ Registry of the relevant Mining Registrar.

 

Article Sixth. Each regular director will have an alternate who will replace him/her definitely in case of vacating the directorship and temporarily in case of temporary absence or impediment.  Only in case of vacancy of the regular director and its corresponding alternate the board of directors will be renewed entirely at the next regular shareholders’ meeting to be held at the company and in the meantime the board directors may appoint a substitute.  The members of the board may be remunerated for the discharge of their duties, and the regular shareholder’s meeting is entitled to determine annually if they are going to be remunerated and the amount of their fees pursuant to the general rules.  Alternate directors will be entitled to attend the board meetings, but they only will be entitled to vote when replacing the relevant regular director.  The replacement of a regular director by an alternate director is an internal process of the company that will require no special formality whatsoever and it is not necessary to evidence upon third parties its applicability for the validity of the acts of an alternate director, being only enough for the efficacy their acts upon third parties the event of occurring the replacement.

 



 

Article Seventh. The board of directors shall elect a Chairman, who shall also be the Chairman of the company and the shareholders meeting.

 

Article Eighth. The board of directors shall meet periodically, on the date and at the time agreed by the board.  Notwithstanding the foregoing, the board may hold special meetings when summoned by its chairman or one or more directors.  Notices of special board meetings will be in writing and shall be sent to each director at least 5 business days in advance, by e-mail in case of directors domiciled aboard.  However, special meetings may be held without prior notice if all directors entitled to vote attend the meeting.  Board meetings will be held with the presence, and resolutions will be adopted with the favorable vote, of two directors entitled to vote.

 

Article Ninth. Deliberations and resolutions of the board of directors shall be memorialized in a special book of minutes, which shall be signed by the directors attending the meeting.  Board resolutions may be acted upon without being necessary to approve the minutes at the next meeting.  If any of the attending directors dies, refuses to sign the minutes or is howsoever prevented from signing, these circumstances shall be recorded at the end of the minutes and informed at the next regular or special shareholders’ meeting.  This situation shall not affect the validity of the resolutions taken.  The director that refuses to sign the minutes, shall give an explanation of his/her decision.  Resolutions taken by the board evidenced in a public deed or private instrument executed before a Notary by directors entitled to vote in a number required to take the relevant resolution(s) shall also be valid agreements.

 

Article Tenth. The board of directors shall be in charge of the senior management of the company and in particular it corresponds to the board to /1/ manage, represent the company and use the company’s name, for which purposes it is vested with broad management and disposition authorities, save for those matters that shall be approved by the shareholders’ meeting; /2/ decide on the acquisition, exploration, development and exploitation of the company’s mining concessions; /3/ appoint, remove and replace the chairman of the board and the chief executive officer of the company, respectively; /4/ summon the shareholders’ meetings; /5/ decide on the dividend distribution charged to the company’s profits; /6/ create reserve funds; /7/ grant to the chief executive officer the powers of attorney required to fulfill his/her duties assigned in article seventeenth; /8/ establish and modify the marketing policy applied by the company; /9/ agree on the annual operation, capital investment and exploration budgets of the company for each year; /10/ agree on the criteria that will govern the disposition of the mining concessions and the shares of the mining companies owned by the company; /11/ establish and modify the director’s fees and benefits policy; and /12/ others duties expressly conferred by these by-laws.

 

Article Eleventh. The Company shall have a Chief Executive Officer that shall be appointed by the Board and vested with all the authorities assigned by these by-laws and all those expressly granted by the Board of Directors.

 

Article Twelfth. The Chief Executive Officer shall be the Secretary of the Board of Directors and the Shareholders’ Meeting at every meeting held, unless the Board or the Shareholders Meeting, as applicable, appoints another person to discharge this duty at any given meeting.

 

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TITLE FOURTH. Shareholder’s Meetings.

 

Article Thirteenth. The shareholders shall meet annually at regular meetings, on the date determined by the board within the first four month of each year, with the purpose of become informed of the balance sheet, the inventory and the annual report corresponding to the previous year, to be presented by the Board to the consideration of the shareholders’ meeting.

 

Article Fourteenth. The shareholders shall meet at special meetings as required by the company’s needs.  The board shall call a special meeting on its own initiative or at the request of shareholders representing at least 40% of the company’s shares.  Only the matters included in the notice shall be discussed at the special meeting.  The following matters shall only be agreed at special shareholders meetings specially summoned for these purposes and held before a Notary Public:  the amendment of these by-laws; the increase or reduction of the company’s capital; the early dissolution of the company; the sale or transfer of all of its assets and liabilities; the transfer of exploitation mining concession; the change of the company’s type, its split-off or merger; furnishing of in rem or in personam guarantees to secure third parties’ obligations, save in case of subsidiaries, in which case the board’s approval shall suffice; and the determination of the quotas referred in article 195 of the Mining Code.

 

Article Fifteenth. Notice of regular and special shareholders’ meetings shall be made by an advertisement that the board or the arbitrator, as the case may be, shall instruct to publish twice in the Official Mining Bulletin of Santiago, within the 50 days before the meeting.  Meetings shall not be held before 15 days following the date of the publication of the last notice.  The notice shall indicate if it is a regular or special meeting, the place, date and time at which it will be held and its purpose(s).  Shareholders having their domiciles registered in the company will be also called by certified letter sent by the board of directors.  If such certified letter is not sent or received, the validity of the meeting or the resolutions taken therein shall not be affected.  Regular and special shareholder’s meetings may be held with no publication of advertisements or summons whatsoever when the meeting is attended by all the shareholders, attending in person or represented by duly empowered attorneys.  The meeting evidenced in public deed subscribed by the people representing all the shareholders of the company shall also be valid.

 

Article Sixteenth. Shareholders may attend general meetings in person or through legal representatives or attorneys.  Attorneys may be shareholders of the company or not.  The power of attorney shall be granted by public deed.

 

Article Seventeenth. Regular and special shareholders’ meetings shall be validly held with the presence of, and their resolutions shall be taken with the favorable vote of, the absolute majority of the shares of the company.  However, special shareholders meetings which purpose is to agree on the amendment of the by-laws, the increase or reduction of the company’s capital, the early dissolution of the company, the sale or transfer of all of its assets and liabilities, the transfer of exploitation mining concession, the change of the company’s type, its split-off or merger, the furnishing of in rem or in personam guarantees to secure third parties’ obligations, save in case of subsidiaries, in which case the board’s approval shall suffice, and the determination of the quotas referred in article 195 of the Mining Code, shall also be held with the presence of, and the resolutions agreed therein shall be taken by the favorable vote of, at least 2 / 3  of the company’s shares.

 

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Article Eighteenth. At shareholders’ meeting each share has one vote attached.

 

Article Nineteenth. Deliberations, voting and resolutions of the shareholders’ meetings shall be memorialized in a special book of minutes.  The minutes shall indicate the name of the people attending the meeting and the number of shares each of them holds or represents.  The minutes shall also contain a brief account of the observations or incidents occurred, the proposals submitted to the discussion of the meeting and the voting’s results.  Minutes shall be signed by the chairman and two shareholders or legal representatives or attorneys of the shareholders that have attended the meeting and appointed for such purposes by the meeting, or by all the persons present if less than three.  Minutes will be deemed finally approved upon their signature by all the aforementioned persons without any other formality, and thus the resolutions referred to therein may be acted upon without being necessary to wait for their approval by another meeting.

 

TITLE FIFTH. Balance Sheet and Distribution of Profits.

 

Article Twentieth. A balance sheet of the operations and corporate business, and an inventory of the assets and liabilities of the company shall be prepared as of December 31st of each year.  These documents, together an analytical annual report on the situation of the company during the last year, shall be submitted by the board of directors to the consideration of the regular shareholders’ meeting.  The annual report and inventory, and the backgrounds supporting them shall be available to the shareholders at the company’s offices during 15 days before the date of the regular meeting.

 

Article Twenty-first. The board of directors will apply the net benefits obtained by the company, evidenced by the balance sheet of the relevant year and prior deduction of legal reserves or those agreed by the board, to the distribution of profits to the shareholders in proportion to their shares and for the amounts agreed by the board.  The distribution will be made in minerals, pastes or money, as resolved by the board, without being applicable the last paragraph of article 194 of the Mining Code.

 

TITLE SIXTH. Dissolution and Winding Up.

 

Article Twenty-second. The Company shall terminate:  One/ upon the transfer, extinction or expiration of all the concessions owned by the company under any title; Two/ if all the shares into which the capital is divided are held by one person, Three/ upon the expiration of its term of duration, however, the shareholders gathered at special meeting may extend the term of duration of the company provided it is so agreed before the expiration of such term with the favorable vote of at least 2 / 3  of the shares of the company, and Four/ upon resolution adopted at a special shareholders’ meeting.

 

Article Twenty-third. Once the Company is dissolved by any cause, its liquidation, as applicable, shall be made by a 3-member Liquidation Commission, which members may be shareholders or not, appointed by the first shareholders’ meeting held after its dissolution.  Liquidators shall serve in office until the termination of the liquidation, notwithstanding the authority of the shareholders’ meeting to revoke their mandate and replace them.  Liquidators shall have the authorities determined by the general shareholders’ meeting.  Liquidators shall be remunerated for their duties as determined by the shareholders meeting.  During the liquidation,

 

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the rules of these by-laws shall remain in force and effect provided they are compatible with the company’s winding up status.  While the Liquidation Commission has not been appointed, safeguarding measures and others required shall be fulfilled by the last board.

 

TITLE SEVENTH. Arbitration.

 

Article Twenty-fourth. Differences of any nature among the Shareholders in their capacities, or among them and the Company or their managers, whether during the term of duration of the Company or its liquidation, shall be resolved by an arbitrator ex aequo et bono appointed by mutual agreement and, in case of failure to reach an agreement, by the courts of justice.  There shall be no remedy against the arbitrator’s resolutions.  If the arbitrator is appointed by the courts of justice, the appointed arbitrator shall be a lawyer acting or that has acted as judge or attorney member ( abogado integrante ) of the Court of Appeal of Santiago o the Supreme Court.

 

INTERIM ARTICLES

 

Interim Article First. The capital of the company is of USD67,628,219.58, divided into 1,073,462,953 shares of common stock with no par value, fully subscribed by the shareholders Minera Lobo Marte S.A., TVX Minera de Chile Limitada, MDO Holdings Ltd. and Macaines Mining Properties Ltd., in the proportions indicated in article fourth hereof, and paid-up in full by the referred shareholders with the portion of capital held by each of them at “Minera Santa Rosa S.A.”, before it has changed its type into a contractual mining company.

 

Interim Article Second. The first Board of Directors of the Company, that will hold office until the date in which the First Regular Shareholders’ Meeting is held where the standing board will be appointed, will be comprised of the following regular and alternate directors:  A) Regular directors:  Mr. Humberto Aquino, Mr. Andrés Jorge Verdugo Ramírez de Arellano and Mr. José Tomás Letelier Vial; B) Alternate directors:  Mr. Alistair Hugh Waddell, Ms. Renée Scholem Appel and Mr. Miguel Baeza Guiñez.  During the time that goes by between the date of this public deed and the appointment of the standing board of directors of the company by the next Regular Shareholders’ Meeting, the interim board will be vested with all the authorities and powers granted by these by-laws to the board, with no limitation whatsoever.  In particular, the interim board is entitled to appoint managers and sub-managers and grant them their relevant powers of attorney, as well as to grant limited powers of attorneys or delegate their authorities.

 

Interim Article Third. Legally speaking, Compañía Minera Mantos de Oro is the same legal entity than Minera Santa Rosa S.A.  Therefore, from a tax perspective, it is the same tax payer, which TIN is 78,928,380-K.  Its change of type from a corporation to a contractual mining company does not affect its continuity as a legal entity.

 

Interim Article Fourth. It is set on record that on the occasion of the merger of the Company with Compañía Minera Mantos de Oro S.A., approved at special shareholders’ meetings held and executed into public deed on December 2, 2011 at the Notarial Office of Santiago of Mr. José Musalem Saffie, “Compañía Minera Mantos de Oro” former “Compañía Minera Mantos de Oro S.A.” acquired 223 mining concessions, out of which 61 correspond to already established exploitation mining concessions, 71 correspond to exploitation mining concessions which establishment is being processed, 27 correspond to already established exploration mining

 

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concessions, and 74 correspond to exploration mining concessions which establishment is being processed.  Among the exploitation mining concessions already established we find the following:  Yar 1/7, which measure minutes is registered on page 371 No. 148 of the Registry of Property of the 1988 Mining Registrar of Copiapó.  The complete identification of all the exploration and exploitation concessions already established or processed owned by the Company is contained in the public deed also granted on December 2, 2011 at the Notarial Office of Santiago of Mr. José Musalem Saffie”.

 

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Exhibit 3.14

 

CERTIFICATE OF INCORPORATION
OF
ROUND MOUNTAIN GOLD CORPORATION

 

FIRST:                                                            This corporation is being organized and will exist under the laws of the State of Delaware.

 

SECOND:                                             The name of the corporation is Round Mountain Gold Corporation.

 

THIRD:                                                        The address of the corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware, U.S.A. The name of its registered agent at such address is The Corporation Trust Company.

 

FOURTH:                                            The nature of the business of the corporation and the purposes for which it is organized are:

 

4.1                                  To engage in any business and in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware, and to possess and employ all powers now or hereafter granted or available under the laws of the State of Delaware to such corporations.

 

FIFTH:                                                           The total number of shares which the corporation shall have authority to issue is 1,000 shares of Common Stock, $.01 par value per share.

 

SIXTH:                                                         The name and mailing address of the incorporator is: Margery Hinterman, 2600 Colorado National Building, 950 Seventeenth Street, Denver, Colorado 80202.

 

SEVENTH:                                       The powers of the incorporator shall terminate upon the filing of this Certificate of Incorporation in the office of the Secretary of State of the State of Delaware. The names and mailing addresses of the persons who are to serve as directors of the corporation until the first annual meeting of stockholders or until their successors are elected and qualified are:

 



 

Name

 

Mailing Address

 

 

 

Robert F. Calman

 

316 South 10th Street

 

 

Philadelphia, PA 19107

 

 

 

Richard C. Kraus

 

684 Romaniuk Road

 

 

Edmonton, Alberta T6R 1E5

 

 

 

John Zigarlick

 

407 Oak Street

 

 

Sherwood Park, Alberta T8A OW1

 

EIGHTH:                                                 The number of directors of the corporation shall be fixed from time to time in the manner provided in the bylaws and may be increased or decreased from time to time in the manner provided in the bylaws.

 

NINTH:                                                       The board of directors of the corporation is expressly authorized to make, alter or repeal the bylaws of the corporation.

 

TENTH:                                                     10.1                            The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement or otherwise actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo   contendere or its equivalent, shall not of itself create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful.

 

10.2                            The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the

 

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right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.

 

10.3                            To the extent that any person referred to in the preceding two subsections of this Section TENTH has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in such subsections, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

 

10.4                            Any indemnification under the first two subsections of this Section TENTH (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth therein. Such determination shall be made (a) by the board of directors by a majority vote of a quorum (as defined in the bylaws of the corporation) consisting of directors who were not parties to such action, suit or proceeding, or (b) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders.

 

10.5                            Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors of the corporation in the specific case upon

 

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receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized in this Section TENTH.

 

10.6                            The indemnification provided by this Section TENTH shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled, under any statute, bylaw, agreement, insurance policy, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

10.7                            By action of its board of directors, notwithstanding any interest of the directors in the action, the corporation shall have power to purchase and maintain insurance, in such amounts as the board of directors deems appropriate, on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not he is indemnified against such liability or expense under the provisions of this Section TENTH and whether or not the corporation would have the power or would be required to indemnify him against such liability under the provisions of this Section TENTH or of the General Corporation Law of the State of Delaware, now or hereafter in effect, or by any other applicable law.

 

10.8                            For the purposes of this Section TENTH, references to “the corporation” include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Section TENTH with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity.

 

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ELEVENTH:                                The corporation shall have authority, to the fullest extent now or hereafter permitted by the General Corporation Law of the State of Delaware, or by any other applicable law, to enter into any contract or transaction with one or more of its directors or officers, or with any corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, notwithstanding such relationships and notwithstanding the fact that the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction and notwithstanding the fact that his or their votes are counted for such purpose. Both common and interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee which authorizes the contract or transaction.

 

TWELFTH:                                   Election of directors need not be by written ballot except and to the extent provided in the bylaws of the corporation.

 

THIRTEENTH:                 Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs.  If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

 

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FOURTEENTH:             No director shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except as to liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law hereafter is amended to eliminate or limit further the liability of a director, then, in addition to the preceding sentence, the liability of each director of the Corporation shall be eliminated or limited to the fullest extent provided or permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of the Delaware General Corporation law shall not adversely affect any right or protection of a director under this Section FOURTEENTH, as in effect immediately prior to such repeal or modification, with respect to any liability that would have accrued, but for this Section FOURTEENTH, prior to such repeal or modification.

 

Executed this 10th day of August, 1993.

 

 

 

 

 

 

By:

/s/ Richard C. Kraus

 

 

Richard C. Kraus, President

 

 

 

 

 

 

Attest:

/s/ Robert L. Leclerc

 

 

Robert L. Leclerc, Secretary

 

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Exhibit 3.15

 

AMENDED AND RESTATED

 

BYLAWS

 

OF

 

ROUND MOUNTAIN GOLD CORPORATION

 

ARTICLE I

 

Offices

 

Section 1.                                             Business Offices . The principal office of the corporation shall be designated from time to time by the corporation and may be within or outside of Delaware. The corporation may have such other offices, either within or outside Delaware, as the board of directors may designate or as the business of the corporation may require from time to time.

 

Section 2.                                             Registered Office . The registered office of the corporation, required by the Delaware General Corporation Law to be maintained in Delaware, may be but is not necessarily identical with the principal office if in Delaware, and the address of the registered office may be changed from time to time by the board of directors.

 

ARTICLE II

 

Shareholders

 

Section 1.                                             Annual Meetings . An annual meeting of the shareholders shall be held on the first Monday in the month of May in each year, or on such other date as may be determined by the board of directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated in these bylaws for any annual meeting of the shareholders, or at any adjournment of such meeting, the board of directors shall cause the election to be held at a meeting of the shareholders as soon after such annual meeting (as the same may be adjourned) as is convenient. Failure to hold an annual meeting as required by these bylaws shall not invalidate any action taken by the board of directors or officers of the corporation.

 

Section 2.                                             Special Meetings . Special meetings of the shareholders for any purpose or purposes, unless otherwise prescribed by statute, may be called by the president or the board of directors and shall be called by the president at the request of the holders of not less than one-tenth of all the outstanding shares of the corporation entitled to vote at the meeting.

 

Section 3.                                             Place of Meetings . Each meeting of the shareholders shall be held at such place, either within or outside Delaware, as may be designated in the notice of meeting. If

 



 

no place is designated in any such notice, the relevant meeting shall be held at the registered office of the corporation in Delaware.

 

Section 4.                                             Notice of Meetings . Except as otherwise prescribed by statute, written notice of each meeting of the shareholders stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given 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 vice president or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, addressed to each shareholder at such shareholder’s address as it appears on the stock transfer books of the corporation, with postage prepaid. If properly requested by a person other than the corporation properly calling a meeting, the secretary shall give notice of such meeting at corporate expense. Any shareholder may waive notice of any meeting. The attendance of a shareholder at a meeting (or participation by a shareholder in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, unless the shareholder objects at the beginning of the meeting because of lack of notice or defective notice.

 

Section 5.                                             Fixing of Record Date . The board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days, and in case of a meeting of the shareholders, not less than ten days, prior to the date on which the particular action requiring such determination of shareholders is to be taken. The record date may not be more than ten days after the date on which the board of directors adopts a resolution fixing a new date for actions by written consent. If no record date is fixed by the board of directors, the record date shall be fixed as provided by statute. When a determination of shareholders entitled to vote at any meeting of the shareholders has been made as provided in this Section, such determination shall apply to any adjournment of such meeting, unless such adjournment lasts for more than 120 days from the date of the original meeting, in which event a new record date must be established.

 

Section 6.                                             Voting List . The officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete list of the shareholders who are entitled to be given notice of a meeting of the shareholders, arranged in alphabetical order, with the address of and the number of shares held by each. The shareholder list must be available for inspection by any shareholder, beginning on the earlier of ten days before the meeting for which the list was prepared or two business days after notice of the meeting is given and continuing throughout the meeting and any meeting adjournments. The original stock transfer books shall be prima facie evidence as to the shareholders who are entitled to examine such list or transfer books or to vote at any meeting of the shareholders. Failure to comply with the requirements of this Section shall not affect the validity of any action taken at such meeting.

 

Section 7.                                             Proxies . At each meeting of the shareholders, a shareholder may vote in person or by proxy executed in writing by the shareholder or by such shareholder’s duly authorized attorney-in-fact, or by a written statement of the appointment transmitted by telegram, teletype or other electronic transmission along with written evidence from which it can be determined that the shareholder transmitted or authorized the transmission of the appointment.

 

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Such proxy shall be filed with the secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after eleven months from the date of such proxy’s execution, unless otherwise provided in the proxy.

 

Section 8.                                             Quorum . Except as otherwise required by statute, a majority of the outstanding shares of the corporation entitled to vote on a matter, represented in person or by proxy, shall constitute a quorum for action on such matter at each meeting of the shareholders. If a quorum exists, a matter will be approved if the number of votes cast in favor of such matter exceeds the number of votes cast against such matter except in the case of the election of directors. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting without further notice other than an announcement at the meeting of the new date, time and place; provided, however, that if the adjournment is for more than thirty days, or if after the adjournment a new record date for the adjourned meeting is or must be fixed by statute or under these bylaws, notice of the adjourned meeting must be given to shareholders of record who are entitled to vote at the meeting. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

 

Section 9.                                             Voting of Shares . Except as otherwise provided by law, the certificate of incorporation or these bylaws, each outstanding share of record is entitled to vote on each matter submitted to a vote of the shareholders either at a meeting of the shareholders or pursuant to Section 11 of this Article II.

 

Section 10.                                       Voting of Shares by Certain Holders . Shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation is held by the corporation, may not be voted at any meeting or counted in determining the total number of outstanding shares at any given time. Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine. Shares held by an administrator, executor, guardian or conservator may be voted by such person, either in person or by proxy, without a transfer of such shares into such person’s name. Shares standing in the name of a trustee may be voted by such trustee, either in person or by proxy, but no trustee shall be entitled to vote shares held by such trustee without a transfer of such shares into such trustee’s name. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer of such shares into such receiver’s name if authority to do so is contained in an appropriate order of the court by which such receiver was appointed.

 

Section 11.                                       Action Without a Meeting . Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, the meeting and vote of stockholders may be dispensed with if one or more consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and delivered to the corporation by delivery to its registered office in Delaware, its principal place of

 

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business or an officer or agent of the corporation having custody of the book in which the proceedings of minutes of meetings of stockholders are recorded. If, pursuant to this provision, corporate action is taken without a meeting by less than unanimous written consent, (i) prompt notice of the taking of such action shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date therefor had been the date consents signed by a sufficient number of holders to take the action were delivered to the corporation as required by statute and these bylaws, and (ii) such action may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action.

 

ARTICLE III

 

Board of Directors

 

Section 1.                                             General Powers . The business and affairs of the corporation shall be managed under the direction of the corporation’s board of directors, except as otherwise provided in the Delaware General Corporation Law, the certificate of incorporation or these bylaws.

 

Section 2.                                             Number, Tenure and Qualifications . The number of directors shall be determined from time to time by a resolution of the board of directors. Directors shall be elected at each annual meeting of the shareholders. Each director shall hold office until the next annual meeting of the shareholders and thereafter until such director’s successor shall have been elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be residents of Delaware or shareholders of the corporation. The directors may elect from their number a director to serve as chairman of the board of directors, for such term and with such authority as may be granted by the board of directors.

 

Section 3.                                             Vacancies; Removal . Any director may resign at any time by giving written notice through the president or the secretary. A director’s resignation shall take effect on receipt of such notice unless another time is specified in such notice, and unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make such resignation effective. Any vacancy occurring on the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors, or by the shareholders. A director elected to fill a vacancy shall be elected for the unexpired term of such director’s predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall be filled by the affirmative vote of a majority of the directors then in office or by an election at a meeting of the shareholders called for that purpose, and a director so chosen shall hold office for the term specified in Section 2 of this Article III. At a meeting called expressly for that purpose, one or more directors or the entire board of directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors. Any directorship to be filled by reason of the removal of one or more directors by the shareholders or for any other reason may be filled by election by the shareholders at the meeting at which the director or directors are removed.

 

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Section 4.                                             Regular Meetings . A regular meeting of the board of directors shall be held immediately after and at the same place as the annual meeting of the shareholders, or as soon as practicable after the annual meeting of the shareholders, at the time and place, either within or outside Delaware, as determined by the board of directors, for the purpose of electing officers and for the transaction of such other business as may come before the meeting. The board of directors may provide by resolution the time and place, either within or outside Delaware, for the holding of additional regular meetings.

 

Section 5.                                             Special Meetings . Special meetings of the board of directors may be called by or at the request of the president or any two directors. The person or persons authorized to call special meetings of the board of directors may fix any place as the place, either within or outside Delaware, for holding any special meeting of the board of directors called by such person(s).

 

Section 6.                                             Notice . Notice of each meeting of the board of directors stating the place, day and hour of the meeting shall be given to each director at least ten days prior to such meeting by the mailing of written notice, or at least five days prior to such meeting by personal delivery of written notice or by telephonic or facsimile notice, except that in the case of a meeting to be held pursuant to Section 11 of this Article III, telephone notice may be given one day prior to such meeting. (The method of notice need not be the same to each director.) Notice shall be deemed to be given, if mailed, on the earlier of the date it is received or five days after it is deposited in the United States mail, with postage prepaid, addressed to the director at such director’s business or residence address; if personally delivered, when delivered to the director; if delivered via facsimile, upon confirmation of receipt by the receiving facsimile machine; and, if telephoned, when communicated to the director. Any director may waive notice of any meeting. The attendance of a director at a meeting (or participation by a director in a meeting by means of conference telephone or similar communications equipment) shall constitute a waiver of notice of such meeting, except where a director objects to the holding of the meeting at the beginning of the meeting or promptly on such director’s arrival. Neither the business to be transacted at, nor the purpose of, any meeting of the board of directors need be specified in the notice or waiver of notice of such meeting unless required by statute.

 

Section 7.                                             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 at the meeting unless the director objects at the beginning of the meeting, or promptly on arrival, to holding the meeting or transacting business at the meeting and does not thereafter vote for or consent to any action taken at the meeting, or the director contemporaneously requests his dissent or abstention as to any specific action to be entered into the minutes of the meeting, or the director causes written notice of a dissent or abstention as to a specific action to be received by the presiding officer of the meeting before adjournment of the meeting or by the corporation promptly after adjournment of the meeting.

 

Section 8.                                             Quorum and Voting . A majority of the number of directors in office immediately before the meeting begins shall constitute a quorum for the transaction of business at any meeting of the board of directors, and the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. If less

 

5



 

than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than an announcement at the meeting until a quorum shall be present.

 

Section 9.                                             Fees and Compensation . Directors may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the board of directors. This section shall not be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee or otherwise and receiving compensation for those services.

 

Section 10.                                       Executive and Other Committees . By one or more resolutions adopted by the majority of the board of directors, the board of directors may designate from among the members of the board of directors an executive committee and one or more other committees consisting of one or more directors, each of which (to the extent provided in the resolution establishing such committee) shall have and may exercise all of the authority of the board of directors; provided, however, that no committee shall have power or authority in reference to the following matters: (i) approving, adopting or recommending to the stockholders any action or matter (other than the election or removal of directors) expressly required by statute to be submitted to stockholders for approval, or (ii) adopting, amending or repealing any portion of these by-laws.

 

Section 11.                                       Meetings by Telephone . Members of the board of directors or any committee of the board of directors may participate in a meeting of the board of directors or committee by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Such participation shall constitute presence in person at the meeting.

 

Section 12.                                       Action Without a Meeting . Any action required or permitted to be taken at a meeting of the directors or any committee of the board of directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors or committee members entitled to vote with respect to the subject matter concerned.

 

ARTICLE IV

 

Officers

 

Section 1.                                             Number and Qualifications . The officers of the corporation shall be a president, a secretary, and a treasurer. The board of directors may also elect or appoint such other officers, assistant officers and agents, including vice presidents, assistant secretaries, and assistant treasurers, as the board of directors may consider necessary. Any two or more offices may be held by the same person.

 

Section 2.                                             Election and Term of Office . The officers of the corporation shall be appointed by the board of directors annually at the first meeting of the board of directors held after each annual meeting of the shareholders. If the appointment of officers shall not occur at such meeting, such appointment shall be held as soon after such annual meeting as is convenient.

 

6



 

Each officer shall hold office until such officer’s successor is duly appointed or until such officer’s earlier death, resignation or removal.

 

Section 3.                                             Compensation . The compensation of the officers shall be determined from time to time by the board of directors, and no officer shall be prevented from receiving any compensation by reason of the fact that such officer is also a director of the corporation.

 

Section 4.                                             Removal . Any officer may be removed by the board of directors or by a committee, if any, if so authorized by the board of directors, at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not in itself create contract rights.

 

Section 5.                                             Vacancies . Any officer may resign at any time, subject to any rights or obligations under any existing contracts between the officer and the corporation, by giving written notice to the president or to the board of directors. An officer’s resignation shall take effect at the time specified in such resignation, and the acceptance of such resignation shall not be necessary to make such resignation effective. A vacancy in any office, however occurring, may be filled by the board of directors for the unexpired portion of the term.

 

Section 6.                                             Authority and Duties of Officers . The officers of the corporation shall have the authority and shall exercise the powers and perform the duties specified below and as may be additionally specified by the president, the board of directors or these bylaws, except that in any event, each officer shall exercise such powers and perform such duties as may be required by law:

 

(a)                                   President . The president shall be the chief executive officer of the corporation and shall, subject to the direction and supervision of the board of directors: (i) have general and active control of the affairs and business of the corporation and general supervision of its officers, agents and employees; (ii) preside, in the absence of the chairman of the board, at all meetings of the shareholders and the board of directors, (iii) see that all orders and resolutions of the board of directors are carried into effect; and (iv) perform all other duties incident to the office of president and as from time to time may be assigned to the president by the board of directors.

 

(b)                                  Vice Presidents . The vice presidents shall assist the president and shall perform such duties as may be assigned by the president or by the board of directors. Such officers shall, at the request of the president, or in the absence of the president, or the event of the inability or refusal by the president to act, perform the duties of the president and when so acting, shall have all the powers of and be subject to all the restrictions on the president.

 

(c)                                   Secretary . The secretary shall: (i) keep the minutes of the proceedings of the shareholders, the board of directors and any committees of the board of directors; (ii) keep a record of all actions taken by the shareholders, the board of directors and any committees of the board of directors without a meeting; (iii) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (iv) keep a record of all waivers of notices of meetings of the shareholders, the board of directors and any

 

7



 

committees of the board of directors; (v) be custodian of the corporate records and of the seal of the corporation; (vi) keep at the corporation’s registered office or principal place of business within or outside Delaware a record containing the names and addresses of all shareholders and the number and class of shares held by each, unless such a record shall be kept at the office of the corporation’s transfer agent or registrar; (vii) have general charge of the stock transfer books of the corporation, unless the corporation has a transfer agent; and (viii) perform all other duties incident to the office of secretary and such other duties as from time to time may be assigned by the board of directors or the president.

 

(d)                                  Treasurer . The treasurer shall: (i) be the principal financial officer of the corporation and have the care and custody of all of the corporation’s funds, securities, evidences of indebtedness and other personal property and deposit the same in accordance with the instructions of the board of directors; (ii) receive and give receipts for monies paid into or on account of the corporation and pay out of the funds on hand all bills, payrolls, and other just debts of the corporation of whatever nature on maturity; (iii) unless there is a controller, be the principal accounting officer of the corporation and as such prescribe and maintain the methods and systems of accounting to be followed, keep complete books and records of account, prepare and file all local, state and federal tax returns, prescribe and maintain an adequate system of internal audit, and prepare and furnish to the president and the board of directors statements of account showing the financial position of the corporation and the results of the corporation’s operations; (iv) on request of the board of directors, make such reports to the board of directors as may be required at any time; and (v) perform all other duties incident to the office of treasurer and such other duties as from time to time may be assigned by the board of directors or the president. Assistant treasurers, if any, shall have the same powers and duties, subject to supervision by the treasurer. In the absence of a treasurer, the secretary shall perform the foregoing functions of the treasurer.

 

Section 7.                                             Surety Bonds . The board of directors may require any officer of the corporation to execute to the corporation a bond in such sums and with such sureties as shall be satisfactory to the board of directors, conditioned on the faithful performance of such officer’s duties and for the restoration to the corporation of all books, papers, vouchers, money and other property of whatever kind belonging to the corporation in the possession or under the control of such officer.

 

ARTICLE V

 

Shares

 

Section 1.                                             Issuance of Shares . The issuance or sale by the corporation of any shares of the corporation’s authorized capital stock of any class shall be made only on authorization by the board of directors.

 

Section 2.                                             Certificates . The shares of the corporation shall be represented by certificates unless otherwise provided by the board of directors. The certificates shall be in such form consistent with law as shall be prescribed by the board of directors. The certificates representing shares of stock of the corporation shall be consecutively numbered. The certificates

 

8



 

shall be signed by two officers as designated by the board of directors, or in the absence of such designation, any two of the following officers: the president, the secretary, or the treasurer.

 

Section 3.                                             Consideration for Shares . Shares shall be issued for such consideration as may be determined to be adequate by the board of directors. In the absence of fraud in the transaction, the judgment of the board of directors as to the adequacy of the consideration received for shares shall be conclusive.

 

Section 4.                                             Lost Certificates . In case of the alleged loss, destruction or mutilation of a certificate of stock, the board of directors may direct the issuance of a new certificate in lieu of such certificate on such terms and conditions in conformity with law as the board of directors may prescribe. The board of directors may, in the discretion of the board of directors, require a bond in such form and amount and with such surety as the board of directors may determine or such other assurance or security as permitted by applicable law before issuing a new certificate.

 

Section 5.                                             Transfer of Shares . On surrender to the corporation or to a transfer agent of the corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer and otherwise satisfying requirements permitted to be imposed by the corporation under applicable law, it shall be the duty of the corporation to issue a new certificate to the person entitled to such new certificate and to cancel the old certificate. Every such transfer of stock shall be entered on the stock transfer books of the corporation.

 

Section 6.                                             Holders of Record . The corporation shall be entitled to treat the holder of record of any share as the holder-in-fact of such share and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not the corporation shall have express or other notice of such claim or interest, except as may be required by the laws of Delaware.

 

Section 7.                                             Transfer Agents, Registrars and Paying Agents . The board of directors may, in the discretion of the board of directors, appoint one or more transfer agents or registrars for making payment on any class of stock, bond, debenture or other security of the corporation. Such agents and registrars may be located either within or outside Delaware. They shall have such rights and duties and shall be entitled to such compensation as may be agreed.

 

ARTICLE VI

 

Indemnification

 

Section 1.                                             The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid

 

9



 

in settlement or otherwise actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful.

 

Section 2.                                             The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.

 

Section 3.                                             To the extent that any person referred to in the preceding two subsections of this Article VI has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in such subsections, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

 

Section 4.                                             Any indemnification under the first two subsections of this Article VI (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth therein. Such determination shall be made (a) by the board of directors by a majority vote of a quorum (as defined in the bylaws of the corporation) consisting of directors who were not parties to such action, suit or proceeding, or (b) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders.

 

Section 5.                                             Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors of the corporation in the specific case upon

 

10



 

receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation as authorized in this Article VI.

 

Section 6.                                             The indemnification provided by this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled, under any statute, bylaw, agreement, insurance policy, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

Section 7.                                             By action of its board of directors, notwithstanding any interests of the directors in the action, the corporation shall have power to purchase and maintain insurance, in such amounts as the board of directors deems appropriate, on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not he is indemnified against such liability or expense under the provisions of this Article VI and whether or not the corporation would have the power or would be required to indemnify him against such liability under the provisions of this Article VI or of the Delaware General Corporation Law, now or hereafter in effect, or by any other applicable law.

 

Section 8.                                             For the purposes of this Article VI, references to “the corporation” include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity.

 

ARTICLE VII

 

Miscellaneous

 

Section 1.                                             Waivers of Notice . Whenever notice is required by law, the certificate of incorporation or these bylaws, a waiver of such notice in writing signed by the director, shareholder, or other person entitled to said notice, whether before or after the time stated in such waiver or, subject to Section 6 of Article III, such person’s appearance at such meeting in person or (in the case of a shareholder’s meeting) by proxy, shall be equivalent to such notice.

 

Section 2.                                             Voting of Securities by the Corporation . Unless otherwise provided by resolution of the board of directors, the president shall, on behalf of the corporation, attend in person or by substitute appointed by the president, or shall execute written instruments

 

11



 

appointing a proxy or proxies, all meetings of the shareholders of any other corporation, association or other entity in which the corporation holds any stock or other securities and may execute written waivers of notice with respect to any such meetings. At all such meetings and otherwise, the president, in person or by substitute or proxy as aforesaid, may vote the stock or other securities so held by the corporation and may execute written consents or any other instruments with respect to such stock or securities and may exercise any and all rights and powers incident to the ownership of said stock or securities; subject, however, to the instructions, if any, of the board of directors.

 

Section 3.                                             Books and Records . The corporation shall keep correct and complete books and records of account, shall keep minutes of the proceedings of the meetings of the corporation’s shareholders and board of directors and shall keep all other records required by law. The corporation shall also keep at the corporation’s registered office or principal place of business or at the office of the corporation’s transfer agent or registrar a record of the corporation’s shareholders, giving the name and addresses of all shareholders and the number of shares held by each. Any person who is a shareholder of record, on written demand under oath stating the purpose of such examination, shall have the right to examine and make abstracts from, in person or by agent or attorney, at any reasonable time and for a purpose reasonably related to such person’s interests as a shareholder, the corporation’s books and records of account, minutes and record of shareholders.

 

Section 4.                                             Instruments . The board of directors may authorize any officer, agent or agents to enter into any contract or execute and deliver any instrument in the name of, and on behalf of, the corporation, and such authority may be general or confined to specific instances.

 

Section 5.                                             Amendments . Subject to repeal or change by action of the shareholders, the power to alter, amend or repeal these bylaws and adopt new bylaws shall be vested in the board of directors.

 

Section 6.                                             Interpretation . These bylaws and each provision of these bylaws are subject to applicable statutory law and to the certificate of incorporation.

 

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Exhibit 4.1

 

[Form of Note]

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

KINROSS GOLD CORPORATION

 

3.625% Senior Notes due 2016

 

 

CUSIP No. [ · ]

 

 

No. [ · ]

 

$[ · ]

 

Kinross Gold Corporation, a corporation duly organized and existing under the laws of the Province of Ontario, Canada (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ · ], on September 1, 2016, and to pay interest and Additional Amounts (if any) thereon from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on March 1 and September 1 in each year, at the rate of 3.625% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), until the principal hereof is paid or made available for payment. The interest and Additional Amounts (if any) so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the February 15 or August 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest and Additional Amounts (if any) not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

Payment of the principal of (and premium, if any) and any such interest on, and any Additional Amounts with respect to, this Security shall be made at the office or agency of the Company maintained for that purpose in The Borough of Manhattan in the City of New York, in such coin or currency of the United States of as at the time of payment is legal tender for payment of public and private debts; provided , however , that at the option of the Company payment of interest and Additional Amounts (if any) may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.

 



 

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 



 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

 

 

 

KINROSS GOLD CORPORATION

 

 

 

 

 

By

 

 

 

 

 

 

 

 

By

 

 



 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

Dated:

 

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

As Trustee

 

 

 

By

 

,

 

Authorized Signatory

 



 

Schedule A

 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Global Security have been made:

 

Date

 

Amount of Decrease
in Principal Amount
of this Global
Security

 

Amount of Increase
in Principal Amount
of this Global
Security

 

Principal Amount of
this Global Security
Following Such
Decrease or Increase

 

Signature of
Authorized Signatory
of Trustee or
Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

Reverse of Security

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of August 22, 2011 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

The Securities of this series are subject to redemption upon not less than 30 days’ notice, at any time, as a whole or in part, at the election of the Company, at a Redemption Price equal to the greater of (i) 100% of the principal amount called for redemption and (ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360 day calendar year consisting of twelve 30-day months) at the Treasury Rate plus 40 basis points, as calculated by the Independent Investment Banker upon whom the Company, the Trustee and any paying agent shall be entitled to rely conclusively for such purposes, plus, in each case, accrued interest thereon to, but not including, the date of redemption, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.

 

The provisions of the Indenture requiring the Company to make a repurchase offer, if a Change of Control Repurchase Event occurs, apply to this Security.

 

The Indenture contains provisions granting the Company the right to redeem this Security at any time if certain adverse changes occur with respect to the tax treatment of this Security.

 

In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture contains provisions requiring the Company to pay certain Additional Amounts in respect of this Security in the event it is required to withhold certain Taxes by certain governmental authorities.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding

 



 

of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities with respect to which an Event of Default has occurred at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities with respect to which an Event of Default has occurred at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on, and any Additional Amounts with respect to, this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium interest on and any Additional Amounts with respect to, this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

 



 

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 




Exhibit 4.2

 

[Form of Note]

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

KINROSS GOLD CORPORATION

 

5.125% Senior Notes due 2021

 

 

CUSIP No. [ · ]

 

 

No. [ · ]

 

$[ · ]

 

Kinross Gold Corporation, a corporation duly organized and existing under the laws of the Province of Ontario, Canada (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ · ], on September 1, 2021, and to pay interest and Additional Amounts (if any) thereon from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on March 1 and September 1 in each year, at the rate of 5.125% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), until the principal hereof is paid or made available for payment. The interest and Additional Amounts (if any) so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the February 15 or August 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest and Additional Amounts (if any) not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

Payment of the principal of (and premium, if any) and any such interest on, and any Additional Amounts with respect to, this Security shall be made at the office or agency of the Company maintained for that purpose in The Borough of Manhattan in the City of New York, in such coin or currency of the United States of as at the time of payment is legal tender for payment of public and private debts; provided , however , that at the option of the Company payment of interest and Additional Amounts (if

 



 

any) may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.

 

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 



 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

 

 

KINROSS GOLD CORPORATION

 

 

 

 

 

By

 

 

 

 

 

 

 

 

By

 

 



 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

Dated:

 

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

As Trustee

 

 

 

 

By

 

,

 

Authorized Signatory

 



 

Schedule A

 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Global Security have been made:

 

Date

 

Amount of Decrease
in Principal Amount
of this Global
Security

 

Amount of Increase
in Principal Amount
of this Global
Security

 

Principal Amount of
this Global Security
Following Such
Decrease or Increase

 

Signature of
Authorized Signatory
of Trustee or
Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

Reverse of Security

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of August 22, 2011 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

The Securities of this series are subject to redemption upon not less than 30 days’ notice, at any time, as a whole or in part, at the election of the Company, at the following Redemption Prices: If redeemed prior to June 1, 2021, at a Redemption Price equal to the greater of (i) 100% of the principal amount called for redemption and (ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360 day calendar year consisting of twelve 30-day months) at the Treasury Rate plus 45 basis points, as calculated by the Independent Investment Banker upon whom the Company, the Trustee and any paying agent shall be entitled to rely conclusively for such purposes, and, if on or after such date, the Securities of this series are redeemable in whole, but not in part, at a Redemption Price equal to 100% of the principal amount, plus, in each case, accrued interest thereon to, but not including, the date of redemption, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.

 

The provisions of the Indenture requiring the Company to make a repurchase offer, if a Change of Control Repurchase Event occurs, apply to this Security.

 

The Indenture contains provisions granting the Company the right to redeem this Security at any time if certain adverse changes occur with respect to the tax treatment of this Security.

 

In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture contains provisions requiring the Company to pay certain Additional Amounts in respect of this Security in the event it is required to withhold certain Taxes by certain governmental authorities.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the

 



 

Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities with respect to which an Event of Default has occurred at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities with respect to which an Event of Default has occurred at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on, and any Additional Amounts with respect to, this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium interest on  and any Additional Amounts with respect to, this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is

 



 

registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

 

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 




Exhibit 4.3

 

[Form of Note]

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

KINROSS GOLD CORPORATION

 

6.875% Senior Notes due 2041

 

 

CUSIP No. [ · ]

 

 

No. [ · ]

 

$[ · ]

 

Kinross Gold Corporation, a corporation duly organized and existing under the laws of the Province of Ontario, Canada (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede &. Co., or registered assigns, the principal sum of [ · ], on September 1, 2041, and to pay interest and Additional Amounts (if any) thereon from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on March 1 and September 1 in each year, at the rate of 6.875% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), until the principal hereof is paid or made available for payment. The interest and Additional Amounts (if any) so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the February 15 or August 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest and Additional Amounts (if any) not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

Payment of the principal of (and premium, if any) and any such interest on, and any Additional Amounts with respect to, this Security shall be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan in the City of New York, in such coin or currency of the United States of as at the time of payment is legal tender for payment of public and private debts;

 



 

provided , however , that at the option of the Company payment of interest and Additional Amounts (if any) may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.

 

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 



 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

 

 

KINROSS GOLD CORPORATION

 

 

 

 

 

By

 

 

 

 

 

 

 

 

 

 

 

By

 

 



 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

Dated:

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

As Trustee

 

 

 

By

 

,

 

Authorized Signatory

 



 

Schedule A

 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Global Security have been made:

 

Date

 

Amount of Decrease
in Principal Amount
of this Global
Security

 

Amount of Increase
in Principal Amount
of this Global
Security

 

Principal Amount of
this Global Security
Following Such
Decrease or Increase

 

Signature of
Authorized Signatory
of Trustee or
Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

Reverse of Security

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of August 22, 2011 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

The Securities of this series are subject to redemption upon not less than 30 days’ notice, at any time, as a whole or in part, at the election of the Company, at the following Redemption Prices: If redeemed prior to March 1, 2041, at a Redemption Price equal to the greater of (i) 100% of the principal amount called for redemption and (ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360 day calendar year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points, as calculated by the Independent Investment Banker upon whom the Company, the Trustee and any paying agent shall be entitled to rely conclusively for such purposes, and, if on or after such date, the Securities of this series are redeemable in whole, but not in part, at a Redemption Price equal to 100% of the principal amount, plus, in each case, accrued interest thereon to, but not including, the date of redemption, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.

 

The provisions of the Indenture requiring the Company to make a repurchase offer, if a Change of Control Repurchase Event occurs, apply to this Security.

 

The Indenture contains provisions granting the Company the right to redeem this Security at any time if certain adverse changes occur with respect to the tax treatment of this Security.

 

In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture contains provisions requiring the Company to pay certain Additional Amounts in respect of this Security in the event it is required to withhold certain Taxes by certain governmental authorities.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the

 



 

Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities with respect to which an Event of Default has occurred at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities with respect to which an Event of Default has occurred at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on, and any Additional Amounts with respect to, this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium interest on and any Additional Amounts with respect to, this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is

 



 

registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

 

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 




Exhibit 4.4

 

EXECUTION VERSION

 

 

KINROSS GOLD CORPORATION

 

As Issuer

 

AURELIAN RESOURCES INC., BGO (BERMUDA) LTD.

KINROSS BRASIL MINERAÇAO S.A.

KINROSS GOLD U.S.A. INC.

CROWN RESOURCES CORPORATION

FAIRBANKS GOLD MINING, INC.

MELBA CREEK MINING, INC.

COMPANIA MINERA MANTOS DE ORO

COMPANIA MlNERA MARICUNGA

RED BACK MINING MAURITANIA NO. 2 LIMITED

RED BACK MINING INC.

ROUND MOUNTAIN GOLD CORPORATION

 

As Guarantors

 

AND

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

As Trustee

 


 

Indenture

 

Providing for the Issuance of Securities in Series

 

Dated as of August 22, 2011

 


 

 



 

TABLE OF CONTENTS

 


 

 

PAGE

 

 

PARTIES

1

 

 

RECITALS OF THE COMPANY

1

 

ARTICLE ONE

 

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

 

SECTION 101.

Definitions

1

 

Act

2

 

Additional Amounts

2

 

Additional Interest

2

 

Affiliate; control

2

 

Agent Members

2

 

Authenticating Agent

2

 

Bankruptcy Law

2

 

Board of Directors

2

 

Board Resolution

2

 

Business Day

2

 

Change of Control

3

 

Change of Control Repurchase Event

3

 

Commission

4

 

Company

4

 

Comparable Treasury Issue

4

 

Comparable Treasury Price

4

 

Company Request; Company Order

4

 

Consolidated Net Tangible Assets

4

 

Continuing Director

4

 

Corporate Trust Office

4

 

corporation

5

 

Covenant Defeasance

5

 

Credit Agreement

5

 

Credit Agreement Guarantor

5

 

Defaulted Interest

5

 

Defeasance

5

 

Depositary

5

 

Dollars

5

 

Event of Default

5

 

Exchange Act

5

 

Exchange Securities

5

 

Expiration Date

5

 

Funded Debt

5

 

GAAP

5

 



 

 

 

PAGE

 

 

 

 

Global Security

6

 

Government Obligations

6

 

Guarantee

6

 

Guaranteed Securities

6

 

Company

6

 

Holder

6

 

IASB

6

 

IFRS

6

 

Indebtedness

6

 

Indenture

6

 

Independent Investment Banker

6

 

Interest Payment Date

7

 

Investment Company Act

7

 

Investment Grade

7

 

Lien

7

 

Maturity

7

 

Moody’s

7

 

Non U.S. Guarantor

7

 

Notice of Default

7

 

Officer

7

 

Officers’ Certificate

7

 

Opinion of Counsel

7

 

Outstanding

7

 

Paying Agent

8

 

Person

9

 

Place of Payment

9

 

Predecessor Security

9

 

Principal Property

9

 

Rating Agency

9

 

Redemption Date

9

 

Redemption Price

9

 

Reference Treasury Dealer Quotations

9

 

Reference Treasury Dealer

10

 

Regular Record Date

10

 

Regulation S Global Securities

10

 

Relevant Taxing Jurisdiction

10

 

Responsible Officer

10

 

Restricted Global Securities

10

 

Restricted Subsidiary

10

 

Securities

10

 

Securities Act

10

 

Security Custodian

10

 

Security Register; Security Registrar

10

 

Special Record Date

10

 

S&P

11

 

Stated Maturity

11

 

Subsidiary

11

 

voting shares

11

 

ii



 

 

 

PAGE

 

 

 

 

Tax Act

11

 

Taxes

11

 

Trigger Period

11

 

Treasury Rate

11

 

Trust Indenture Act

11

 

Trustee

11

 

USA PATRIOT ACT

11

 

Vice President

12

 

Voting Stock

12

SECTION 102.

Compliance Certificates and Opinions

12

SECTION 103.

Form of Documents Delivered to Trustee

12

SECTION 104.

Acts of Holders; Record Dates

13

SECTION 105.

Notices, Etc., to Trustee and Company

15

SECTION 106.

Notice to Holders; Waiver

15

SECTION 107.

Conflict with Trust Indenture Act

16

SECTION 108.

Effect of Headings and Table of Contents

16

SECTION 109.

Successors and Assigns

16

SECTION 110.

Separability Clause

16

SECTION 111.

Benefits of Indenture

16

SECTION 112.

Governing Law

16

SECTION 113.

Legal Holidays

16

SECTION 114.

USA PATRIOT Act

17

SECTION 115.

Waiver of Jury Trial

17

SECTION 116.

Force Majeure

17

 

ARTICLE TWO

 

SECURITY FORMS

 

SECTION 201.

Forms Generally

17

SECTION 202.

Form of Face of Security

18

SECTION 203.

Form of Reverse of Security

21

SECTION 204.

Forms of Restrictive Legends

25

SECTION 205.

Form of Trustee’s Certificate of Authentication

26

SECTION 206.

Guarantee by Guarantor; Form of Guarantee

26

 

ARTICLE THREE

 

THE SECURITIES

 

SECTION 301.

Amount Unlimited; Issuable in Series

29

SECTION 302.

Denominations

32

SECTION 303.

Execution, Authentication, Delivery and Dating

32

SECTION 304.

Temporary Securities

33

SECTION 305.

Registration, Registration of Transfer and Exchange, Matters Relating to Global Securities

34

SECTION 306.

Mutilated, Destroyed, Lost and Stolen Securities

37

SECTION 307.

Payment of Interest; Interest Rights Preserved

37

SECTION 308.

Persons Deemed Owners

39

 

iii



 

 

 

PAGE

 

 

 

SECTION 309.

Cancellation

39

SECTION 310.

Computation of Interest

39

SECTION 311.

CUSIP Numbers

39

SECTION 312.

Transfer Restrictions; Forms of Transfer Certificates

39

 

ARTICLE FOUR

 

SATISFACTION AND DISCHARGE

 

SECTION 401.

Satisfaction and Discharge of Indenture

42

SECTION 402.

Application of Trust Money

43

 

ARTICLE FIVE

 

REMEDIES

 

SECTION 501.

Events of Default

43

SECTION 502.

Acceleration of Maturity; Rescission and Annulment

44

SECTION 503.

Collection of Indebtedness and Suits for Enforcement by Trustee

46

SECTION 504.

Trustee May File Proofs of Claim

46

SECTION 505.

Trustee May Enforce Claims Without Possession of Securities

47

SECTION 506.

Application of Money Collected

47

SECTION 507.

Limitation on Suits

47

SECTION 508.

Unconditional Right of Holders to Receive Principal, Premium and Interest

48

SECTION 509.

Restoration of Rights and Remedies

48

SECTION 510.

Rights and Remedies Cumulative

48

SECTION 511.

Delay or Omission Not Waiver

49

SECTION 512.

Control by Holders

49

SECTION 513.

Waiver of Past Defaults

49

SECTION 514.

Undertaking for Costs

50

SECTION 515.

Waiver of Usury, Stay or Extension Laws

50

 

ARTICLE SIX

 

THE TRUSTEE

 

SECTION 601.

Certain Duties and Responsibilities

50

SECTION 602.

Notice of Defaults

51

SECTION 603.

Certain Rights of Trustee

51

SECTION 604.

Not Responsible for Recitals or Issuance of Securities

52

SECTION 605.

May Hold Securities

52

SECTION 606.

Money Held in Trust

53

SECTION 607.

Compensation and Reimbursement

53

SECTION 608.

Conflicting Interests

54

SECTION 609.

Corporate Trustee Required; Eligibility

54

SECTION 610.

Resignation and Removal; Appointment of Successor

54

SECTION 611.

Acceptance of Appointment by Successor

56

SECTION 612.

Merger, Conversion, Consolidation or Succession to Business

57

SECTION 613.

Preferential Collection of Claims Against Company

57

 

iv



 

 

 

PAGE

 

 

 

SECTION 614.

Appointment of Authenticating Agent

57

 

ARTICLE SEVEN

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

SECTION 701.

Company to Furnish Trustee Names and Addresses of Holders

59

SECTION 702.

Preservation of Information; Communications to Holders

59

SECTION 703.

Reports by Trustee

59

SECTION 704.

Reports by Company

60

 

ARTICLE EIGHT

 

CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

SECTION 801.

Company May Consolidate, Etc., Only on Certain Terms

60

SECTION 802.

Successor Substituted

61

SECTION 803.

Securities to be Secured in Certain Events

61

 

ARTICLE NINE

 

SUPPLEMENTAL INDENTURES

 

SECTION 901.

Supplemental Indentures Without Consent of Holders

62

SECTION 902.

Supplemental Indentures With Consent of Holders

63

SECTION 903.

Execution of Supplemental Indentures

64

SECTION 904.

Effect of Supplemental Indentures

64

SECTION 905.

Conformity with Trust Indenture Act

64

SECTION 906.

Reference in Securities to Supplemental Indentures

65

 

ARTICLE TEN

 

COVENANTS

 

SECTION 1001.

Payment of Principal, Premium, Interest and Additional Interest

65

SECTION 1002.

Maintenance of Office or Agency

65

SECTION 1003.

Money for Securities Payments to Be Held in Trust

65

SECTION 1004.

Statement by Officers as to Default

67

SECTION 1005.

Existence

67

SECTION 1006.

Additional Amounts

67

SECTION 1007.

Waiver of Certain Covenants

69

SECTION 1008.

Negative Pledge

69

 

ARTICLE ELEVEN

 

REDEMPTION OF SECURITIES

 

SECTION 1101.

Applicability of Article

71

SECTION 1102.

Election to Redeem; Notice to Trustee

71

SECTION 1103.

Selection by Trustee of Securities to Be Redeemed

72

 

v



 

 

 

PAGE

 

 

 

SECTION 1104.

Notice of Redemption

72

SECTION 1105.

Deposit of Redemption Price

73

SECTION 1106.

Securities Payable on Redemption Date

73

SECTION 1107.

Securities Redeemed in Part

74

SECTION 1108.

Change of Control Repurchase Event

74

SECTION 1109.

Tax Redemption

75

 

ARTICLE TWELVE

 

SINKING FUNDS

 

SECTION 1201.

Applicability of Article

76

SECTION 1202.

Satisfaction of Sinking Fund Payments with Securities

77

SECTION 1203.

Redemption of Securities for Sinking Fund

77

 

ARTICLE THIRTEEN

 

DEFEASANCE AND COVENANT DEFEASANCE

 

SECTION 1301.

Company’s Option to Effect Defeasance or Covenant Defeasance

77

SECTION 1302.

Defeasance and Discharge

78

SECTION 1303.

Covenant Defeasance

78

SECTION 1304.

Conditions to Defeasance or Covenant Defeasance

78

SECTION 1305.

Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions

80

SECTION 1306.

Reinstatement

81

 

ARTICLE FOURTEEN

 

GUARANTEE OF GUARANTEED SECURITIES

 

SECTION 1401.

Guarantee

81

SECTION 1402.

Execution and Delivery of Guarantees

82

SECTION 1403.

Additional Guarantees

83

SECTION 1404.

Release of Guarantees

83

 

ARTICLE FIFTEEN

 

MISCELLANEOUS PROVISIONS

 

SECTION 1501.

Consent to Jurisdiction and Service of Process

83

SECTION 1502.

Indenture and Securities Solely Corporate Obligations

85

SECTION 1503.

Certain Provisions Concerning the Payment of Interest

85

SECTION 1504.

Execution in Counterparts

85

 

vi



 

Kinross Gold Corporation

 

Certain Sections of this Indenture relating to Sections 310 through 318,

inclusive, of the Trus t Indenture Act of 1939:

 

Trust Indenture

 

 

Act Section

 

Indenture Section

 

 

 

 

§ 310(a)

(1)

 

609

(a)

(2)

 

609

(a)

(3)

 

Not Applicable

(a)

(4)

 

Not Applicable

(b)

 

 

608

 

 

 

610

§ 311(a)

 

 

613

(b)

 

 

613

§ 312(a)

 

 

701

 

 

 

702

(b)

 

 

702

(c)

 

 

702

§ 313(a)

 

 

703

(b)

 

 

703

(c)

 

 

703

(d)

 

 

703

§ 314(a)

 

 

704

(a)

(4)

 

101

 

 

 

1004

(b)

 

 

Not Applicable

(c)

(1)

 

102

(c)

(2)

 

102

(c)

(3)

 

Not Applicable

(d)

 

 

Not Applicable

(e)

 

 

102

§ 315(a)

 

 

601

(b)

 

 

602

(c)

 

 

601

(d)

 

 

601

(e)

 

 

514

§ 316(a)

 

 

101

(a)

(1)(A)

 

502

 

 

 

512

(a)

(1)(B)

 

513

(a)

(2)

 

Not Applicable

(b)

 

 

508

(c)

 

 

104

§ 317(a)

(1)

 

503

(a)

(2)

 

504

(b)

 

 

1003

§ 318(a)

 

 

107

 


NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

 


 

INDENTURE, dated as of August 22, 2011, among Kinross Gold Corporation, a corporation duly organized and existing under the laws of the Province of Ontario, Canada (herein called the “Company”), having its principal office at 25 York Street, 17 th  Floor Toronto, Ontario, Canada M5J 2V5, Aurelian Resources Inc., BGO (Bermuda) Ltd., Kinross Brasil Mineraçao S.A., Kinross Gold U.S.A. Inc., Crown Resources Corporation, Fairbanks Gold Mining, Inc., Melba Creek Mining, Inc., Compania Minera Mantos de Oro, Compania Minera Maricunga, Red Back Mining Mauritania No. 2 Limited, Red Back Mining Inc. and Round Mountain Gold Corporation (together, herein called the “Guarantors” and each, a “Guarantor”) and Wells Fargo Bank, National Association, a national banking association duly organized and existing under the laws of the United States of America, as Trustee (herein called the “Trustee”).

 

RECITALS OF THE COMPANY AND THE GUARANTORS

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.

 

The Guarantors have duly authorized the execution and delivery of this Indenture, and the making of the Guarantees pursuant to this Indenture (the “Guarantees”).

 

All things necessary to make this Indenture a valid agreement of the Company and the Guarantors, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

 

ARTICLE ONE

 

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

 

SECTION 101.               Definitions .

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(1)                          the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(2)                          all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 



 

(3)                          all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

 

(4)                          unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and

 

(5)                          the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

“Act”, when used with respect to any Holder, has the meaning specified in Section 104.

 

“Additional Amounts” has the meaning specified in Section 1006.

 

“Additional Interest” shall mean, with respect to any series of Securities, any additional amounts of interest that shall become payable pursuant to any registration rights agreement applicable to such series of Securities as a result of a registration default under such agreement.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Agent Members” has the meaning specified in Section 305.

 

“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.

 

“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state law for the relief of debtors.

 

“Board of Directors” means either the board of directors of the Company or a Guarantor, as the case may be, or any duly authorized committee of that board.

 

“Board Resolution” means a copy of a resolution certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company or a Guarantor to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.

 

2



 

“Change of Control” means the occurrence of any of the following:

 

(1)                                  the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation or statutory plan of arrangement or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and the Company’s subsidiaries taken as a whole to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than to the Company or one of its subsidiaries;

 

(2)                                  the consummation of any transaction (including, without limitation, any merger, amalgamation or statutory plan of arrangement or consolidation) the result of which is that any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Voting Stock of the Company or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;

 

(3)                                  the Company consolidates, amalgamates, or enters into a statutory plan of arrangement with, or merges with or into, any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), or any person consolidates, amalgamates, or enters into a statutory plan of arrangement with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, Voting Stock representing more than 50% of the combined voting power of the surviving person immediately after giving effect to such transaction;

 

(4)                                  the first day on which the majority of the members of the Company’s board of directors cease to be Continuing Directors; or

 

(5)                                  the adoption of a plan relating to the Company’s liquidation or dissolution.

 

Notwithstanding the foregoing, any holding company whose only significant asset is capital stock of the Company or any of the Company’s direct or indirect parent companies shall not itself be considered a “person” or “group” for purposes of clause (2) above.

 

“Change of Control Repurchase Event” in respect of a series of Securities means each of the Rating Agencies downgrade their ratings of a series of Securities by at least one “notch” and, following such downgrades, the Securities of such series are rated below Investment Grade by each of the Rating Agencies on any date during the Trigger Period. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.

 

3



 

“Commission” means the U.S. Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Securities.

 

“Comparable Treasury Price” means, with respect to any redemption date, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations.

 

“Company Request” or “Company Order” means, respectively, a written request or order signed in the name of the Company by two Officers of the Company, and delivered to the Trustee.

 

“Consolidated Net Tangible Assets” means the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (1) all current liabilities (excluding any portion thereof constituting Funded Debt); and (2) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent consolidated balance sheet of the Company and computed in accordance with GAAP.

 

“Continuing Director” means, as of any date of determination, any member of the Company’s board of directors who:

 

(1)                                  was a member of such board of directors on the date of the issuance of the relevant series of Securities; or

 

(2)                                  was nominated for election, elected or appointed to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

 

“Corporate Trust Office” means the office of the Trustee located at 45 Broadway, 14 th  Floor, New York, New York 10006, Attention: Corporate Trust Services —

 

4



 

Administrator for Kinross Gold Corporation, and as may be located at such other address as the Trustee may give notice to the Company.

 

“corporation” means a corporation, association, company, joint-stock company or business trust.

 

“Covenant Defeasance” has the meaning specified in Section 1303.

 

“Credit Agreement” means the Fourth Amended and Restated Credit Agreement, dated as of March 31, 2011, among Kinross Gold Corporation, Kinross Gold U.S.A., Inc., Round Mountain Gold Corporation and Kinross Brasil Minercaçao S.A., the lending institutions named therein and The Bank of Nova Scotia, as administrative agent, as amended, extended, renewed, restated, supplemented, refunded, replaced or otherwise modified from time to time by one or more credit facilities, and any agreement entered into in substitution therefor.

 

“Credit Agreement Guarantor” means a “Borrower” (other than the Company) or a “Guarantor,” each as such term is defined in the Credit Agreement.

 

“Defaulted Interest” has the meaning specified in Section 307.

 

“Defeasance” has the meaning specified in Section 1302.

 

“Depositary” means, with respect to the Securities of any series, The Depository Trust Company, or any successor thereto, or any other Person designated pursuant to Section 301 with respect to the Securities of such series.

 

“Dollars,” and the dollar sign (“$”), means U.S. Dollars.

 

“Event of Default” has the meaning specified in Section 501.

 

“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

 

“Exchange Securities” means the Securities issued in exchange for, and in an aggregate principal amount equal to, Restricted Global Securities and Regulation S Global Securities pursuant to the terms of a registration rights agreement and containing terms substantially identical to, and evidencing the same indebtedness as, the Restricted Global Securities and Regulation S Global Securities exchanged therefor (except that such Exchange Securities will be registered under the Securities Act and will not bear any legend to the contrary).

 

“Expiration Date” has the meaning specified in Section 104.

 

“Funded Debt” means, as applied to any person, all indebtedness created or assumed by such person maturing after, or renewable or extendable at the option of such person beyond, 12 months from the date of creation thereof.

 

“GAAP” means IFRS as issued by the IASB in effect from time to time or, if different and if then used by the Company for the Company’s public financial reporting

 

5



 

purposes in Canada, generally accepted accounting principles in Canada or the United States.

 

“Global Security” has the meaning specified in Section 201.

 

“Government Obligations” means, with respect to a series of Securities, direct obligations of the government that issues the currency in which the Securities of the series are payable for the payment of which the full faith and credit of such government is pledged, or obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government, the payment of which is unconditionally guaranteed as a full faith and credit obligation by such government.

 

“Guarantee” means any guarantee of the Guarantor as endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the Guarantee set forth in Section 1401 of this Indenture and all other obligations and covenants of the Guarantor contained in this Indenture and any Guaranteed Securities.

 

“Guaranteed Securities” means Securities issued by the Company and guaranteed by one or more Guarantors and authenticated and delivered under this Indenture.

 

“Guarantor” means (a) any Person named as a “Guarantor” in the first paragraph of this instrument, and (b) any Person who shall be named as a Guarantor pursuant to a Supplemental Indenture, until, in each case (1) a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person or (2) until the Guarantees provided by such Guarantor terminate in accordance with the terms as set forth therein or herein.

 

“Holder” means a Person in whose name a Security is registered in the Security Register.

 

“IASB” means the International Accounting Standards Board.

 

“IFRS” means International Financial Reporting Standards.

 

“Indebtedness” means all obligations for borrowed money represented by notes, bonds, debentures or similar evidence of indebtedness and obligations for borrowed money evidenced by credit, loan or other like agreements.

 

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and that govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.

 

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

 

6



 

“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“Investment Company Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.

 

“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and the equivalent investment grade credit rating from any additional rating agency or rating agencies selected by the Company.

 

“Lien” means any deed of trust, mortgage, charge, hypothec, assignment, pledge, lien, vendor’s privilege, vendor’s right of reclamation or other security interest or encumbrance of any kind incurred or assumed in order to secure payment of Indebtedness.

 

“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.

 

“Non U.S. Guarantor” means any Guarantor whose jurisdiction of organization is not the United States or one of its states or the District of Columbia.

 

“Notice of Default” means a written notice of the kind specified in Section 501(4).

 

“Officer” means the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Chief Legal Officer, the Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller, the Corporate Secretary or any Assistant Corporate Secretary of a Person.

 

“Officers’ Certificate” means a certificate signed by two Officers of the Company and delivered to the Trustee. One of the Officers signing an Officers’ Certificate given pursuant to Section 1004 shall be the Chief Executive Officer or the Chief Financial Officer of the Company.

 

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee. Such counsel may be an employee of or counsel to the Company or the Trustee.

 

“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

7



 

(1)                          Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(2)                          Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

(3)                          Securities as to which Defeasance has been effected pursuant to Section 1302; and

 

(4)                          Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

 

provided, however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (B) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) above, of the amount determined as provided in such Clause), and (C) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

 

“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on, and any Additional Amounts with respect to, any Securities on behalf of the Company.

 

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“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on, and any Additional Amounts with respect to, the Securities of that series are payable as specified as contemplated by Section 301.

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

“Principal Property” means the interest of the Company or any Restricted Subsidiary in any (a) mineral property or (b) manufacturing or processing plant, building, structure, dam or other facility, together with the land upon which it is erected and fixtures comprising a part thereof, whether owned as of the date of this Indenture or thereafter acquired or constructed by the Company or any Restricted Subsidiary, the net book value of which interest, in each case, on the date as of which the determination is being made, is an amount that exceeds 7% of Consolidated Net Tangible Assets, except any such mineral property, plant, building, structure, dam or other facility or any portion thereof, together with the land upon which it is erected and fixtures comprising a part thereof, (i) acquired or constructed principally for the purpose of controlling or abating atmospheric pollutants or contaminants, or water, noise, odor or other pollution or (ii) which the Board of Directors of the Company by resolution declares is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries considered as one enterprise.

 

“Rating Agency” means each of Moody’s and S&P; provided that, if either Moody’s or S&P ceases to rate any series of Securities or fails to make a rating of any series of Securities publicly available for any reason that is beyond the Company’s control, the Company may select (as certified by a resolution of the Company’s board of directors) a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, as a replacement agency for Moody’s or S&P, or both of them, with respect to such series of Securities, as the case may be.

 

“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

 

“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

 

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal

 

9



 

amount) quoted in writing to the Company by such Reference Treasury Dealer at 3:30 p.m. New York time on the third Business Day preceding such redemption date.

 

“Reference Treasury Dealer” means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. LLC and UBS Securities LLC, or their respective affiliates which are primary U.S. government securities dealers, and two other primary U.S. government securities dealers in the United States (each a “primary treasury dealer”) selected by the Company, and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary treasury dealer, the Company shall substitute another primary treasury dealer.

 

“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.

 

“Regulation S Global Securities” has the meaning specified in Section 201.

 

“Relevant Taxing Jurisdiction” has the meaning specified in Section 1006.

 

“Responsible Officer”, when used with respect to the Trustee, means any vice president, any assistant vice president, any trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“Restricted Global Securities” has the meaning specified in Section 201.

 

“Restricted Subsidiary” means (1) any Subsidiary of the Company which owns or leases a Principal Property; and (2) any Subsidiary of the Company engaged primarily in the business of owning or holding securities of Restricted Subsidiaries.

 

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.

 

“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

 

“Security Custodian” means, with respect to Securities of a series issued in global form, the Trustee for Securities of such series, as custodian with respect to the Securities of such series, or any successor entity thereto.

 

“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.

 

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“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies Inc., and its successors.

 

“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Subsidiary” means, at any relevant time, any person of which the voting shares or other interests carrying more than 50% of the outstanding voting rights attached to all outstanding voting shares or other interests are owned, directly or indirectly, by a person and/or one or more subsidiaries of such person.

 

For the purposes of this definition, “voting shares” means interests which ordinarily have voting power for the election of directors, whether at all times or only so long as no senior class of interests has such voting power by reason of any contingency.

 

“Tax Act” means the Income Tax Act (Canada) and the Income Tax Regulations (Canada).

 

“Taxes” has the meaning specified in Section 1006.

 

“Trigger Period” means that period commencing on the date of the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended, with respect to any series of Security, so long as the rating of the Securities of such series is under publicly announced consideration for a possible downgrade by any of the Rating Agencies).

 

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however , that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

 

“USA PATRIOT ACT” has the meaning specified in Section 114.

 

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“Vice President”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

 

“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.

 

SECTION 102.     Compliance Certificates and Opinions .

 

Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an Officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 1004) shall include,

 

(1)      a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

(2)      a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)      a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4)      a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

SECTION 103.     Form of Documents Delivered to Trustee.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

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Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

SECTION 104.     Acts of Holders; Record Dates.

 

Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

 

The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

The ownership of Securities shall be proved by the Security Register.

 

Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

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The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.

 

The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.

 

With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given

 

14



 

to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

 

SECTION 105.     Notices, Etc., to Trustee and Company.

 

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)        the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (including telecopy) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Services — Administrator for Kinross Gold Corporation, or

 

(2)        the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing (including telecopy) and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.

 

SECTION 106.     Notice to Holders; Waiver.

 

Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

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If by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

SECTION 107.     Conflict with Trust Indenture Act.

 

If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

SECTION 108.     Effect of Headings and Table of Contents.

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 109.     Successors and Assigns.

 

All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

 

SECTION 110.     Separability Clause.

 

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 111.     Benefits of Indenture.

 

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

SECTION 112.     Governing Law.

 

This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York, without regard to conflicts of laws principles thereof.

 

SECTION 113.     Legal Holidays.

 

In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made

 

16



 

at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity.

 

SECTION 114.     USA PATRIOT Act.

 

The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act of 2001, Pub. L. 107-56, as amended (the “USA PATRIOT Act”), the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may require in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

 

SECTION 115.     Waiver of Jury Trial.

 

EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

SECTION 116.     Force Majeure.

 

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. The Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as possible.

 

ARTICLE TWO

 

SECURITY FORMS

 

SECTION 201.     Forms Generally.

 

The Securities of each series, and any Guarantees thereupon, shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required or permitted by this Indenture, determined by the officers executing such Securities, as evidenced by their execution

 

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thereof. If the form of Securities of any series, or any Guarantees thereupon, is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.

 

The definitive Securities and Guarantees shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities. A Security (including any Guarantee endorsed thereon) may be in substantially the form set forth in Sections 202, 203 and 206, or a Security (including any Guarantee endorsed thereon) may be in any form established by or pursuant to authority granted by one or more Board Resolutions and set forth in an Officers’ Certificate or supplemental indenture pursuant to Section 301.

 

Securities offered and sold in reliance on Rule 144A under the Securities Act shall be initially represented by one or more certificates in registered global form without interest coupons (collectively, the “Restricted Global Securities”) and will be deposited with the Trustee as custodian for the Depositary and registered in the name of the Depositary or its nominee. The Restricted Global Securities (and any notes issued in exchange for the Restricted Global Securities, other than Exchange Securities), including beneficial interests in the Restricted Global Securities, will be subject to certain restrictions on transfer set forth therein and in this Indenture and will bear the legend regarding such restrictions set forth in Section 204

 

Securities offered and sold in reliance on Regulation S under the Securities Act shall be initially represented by one or more certificates in registered global form without interest coupons (collectively, the “Regulation S Global Securities” and, together with the Restricted Global Securities, any Exchange Securities issued in Exchange for Restricted Global Securities or Regulation S Global Securities, and any other Securities issued in global form and registered in the name of a Depository or its nominee, the “Global Securities”) and will be deposited with the trustee as custodian for the Depositary and registered in the name of the Depositary or its nominee. Such Securities shall bear the applicable legends set forth in Section 204.

 

SECTION 202.     Form of Face of Security.

 

[ Insert any legend required by the Internal Revenue Code and the regulations thereunder. ]

 

KINROSS GOLD CORPORATION

 

 

CUSIP No.        

 

 

No.

$       

 

Kinross Gold Corporation, a corporation duly organized and existing under the laws of the Province of Ontario, Canada (herein called the “Company”, which term

 

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includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to                        , or registered assigns, the principal sum of                      [ if applicable, insert — Dollars ] [ if applicable, insert currency in which Security is demanded ] [ if the Security is a Global Security, insert —, as such principal sum may be modified from time to time as set forth on Schedule A hereto, ] on                    [ if the Security is to bear interest prior to Maturity, insert — , and to pay interest [ if applicable, insert — and Additional Amounts (if any) ] thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on          and            in each year, commencing              , at the rate of % per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), until the principal hereof is paid or made available for payment [ if applicable, insert — , provided that any principal and premium, and any such installment of interest [ if applicable, insert — and Additional Amounts ] , which is overdue shall bear interest at the rate of % per annum (computed on the basis of a 360-day year consisting of twelve 30-day months) (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest [ if applicable, insert — and Additional Amounts shall be payable on demand ] . The interest [ if applicable, insert — and Additional Amounts (if any) ] so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the        or       (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest [ if applicable, insert — and Additional Amounts (if any) ] not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture ] .

 

[ If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of     % per annum (computed on the basis of a 360-day year consisting of twelve 30-day months) (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [ Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of      % per annum (computed on the basis of a 360-day year consisting of twelve 30-day months) (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand. ]]

 

19



 

Payment of the principal of (and premium, if any) and [ if applicable, insert — any such ] interest on [ if applicable, insert — , and any Additional Amounts with respect to], this Security shall be made at the office or agency of the Company maintained for that purpose in             , in such coin or currency of [ if applicable, insert —] [the United States of America] [if applicable insert name of other jurisdiction] as at the time of payment is legal tender for payment of public and private debts [ if applicable, insert — ; provided, however , that at the option of the Company payment of interest [ if applicable, insert — and Additional Amounts (if any)] may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register ] .

 

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

 

 

KINROSS GOLD CORPORATION

 

 

 

By

 

 

 

 

 

 

By

 

 

[ if the Security is a Global Security, insert Schedule A

 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Global Security have been made:

 

 

 

Amount of

 

Amount of

 

Principal Amount

 

Signature of

 

 

Decrease in

 

Increase in

 

of this Global

 

Authorized

 

 

Principal

 

Principal

 

Note Following

 

Signatory of

 

 

Amount of this

 

Amount of this

 

Such Decrease or

 

Trustee or Notes

Date

 

Global Note

 

Global Note

 

Increase

 

Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

]

 

20


 

SECTION 203.     Form of Reverse of Security.

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of August 22, 2011 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [ if applicable, insert —, limited in aggregate principal amount to $         ] .

 

[ If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice, [ if applicable, insert — (1) on             in any year commencing with the year and ending with the year        through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [ if applicable, insert — on or after          , 20  , as a whole or in part, at the election of the Company, at the following Redemption Prices [ if applicable, insert — (expressed as percentages of the principal amount) ] : If redeemed [ if applicable, insert — on or before        ,    %, and if redeemed ] [ if applicable, insert — prior to         , at a Redemption Price equal to the greater of (i) 100% of the principal amount called for redemption and (ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360- day calendar year consisting of twelve 30-day months) at the Treasury Rate plus      basis points, as calculated by the Independent Investment Banker upon whom the Company, the Trustee and any paying agent shall be entitled to rely conclusively for such purposes, [ if applicable, insert and, if on or after such date, the Securities of this series are redeemable in whole, but not in part, at a Redemption Price equal to 100% of the principal amount,] plus, in each case, accrued interest thereon to, but not including, the date of redemption ] [ if applicable, insert — during the 12-month period beginning        of the years indicated,

 

 

 

Redemption

 

 

 

Redemption

Year

 

Price

 

Year

 

Price

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and thereafter at a Redemption Price equal to     % of the principal amount, together in the case of any such redemption [ if applicable, insert — (whether through operation of the sinking fund or otherwise) ] with accrued interest to the Redemption Date], but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture. ]

 

21



 

[ If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice, (1) on      in any year commencing with the year        and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [ if applicable, insert — on or after           ] , as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning            of the years indicated,

 

 

 

Redemption Price

 

 

 

 

For Redemption

 

Redemption Price For

 

 

Through Operation

 

Redemption Otherwise

 

 

of the

 

Than Through Operation

Year

 

Sinking Fund

 

of the Sinking Fund

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture. ]

 

[ If applicable, insert — Notwithstanding the foregoing, the Company may not, prior to , redeem any Securities of this series as contemplated by [ if applicable, insert — Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than …..% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months). ]

 

[ If applicable, insert — The sinking fund for this series provides for the redemption on             in each year        beginning with the year and ending with the year           of [ if applicable, insert — not less than $           (“mandatory sinking fund”) and not more than ] $          aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [ if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [ if applicable, insert — mandatory ] sinking fund payments otherwise required to be made [ if applicable, insert — , in the inverse order in which they become due ] . ]

 

22



 

[ If the Security is subject to a Change of Control repurchase obligation, insert — The provisions of the Indenture requiring the Company to make a repurchase offer, if a Change of Control Repurchase Event occurs, apply to this Security.]

 

[ If the Security is subject to a Tax Redemption option, insert — The Indenture contains provisions granting the Company the right to redeem this Security at any time if there is a change in law that obliges the Company to pay Additional Amounts with respect to the security. ]

 

[ If the Security is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof. ]

 

[ If applicable, insert — The Indenture contains provisions for defeasance at any time of [ the entire indebtedness of this Security ] [ or ] [ certain restrictive covenants and Events of Default with respect to this Security ] [ , in each case ] upon compliance with certain conditions set forth in the Indenture. ]

 

[ If applicable, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. ]

 

[ If applicable, insert provisions regarding Additional Amounts ]

 

[ If applicable, insert provisions regarding Additional Interest ]

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities with respect to which an Event of Default has occurred at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee

 

23



 

indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities with respect to which an Event of Default has occurred at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on [ if applicable, insert —, and any Additional Amounts with respect to,] this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium interest on [ if applicable, insert —, and any Additional Amounts with respect to,] this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this series are issuable only in registered form without coupons in denominations of $       [ If applicable, insert — and integral multiples ] [ If applicable, insert — thereof ] [ If applicable, insert — of $      in excess of $        ] . As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax, assessment or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

 

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

24



 

SECTION 204.     Forms of Restrictive Legends.

 

(1)        Unless otherwise specified as contemplated by Section 301, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

(2)        Unless otherwise specified as contemplated by Section 301, every Restricted Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form, in addition to the legend contemplated by Section 204(1):

 

THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

 

THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (II) IN THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO RULE 144 UNDER THE SECURITIES ACT, IF APPLICABLE, OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION REQUIRED BY THE INDENTURE, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

 

25



 

(3)        Unless otherwise specified as contemplated by Section 301, every Security shall bear the following legend until the date that is 4 months and one day after the date that such Securities are distributed:

 

UNLESS PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY IN CANADA BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER [ INSERT DISTRIBUTION DATE ].

 

(4)        Unless otherwise specified as contemplated by Section 301, any Exchange Security shall bear the following legend until the date that is 4 months and one day after the date of distribution of the Security for which the Exchange Security was issued:

 

UNLESS PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY IN CANADA BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER [INSERT DISTRIBUTION DATE] .

 

SECTION 205.     Form of Trustee’s Certificate of Authentication.

 

The Trustee’s certificates of authentication shall be in substantially the following form:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

Dated:

 

 

 

 

 

 

WELLS FARGO BANK,

 

NATIONAL ASSOCIATION

 

As Trustee

 

 

 

By

,

 

Authorized Signatory

 

SECTION 206.     Guarantee by Guarantor; Form of Guarantee.

 

Guarantees to be endorsed on Guaranteed Securities shall, subject to Section 201, be in substantially the form set forth below or in any other form established by or pursuant to authority granted by one or more Board Resolutions and set forth in an Officers’ Certificate or supplemental indenture pursuant to Section 301:

 

GUARANTEE

OF

[ Insert name of Guarantor(s) ]

 

For value received, [ Insert name of Guarantors ], a [ Insert type of entities ] under the laws of [ Insert jurisdictions of organization ], (herein called the “Guarantor[s]”, which

 

26



 

term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby [ If applicable, insert — jointly and severally ] unconditionally and irrevocably guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, and interest on such Security, the due and punctual payment of any Additional Amounts that may be payable with respect to such Security, and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether on the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Kinross Gold Corporation, a corporation organized under the laws of the Province of Ontario (herein called the “Company”, which term includes any successor Person under such Indenture), punctually to make any such payment of principal, premium, if any, or interest, or any Additional Amounts that may be payable with respect to such Security or any such sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether on the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.

 

The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any Additional Amounts that may be payable with respect to such Security or any sinking fund or analogous payment required under such Security and all demands whatsoever, and covenants that its obligations under this Guarantee will not be discharged except by payment in full of the principal of, premium, if any, and interest and any Additional Amounts that may be payable with respect to such Security.

 

The Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series issued under such Indenture and any Additional Amounts that may be payable with respect to such Securities shall have been paid in full.

 

27


 

No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantees of the Guarantor, which are absolute and unconditional, of the due and punctual payment of the principal of, premium, if any, and interest on, and any Additional Amounts that may be payable with respect to, and any sinking fund or analogous payments with respect to, the Security upon which this Guarantee is endorsed.

 

This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security to which it relates shall have been manually executed by or on behalf of the Trustee under such Indenture.

 

The Guarantor will be released and relieved of its obligations under this Guarantee, and the Guarantee will be terminated, upon the request of the Company or the Guarantor (without the consent of the Trustee) if (i) the Guarantor shall cease to be a Credit Agreement Guarantor or will be released and relieved of its obligations under the Credit Agreement concurrently with the release of the Guarantee of the Securities and (ii) upon satisfaction and discharge of the Indenture or defeasance or covenant defeasance in accordance with the terms of the Indenture.

 

The Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of each such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Guarantee or (ii) an unlawful distribution under any applicable state law prohibiting shareholder distributions by an insolvent subsidiary to the extent applicable to its Guarantee.

 

All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.

 

This Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

 

Executed and dated as of [ date ].

 

 

 

 

 

 

[ Insert name of Guarantor(s) ]

 

 

 

By

 

 

Name:

 

 

Title:

 

 

 

 

By

 

 

Name:

 

 

Title:

 

 

Reference is made to Article Fourteen for further provisions with respect to the Guarantees.

 

28



 

ARTICLE THREE

 

THE SECURITIES

 

SECTION 301.     Amount Unlimited; Issuable in Series.

 

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,

 

(1)           the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);

 

(2)           any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);

 

(3)           the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;

 

(4)           the date or dates on which the principal of and any premium on any Securities of the series is payable;

 

(5)           the rate or rates, or the method of determination thereof, at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date, or if other than as provided herein, the Person to whom any interest on Securities of the series shall be payable, and whether, under what circumstances and in what manner any Additional Amounts with respect to such Securities shall be payable;

 

(6)           the place or places where the principal of and any premium and interest on, and any Additional Amounts with respect to, any Securities of the series shall be payable;

 

(7)           the period or periods within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which

 

29



 

any election by the Company to redeem the Securities shall be exercised and evidenced;

 

(8)           the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

(9)           if other than denominations of $2,000 and integral multiples of $1,000 in excess thereof, the denominations in which any Securities of the series shall be issuable;

 

(10)         if the amount of the principal of or any premium or interest on, or any Additional Amounts with respect to, any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;

 

(11)         if other than the currency of the United States of America, the currency, currencies or currency units, or the form, including equity securities, other debt securities (including Securities), warrants or any other securities or property of the Company or any other Person, in which the principal of or any premium (if any) or interest on, and any Additional Amounts with respect to, any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101;

 

(12)         if the principal of or any premium or interest on, or any Additional Amounts with respect to, any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on, or any Additional Amounts with respect to, such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);

 

(13)         if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;

 

(14)         if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);

 

30



 

(15)         if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;

 

(16)         if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;

 

(17)         any addition to or change in the Events of Default that applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;

 

(18)         any addition to or change in the covenants set forth in Article Ten which applies to Securities of the series;

 

(19)         any restrictions or other provisions with respect to the transfer or exchange of Securities of the series, which may amend, supplement, modify or supersede those contained in this Article Three;

 

(20)         if the Securities of the series are to be convertible into or exchangeable for capital stock, other debt securities (including Securities), warrants, other equity securities or any other securities or property of the Company or any other Person, at the option of the Company or the Holder or upon the occurrence of any condition or event, the terms and conditions for such conversion or exchange;

 

(21)         whether Securities of the series are to be issuable as Restricted Global Securities, Regulation S Global Securities or both, or issued without some or all of the legends specified in Section 204 because such Securities are initially issued pursuant to an effective registration statement under the Securities Act, or otherwise, and the obligation, if any, of the Company to issue Exchange Securities in exchange therefor pursuant to any registration rights agreement, and any other related terms; and

 

(22)         any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).

 

The Company may, without notice to or the consent of any holder, create and issue additional Securities of any series. All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to

 

31



 

Section 303) set forth, or determined in the manner provided, in the Officers’ Certificate or Company Order referred to above or in any such indenture supplemental hereto.

 

If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be set forth in an Officers’ Certificate or certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.

 

SECTION 302.     Denominations.

 

The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

SECTION 303.     Execution, Authentication, Delivery and Dating.

 

Two Officers of the Company shall sign the Securities on behalf of the Company by manual or facsimile signature.

 

Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Exchange Securities to be issued in exchange for any series of Restricted Global Securities and Regulation S Global Securities, executed by the Company for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,

 

(1)           if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture;

 

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(2)           if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and

 

(3)           that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;

 

If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

Each Security shall be dated the date of its authentication.

 

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

SECTION 304.     Temporary Securities.

 

Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as evidenced by their execution of such Securities.

 

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If temporary Securities of any series are issued, the Company shall cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series, evidencing the same indebtedness, upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.

 

SECTION 305.                               Registration, Registration of Transfer and Exchange, Matters Relating to Global Securities.

 

The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.

 

Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.

 

At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.

 

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No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.

 

If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

 

The provisions of Clauses (1), (2), (3), (4), (5), (6) and (7) below shall apply only to Global Securities:

 

(1)           Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of outstanding Securities represented thereby shall be made by the Trustee (i) in such manner and upon written instructions given by such Person or Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 303 or (ii) otherwise in accordance with written instructions or such other written form of instructions as is customary for the Depositary for such Security, from such Depositary or its nominee on behalf of any Person having a beneficial interest in such Global Security. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order. With respect to the Securities of any series that are represented by a Global Security, the Company authorizes the execution and delivery by the Trustee of a letter of representations or other similar agreement or instrument in the form customarily provided for by the Depositary appointed with respect to such Global Security. Any Global Security may be deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian therefore pursuant to a FAST Balance Certificate Agreement or similar agreement between the Trustee and the Depositary. If a Company Order has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.

 

(2)           Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee or the Security Custodian as its custodian, or

 

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under such Global Security, and the Depositary may be treated by the Company, the Trustee or the Security Custodian and any agent of the Company, the Trustee or the Security Custodian as the absolute owner of such Global Security for all purposes whatsoever, except as required by law. Notwithstanding the foregoing, (i) the registered holder of a Global Security of a series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder of Securities of such series is entitled to take under this Indenture or the Securities of such series and (ii) nothing herein shall prevent the Company, the Trustee or the Security Custodian, or any agent of the Company, the Trustee or the Security Custodian, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Security.

 

(3)           Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Company that it is unwilling, unable or no longer qualified to continue as Depositary for such Global Security (unless a replacement Depository is named), (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security and the Depository requests the issuance of certificated Securities, (C) the Company so determines, as evidenced by a Company Order or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.

 

(4)           Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.

 

(5)           Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 305, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.

 

(6)           Neither the Company nor the Trustee shall have any responsibility or liability for any aspect of the records relating to, or payments made on account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to such Securities. Neither the Company nor the Trustee shall be liable for any delay by the related Holder of the Global Security or the Depositary in identifying the beneficial owners, and each such Person may conclusively rely on, and shall be protected in conclusively relying on, instructions from such Holder of the Global Security or the Depositary for all purposes (including

 

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with respect to the registration and delivery, and the respective principal amounts, of the Securities to be issued).

 

(7)           Notwithstanding the provisions of Sections 201 and 307, unless otherwise specified as contemplated by Section 301, payment of principal of, any premium and interest on, and any Additional Amounts with respect to, any Global Security shall be made to the Person or Persons specified therein.

 

SECTION 306.     Mutilated, Destroyed, Lost and Stolen Securities.

 

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

 

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

SECTION 307.     Payment of Interest; Interest Rights Preserved.

 

Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on, or Additional Amounts with respect to, any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment

 

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Date, on or before 10:00 a.m. New York City time, shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.

 

Any interest on, or Additional Amounts with respect to, any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:

 

(1)           The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business (New York time) on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).

 

(2)           The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

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SECTION 308.     Persons Deemed Owners.

 

Prior to due presentment of a Security for registration of transfer, except as required by law the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on, and any Additional Amounts with respect to, such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

SECTION 309.     Cancellation.

 

All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.

 

SECTION 310.     Computation of Interest.

 

Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

SECTION 311.     CUSIP Numbers.

 

The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in an notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

SECTION 312.     Transfer Restrictions; Forms of Transfer Certificates.

 

(1)           No transfer of any beneficial interest in a Restricted Global Security may take place except in accordance with the provisions of this Section 312.

 

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(2)           A beneficial interest in a Restricted Global Security may be transferred to a person who takes delivery in the form of an interest in a Restricted Global Security without furnishing any certificate to the Trustee or a designee of the Trustee.

 

(3)           A beneficial interest in a Regulation S Global Security may be transferred to a person who takes delivery in the form of an interest in a Regulation S Global Security without furnishing any certificate to the Trustee or a designee of the Trustee.

 

(4)           A beneficial interest in a Restricted Global Security may be transferred to a person who takes delivery in the form of a Regulation S Global Security only if the following certificate from the transferor is furnished to the Trustee and/or any person designated by the Trustee to receive such certificates:

 

TRANSFER CERTIFICATE OF RULE 144A SECURITIES TO REGULATION S SECURITIES

 

The undersigned transferor hereby certifies, in connection with its transfer to [ name of transferee ], transferee, dated [ date ], of [ specify amount ] in principal face amount of beneficial interests in [ title of Security ], currently held by the Depository as a Restricted Global Security, as those terms are defined in the Indenture governing [ title of security ], that such transfer is being made in accordance with (specify by checkmark):

 

o Rule 903 of Regulation S under the Securities Act;

 

o Rule 904 of Regulation S under the Securities Act;

 

o Rule 144 under the Securities Act

 

This Certificate shall be governed by and construed in accordance with the laws of the State of New York.

 

Executed and dated the date on the face hereof.

 

 

[ Insert name of transferor ]

 

 

 

By

 

 

Name:

 

 

Title:

 

 

 

 

By

 

 

Name:

 

 

Title:

 

 

(5)           A beneficial interest in a Regulation S Global Security may be transferred to a person who takes delivery in the form of a Restricted Global Security

 

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only if the following certificate from the transferor is furnished to the Trustee and/or any person designated by the Trustee to receive such certificates:

 

TRANSFER CERTIFICATE OF REGULATION S SECURITIES TO RULE 144A SECURITIES

 

The undersigned transferor hereby certifies, in connection with its transfer to [ name of transferee ], transferee, dated [ date ], of [ specify amount ] in principal face amount of beneficial interests in [ title of Security ], currently held by the Depository as a Regulation S Global Security, as those terms are defined in the Indenture governing [ title of security ], that such transfer is being made (i) to a person whom the transferor reasonably believes is a qualified institutional buyer as defined in Rule 144A under the Securities Act and (ii) in a transaction meeting the requirements of Rule 144A.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of New York.

 

Executed and dated the date on the face hereof.

 

 

[ Insert name of transferor ]

 

 

 

By

 

 

Name:

 

 

Title:

 

 

 

 

By

 

 

Name:

 

 

Title:

 

 

(6)           Any beneficial interest in one of the Global Securities that is transferred to a person who takes delivery in the form of an interest in another Global Security shall, upon transfer, cease to be an interest in such Global Security and shall become an interest in such other Global Security and, accordingly, shall thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Security for as long as it remains such an interest.

 

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ARTICLE FOUR

 

SATISFACTION AND DISCHARGE

 

SECTION 401.     Satisfaction and Discharge of Indenture.

 

This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), with respect to the Securities of any series, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when

 

(1)           either

 

(A)  all Securities of a series theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

 

(B)  all such Securities not theretofore delivered to the Trustee for cancellation

 

(1)          have become due and payable, or

 

(2)          will become due and payable at their Stated Maturity within one year, or

 

(3)          are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Company for cancellation, for principal and any premium, and interest and Additional Amounts to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(2)           the Company has paid or caused to be paid all other sums payable hereunder by the Company; and

 

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(3)           the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Company to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.

 

SECTION 402.     Application of Trust Money.

 

Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.

 

ARTICLE FIVE

 

REMEDIES

 

SECTION 501.     Events of Default.

 

“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(1)           default in the payment of any interest upon, or Additional Amounts in respect of, any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or

 

(2)           default in the payment of the principal of or any premium on any Security of that series at its Maturity; or

 

(3)           default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or

 

(4)           default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least

 

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25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(5)           default by the Company or any Guarantor in the payment of indebtedness of $100,000,000 or more in principal amount outstanding when due after the expiration of any applicable grace period, or default under indebtedness of the Company or any Guarantor of $100,000,000 or more in principal amount resulting in acceleration of such indebtedness, but only if such indebtedness is not discharged or such acceleration is not rescinded or annulled and such default continues for 10 days after written notice of the default is sent to the Company; or

 

(6)           the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company or any Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization or winding-up of the Company under the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy Act (Canada) or the Winding-Up Act (Canada) or any other bankruptcy, insolvency or analogous laws, or issuing sequestration or process of execution against the Company or any Guarantor or any substantial part of their respective property, or appointing a receiver of the Company or any Guarantor or of any substantial part of their respective property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order or appointment unstayed, undischarged and in effect for a period of 90 days from the date thereof; or

 

(7)           the institution by the Company or any Guarantor of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy Act (Canada) or the Winding-Up Act (Canada) or any other bankruptcy, insolvency or analogous laws, or the consent by it to the filing of any such petition or to the appointment of a receiver of the Company or of any substantial part of its property, or the making by it of a general assignment for the benefit of creditors, or the Company’s or any Guarantor’s admitting in writing its inability to pay its debts generally as they become due or taking of corporate action by the Company or Guarantor in furtherance of any such action; or

 

(8)           any other Event of Default provided with respect to Securities of that series.

 

SECTION 502.     Acceleration of Maturity; Rescission and Annulment.

 

If an Event of Default (other than an Event of Default specified in Section 501(5) or 501(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of all series of Securities with respect to which the Event of Default has occurred (voting as a single class) may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately,

 

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by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 501(6) or 501 (7) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.

 

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of all series of Securities with respect to which the Event of Default has occurred (voting as a single class), by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

 

(1)           the Company has paid or deposited with the Trustee a sum sufficient to pay:

 

(A)               all overdue interest and Additional Amounts on all Securities of that series,

 

(B)               the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,

 

(C)               to the extent that payment of such interest is lawful, interest upon overdue interest and Additional Amounts at the rate or rates prescribed therefor in such Securities, and

 

(D)               all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;

 

and

 

(2)           all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

 

No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

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SECTION 503.               Collection of Indebtedness and Suits for Enforcement by Trustee.

 

The Company covenants that if:

 

(1)           default is made in the payment of any interest or Additional Amounts on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or

 

(2)           default is made in the payment of the principal of, or premium, if any, on any Security at the Maturity thereof,

 

the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

SECTION 504.     Trustee May File Proofs of Claim.

 

In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to first pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.

 

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of

 

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the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

 

SECTION 505.     Trustee May Enforce Claims Without Possession of Securities.

 

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

SECTION 506.     Application of Money Collected.

 

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

FIRST: To the payment of all amounts due the Trustee under Section 607; and

 

SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on, and any Additional Amounts with respect to, the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and

 

THIRD: To the Company.

 

SECTION 507.     Limitation on Suits.

 

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

 

(1)           such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

 

(2)           the Holders of at least 25% in principal amount of the Outstanding Securities of all series with respect to which the Event of Default has occurred shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

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(3)                                  such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(4)                                  the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(5)                                  no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of all series with respect to which an Event of Default has occurred;

 

it being understood and intended and being expressly covenanted by the taker and holder of every Security, with every other taker and holder and with the Trustee, that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders), or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.

 

SECTION 508.     Unconditional Right of Holders to Receive Principal, Premium and Interest.

 

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on, and any Additional Amounts with respect to, such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

SECTION 509.               Restoration of Rights and Remedies.

 

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

SECTION 510.               Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall,

 

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to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

SECTION 511.               Delay or Omission Not Waiver.

 

No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

SECTION 512.               Control by Holders.

 

The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that:

 

(1)                          such direction shall not be in conflict with any rule of law or with this Indenture, and

 

(2)                          the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

SECTION 513.               Waiver of Past Defaults.

 

The Holders of not less than a majority in principal amount of the Outstanding Securities of all series with respect to which a past default has occurred may, on behalf of the Holders of all such Securities, waive any past default hereunder, with respect to such Securities, and its consequences, except a default:

 

(1)                          in the payment of the principal of or any premium or interest on, or any Additional Amounts with respect to, any Security of such series, or

 

(2)                          in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

 

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

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SECTION 514.               Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including reasonable attorney’s fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee or by the Company.

 

SECTION 515.               Waiver of Usury, Stay or Extension Laws.

 

The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE SIX

 

THE TRUSTEE

 

SECTION 601.               Certain Duties and Responsibilities.

 

The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Except during the continuance of an Event of Default, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

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SECTION 602.               Notice of Defaults.

 

If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act or within 90 days of such occurrence; provided, however, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

 

SECTION 603.               Certain Rights of Trustee.

 

Subject to the provisions of Section 601:

 

(1)                                  the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(2)                                  any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;

 

(3)                                  whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;

 

(4)                                  the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(5)                                  the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(6)                                  the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be

 

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entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

 

(7)                                  the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

(8)                                  the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(9)                                  in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

(10)                                the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

 

(11)                                the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;

 

(12)                                the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; and

 

(13)                                the Trustee may request that the Company deliver a certificate setting forth the names and titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

SECTION 604.               Not Responsible for Recitals or Issuance of Securities.

 

The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

SECTION 605.               May Hold Securities.

 

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may

 

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become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

 

SECTION 606.               Money Held in Trust.

 

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.

 

SECTION 607.               Compensation and Reimbursement.

 

The Company agrees

 

(1)                                  to pay to the Trustee from time to time such compensation as shall be agreed in writing between the Company and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(2)                                  except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and

 

(3)                                  to indemnify the Trustee for, and to hold it harmless against, any and all loss, damage, claim, liability or expense including taxes (other than franchise taxes and taxes based upon, measured by or determined by the income of the Trustee) incurred without gross negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, a Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder.

 

The Trustee shall have a lien prior to the Securities as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of particular Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Sections 501(6) or 501(7), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the termination of this Indenture.

 

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SECTION 608.               Conflicting Interests.

 

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.

 

SECTION 609.               Corporate Trustee Required; Eligibility.

 

There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

SECTION 610.               Resignation and Removal; Appointment of Successor.

 

No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.

 

The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company not less than 30 days prior to the effective date of such removal. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

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If at any time:

 

(1)                                  the Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(2)                                  the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(3)                                  the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

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SECTION 611.               Acceptance of Appointment by Successor.

 

In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver a supplemental indenture wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

 

Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.

 

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. The

 

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Trustee shall have no responsibility or liability for any action of inaction of a successor trustee.

 

SECTION 612.               Merger, Conversion, Consolidation or Succession to Business.

 

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

SECTION 613.               Preferential Collection of Claims Against Company.

 

If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

SECTION 614.               Appointment of Authenticating Agent.

 

The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

 

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Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

 

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

 

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

Dated:

 

 

 

 

WELLS FARGO BANK,

 

NATIONAL ASSOCIATION

 

 

 

As Trustee

 

 

 

By

 

 

As Authenticating Agent

 

 

 

By

 

 

Authorized Signatory

 

 

 

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ARTICLE SEVEN

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

SECTION 701.               Company to Furnish Trustee Names and Addresses of Holders.

 

The Company shall furnish or cause to be furnished to the Trustee:

 

(1)                                  not later than seven Business Days after each record date for the payment of interest on the Securities of each series, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series, and

 

(2)                                  at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;

 

excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.

 

SECTION 702.               Preservation of Information; Communications to Holders.

 

The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

 

The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.

 

Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.

 

SECTION 703.               Reports by Trustee.

 

The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the date of the initial issuance of Securities under this Indenture, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).

 

A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with

 

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the Commission and with the Company. The Company shall promptly notify the Trustee in writing when any Securities are listed on any stock exchange, and of any delisting thereof.

 

SECTION 704.               Reports by Company.

 

The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as it may be required to provide pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act.

 

The Company shall file with the Trustee, within 30 days after such reports or information is filed with the SEC, copies, which may be in electronic format, of its annual report and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulation prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act and does not otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rule and regulations promulgated by the SEC, it will continue to provide the Trustee (i) annual reports containing audited financial statements and (ii) quarterly reports for the first three quarters of each fiscal year containing unaudited financial information, in each case in accordance with Canadian disclosure requirements and GAAP.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

ARTICLE EIGHT

 

CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

SECTION 801.               Company May Consolidate, Etc., Only on Certain Terms.

 

The Company shall not consolidate or amalgamate with or merge into or enter into any statutory arrangement with any other Person or, directly or indirectly, convey, transfer or lease all or substantially all of its properties and assets to any Person, and the Company shall not permit any Person to consolidate or amalgamate with or merge into or enter into any statutory arrangement with the Company or convey, transfer or lease all or substantially all of its properties and assets as an entirety to the Company, unless:

 

(1)                                  the person formed by or continuing from such consolidation or amalgamation or into which the Company is merged or with which the Company enters into such statutory arrangement or the person which acquires or leases all or substantially all of the Company’s properties and assets is organized and existing

 

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under the laws of the United States, any state thereof or the District of Columbia or the laws of Canada or any province or territory thereof;

 

(2)                                  the successor Person expressly assumes or assumes by operation of law all of the Company’s obligations under its debt securities, including the Securities, and under this Indenture;

 

(3)                                  immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and

 

(4)                                  the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

SECTION 802.               Successor Substituted.

 

Upon any consolidation or amalgamation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or amalgamation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

SECTION 803.               Securities to be Secured in Certain Events.

 

If, as a result of any such transaction, any of the Company’s Principal Properties becomes subject to a Lien, then, unless such Lien could be created pursuant to Section 1008 of this Indenture without equally and ratably securing any Securities to which Section 1008 applies, the Company, simultaneously with or prior to such transaction, will cause such Securities to be secured equally and ratably with or prior to the Indebtedness secured by such Lien.

 

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ARTICLE NINE

 

SUPPLEMENTAL INDENTURES

 

SECTION 901.               Supplemental Indentures Without Consent of Holders.

 

Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may amend or supplement this Indenture or the Securities or waive any provision hereof or thereof for any of the following purposes:

 

(1)                                  to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or

 

(2)                                  to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or

 

(3)                                  to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

 

(4)                                  to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or

 

(5)                                  to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination shall not apply to any Security of any series created prior to the execution of such supplemental indenture that is adversely affected in any material respect by such addition, change or elimination of provision; provided, further, that any change made solely to conform the provisions of this Indenture to the description of any Security in an offering document or prospectus supplement will be deemed not to adversely affect any Security of any series in any material respect; or

 

(6)                                  to secure any series of the Securities or provide for any guarantees thereof, additional Guarantors thereon, or additional obligors thereon;

 

(7)                                  to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or

 

(8)                                  to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or

 

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facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or

 

(9)                            to comply with any requirement in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act; or

 

(10)                           to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401 or Article Thirteen; provided, however , that any such action shall not adversely affect the interest of the Holders of Securities of such series or any other series of Securities in any material respect; or

 

(11)                           to cure any ambiguity, omission, defect or inconsistency in this Indenture.

 

Upon the request of the Company, accompanied by a Board Resolution and upon receipt by the Trustee of the documents described in Section 903, the Trustee shall, subject to Section 903, join with the Company in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and make any further appropriate agreements and stipulations that may be therein contained.

 

SECTION 902.               Supplemental Indentures With Consent of Holders.

 

With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

 

(1)                                  change the Stated Maturity of, the principal of, or any installment of principal of or interest or Additional Amounts on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of a Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium, interest or Additional Amounts thereon are payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or

 

(2)                                  reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

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(3)                                  modify any of the provisions of this Section or Section 513, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(8).

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

 

Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 903, the Trustee shall, subject to Section 903, join with the Company in the execution of such amendment or supplemental indenture.

 

SECTION 903.               Execution of Supplemental Indentures.

 

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 601) shall be fully protected in conclusively relying upon, an Officers’ Certificate and on an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and is the legal, valid and binding obligation of the Company. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

SECTION 904.               Effect of Supplemental Indentures.

 

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

SECTION 905.               Conformity with Trust Indenture Act.

 

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.

 

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SECTION 906.               Reference in Securities to Supplemental Indentures.

 

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

ARTICLE TEN

 

COVENANTS

 

SECTION 1001.        Payment of Principal, Premium, Interest and Additional Interest.

 

The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest (including any Additional Interest) on the Securities of that series in accordance with the terms of the Securities and this Indenture.

 

SECTION 1002.        Maintenance of Office or Agency.

 

The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

SECTION 1003.        Money for Securities Payments to Be Held in Trust.

 

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on, and Additional Amounts with respect to, any of the Securities of that

 

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series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

 

Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or any premium or interest on, and any Additional Amounts with respect to, any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.

 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on, and any Additional Amounts with respect to, any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in each of New York City and Toronto, Ontario, Canada, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

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SECTION 1004.        Statement by Officers as to Default.

 

The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.

 

SECTION 1005.        Existence.

 

Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.

 

SECTION 1006.        Additional Amounts.

 

If applicable to Securities of any series, all payments made by or on behalf of the Company under or with respect to the Securities of such series (or by any Guarantor with respect to any Guarantee of such Securities) will be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively “Taxes”) imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or any other jurisdiction in which the Company or any Guarantor is organized or any political subdivision thereof or any authority or agency therein or thereof having power to tax (each, a “Relevant Taxing Jurisdiction”), unless the Company or a Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the Relevant Taxing Jurisdiction.

 

If the Company or a Guarantor is so required to withhold or deduct any amount for, or on account of, Taxes from any payment made under or with respect to the Securities or Guarantees, the Company or the relevant Guarantor, as the case may be, will pay to each holder of Securities as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such holder after such withholding or deduction will not be less than the amount such holder would have received if such Taxes had not been required to be withheld or deducted; provided, however , that the foregoing obligation to pay Additional Amounts shall not apply to:

 

(1)                                  any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, the relevant holder, if the relevant holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction other than the receipt

 

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of such payment or the ownership or holding of or the execution, delivery, registration or enforcement of such Note;

 

(2)                                  any payments to any holder where such holder did not deal at arm’s length (within the meaning of the Tax Act) with the Company or any Guarantor at the time of making a payment under or with respect to the Securities or Guarantee;

 

(3)                                  any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge;

 

(4)                                  any Taxes that are payable otherwise than by deduction or withholding from a payment of principal, premium, interest, Additional Interest, or Additional Amounts on the Securities;

 

(5)                                  any Taxes that would not have been so imposed but for the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on the last date during such 30-day period;

 

(6)                                  any Taxes that would not have been so imposed or would have been imposed at a lower rate if the holder of the Security had provided to the Company or the Guarantor, as applicable, any information, certification, documentation or evidence required under applicable law, rules, regulations or generally published administrative practice of the Relevant Taxing Jurisdiction for such Taxes not to be imposed or to be imposed at a lower rate (provided that such information, certification, documentation or evidence is required by the applicable law, rules, regulations or generally published administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from or reduction in the requirement to deduct or withhold all or part of such Taxes and such information, certification, documentation or evidence is reasonably requested upon reasonable notice by the applicable payor);

 

(7)                                  any Taxes that were imposed on a fiduciary, partnership or other entity that is not the sole beneficial owner of the payment, and the laws of the Relevant Taxing Jurisdiction require the payment to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or beneficial owner who would not have been entitled to such Additional Amounts had it been the holder; or

 

(8)                                  any Taxes that would not have been so imposed but for any combination of the foregoing.

 

The Company or the relevant Guarantor will (i) make such withholding or deduction of Taxes as is required under applicable law or the interpretation or administration thereof by the Relevant Taxing Jurisdiction, (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law and (iii)

 

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furnish to the Trustee evidence that the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes, such evidence limited to (a) the amount remitted to the Relevant Taxing Jurisdiction, (b) the date such amount was remitted to the Relevant Taxing Jurisdiction, (c) the name of the Relevant Taxing Jurisdiction that imposed or levied the Taxes, and (d) a description of the Taxes for which the payment was remitted.

 

If the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or such Guarantor will promptly deliver to the Trustee and paying agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the payment of such Additional Amounts to holders of Securities on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a new officer’s certificate addressing such matters. The Trustee shall have no obligation to determine or obtain knowledge of when Additional Amounts are paid or owed.

 

Wherever in the Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest, including any Additional Interest, or any other amount payable under or with respect to the Securities, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 1006 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 1006 and express mention of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.

 

SECTION 1007.        Waiver of Certain Covenants.

 

Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in Sections 803, 1005 or 1008 or in any covenant provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of all series with respect to which the waiver applies (voting as a single class) shall, by Act of such Holders, either waive in writing such compliance in such instance or generally waive in writing compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

 

SECTION 1008.        Negative Pledge.

 

If applicable to any series of Securities, the Company shall not, and shall not permit any Restricted Subsidiary to, create, incur, issue, assume or otherwise have outstanding any Lien on or over any Principal Property now owned or hereafter acquired by the Company or a Restricted Subsidiary to secure any Indebtedness, or on shares of stock or Indebtedness of any Restricted Subsidiary now owned or hereafter acquired by

 

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the Company or a Restricted Subsidiary to secure any Indebtedness, unless at the time thereof or prior thereto all Securities then outstanding to which this Section 1008 applies (together with, if and to the extent the Company so determines, any other Indebtedness then existing or thereafter created), are secured equally and ratably with (or prior to) any and all such Indebtedness for so long as such Indebtedness is so secured by such Lien; provided, however , that this covenant shall not apply to or operate to prevent or restrict the following permitted Liens:

 

(1)                                  any Lien on property, shares of stock or Indebtedness of any Person existing at the time such Person becomes a Restricted Subsidiary or created, incurred, issued or assumed in connection with the acquisition of any such Person;

 

(2)                                  any Lien on any Principal Property created, incurred, issued or assumed at or prior to the time such property became a Principal Property or existing at the time of acquisition of such Principal Property by the Company or a Restricted Subsidiary, whether or not assumed by the Company or such Restricted Subsidiary; provided that no such Lien will extend to any other Principal Property of the Company or any Restricted Subsidiary;

 

(3)                                  any Lien on any Principal Property of any Restricted Subsidiary to secure Indebtedness owing by it to the Company or to another Restricted Subsidiary;

 

(4)                                  any Lien on any Principal Property of the Company to secure Indebtedness owing by it to a Restricted Subsidiary;

 

(5)                                  any Lien on any Principal Property or other assets of the Company or any Restricted Subsidiary existing on the date of the indenture, or arising thereafter pursuant to contractual commitments entered into prior to the date of this Indenture;

 

(6)                                  any Lien on all or any part of any Principal Property (including any improvements or additions to improvements on a Principal Property), or on any shares of stock or Indebtedness of any Restricted Subsidiary directly or indirectly owning or operating such Principal Property, where such Principal Property is hereafter acquired, developed, expanded or constructed by the Company or any Subsidiary, to secure the payment of all or any part of the purchase price, cost of acquisition or any cost of development, expansion or construction of such Principal Property or of improvements or additions to improvements thereon (or to secure any Indebtedness incurred by the Company or a Subsidiary for the purpose of financing all or any part of the purchase price, cost of acquisition or cost of development, expansion or construction thereof or of improvements or additions to improvements thereon), in each case including interest thereon and fees and expenses, including premiums, associated therewith, created prior to, at the time of, or within 360 days after the later of, the acquisition, development, expansion or completion of construction (including construction of improvements or additions to improvements thereon), or commencement of full operation of such Principal Property; provided that no such Lien will extend to any other Principal Property of the Company or a Restricted Subsidiary other than in the case of any such construction, improvement, development, expansion or addition to improvement, all or any part of any other

 

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Principal Property on which the Principal Property so constructed, developed or expanded, or the improvement or addition to improvement, is located;

 

(7)                                  any Lien on any Principal Property or other assets of the Company or any Restricted Subsidiary created for the sole purpose of extending, renewing, altering or refunding any of the foregoing Liens, provided that the Indebtedness secured thereby will not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal, alteration or refunding, plus an amount necessary to pay fees and expenses, including premiums, related to such extensions, renewals, alterations or refundings, and that such extension, renewal, alteration or refunding Lien will be limited to all or any part of the same Principal Property and improvements and additions to improvements thereon and/or shares of stock and Indebtedness of a Restricted Subsidiary which secured the Lien extended, renewed, altered or refunded or either of such property or shares of stock or Indebtedness; and

 

(8)                                  any Lien on any Principal Property or on any shares of stock or Indebtedness of any Restricted Subsidiary created, incurred, issued or assumed to secure Indebtedness of the Company or any Restricted Subsidiary which would otherwise be subject to the foregoing restrictions, in an aggregate amount which, together with the aggregate principal amount of other Indebtedness secured by Liens on any Principal Property or on any shares of stock or Indebtedness of any Restricted Subsidiary then outstanding (excluding Indebtedness secured by Liens permitted under the foregoing exceptions) would not then exceed 10% of Consolidated Net Tangible Assets.

 

For purposes of the foregoing, the giving of a guarantee that is secured by a Lien on a Principal Property or on shares of stock or Indebtedness of any Restricted Subsidiary, and the creation of a Lien on a Principal Property or on shares of stock or Indebtedness of any Restricted Subsidiary to secure Indebtedness that existed prior to the creation of such Lien, will be deemed to involve the creation of Indebtedness in an amount equal to the principal amount guaranteed or secured by such Lien but the amount of Indebtedness secured by Liens on any Principal Property and shares of stock and Indebtedness of Restricted Subsidiaries will be computed without cumulating the underlying Indebtedness with any guarantee thereof or Lien securing the same.

 

ARTICLE ELEVEN

 

REDEMPTION OF SECURITIES

 

SECTION 1101.        Applicability of Article.

 

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified, as contemplated by Section 301 for such Securities) in accordance with this Article.

 

SECTION 1102.        Election to Redeem; Notice to Trustee.

 

The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such

 

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Securities. In case of any redemption at the election of the Company of the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.

 

SECTION 1103.        Selection by Trustee of Securities to Be Redeemed.

 

If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.

 

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.

 

The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

 

SECTION 1104.        Notice of Redemption.

 

Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.

 

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All notices of redemption shall state:

 

(1)    the Redemption Date,

 

(2)    the Redemption Price,

 

(3)    if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,

 

(4)    that on the Redemption Date the Redemption Price shall become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon shall cease to accrue on and after said date,

 

(5)    the place or places where each such Security is to be surrendered for payment of the Redemption Price,

 

(6)    that the redemption is for a sinking fund, if such is the case,

 

(7)    the CUSIP number, if any, relating to such Securities, and

 

(8)    if the redemption or notice thereof is subject to one or more conditions, a statement to such effect and the condition or conditions precedent.

 

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s written request, by the Trustee in the name and at the expense of the Company and shall be irrevocable.

 

SECTION 1105.        Deposit of Redemption Price.

 

On or before 10:00 a.m., New York City time, on the Redemption Date, the Company shall deposit with the Trustee an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.

 

SECTION 1106.        Securities Payable on Redemption Date.

 

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued and unpaid interest to, but not including the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to

 

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the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

SECTION 1107.        Securities Redeemed in Part.

 

Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

 

SECTION 1108.        Change of Control Repurchase Event.

 

If applicable to any series of Security, upon the occurrence of a Change of Control Repurchase Event, unless the Company has exercised its right to redeem the Securities of that series as set forth in this Article Eleven, the Company shall make an offer to each holder of the Securities of each such series to repurchase all or any part (in multiples of $1,000 with no Security of a principal amount of $2,000 or less purchased in part) of that holder’s Securities of that series at a repurchase price in cash equal to 101% of the aggregate principal amount of the Securities repurchased plus any accrued and unpaid interest on the Securities repurchased to, but not including, the date of repurchase.

 

Within 45 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any Change of Control but after the public announcement of the Change of Control, the Company shall mail a notice to each holder of Securities of each such series, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Change of Control Repurchase Securities on the payment date specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control occurring on or prior to the payment date specified in the notice.

 

The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Change of Control Repurchase Securities as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Change of Control Repurchase

 

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Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations under the Change of Control Repurchase Event provisions of such Securities by virtue of such conflict.

 

On the repurchase date following a Change of Control Repurchase Event, the Company shall, to the extent lawful:

 

(1)    accept for payment all Change of Control Repurchase Securities or portions of such Securities properly tendered pursuant to the Company’s offer;

 

(2)    deposit with the Trustee or the paying agent, as applicable, an amount equal to the aggregate purchase price in respect of all Change of Control Repurchase Securities or portions of such Securities properly tendered; and

 

(3)    deliver or cause to be delivered to the Trustee or paying agent, as applicable, the Change of Control Repurchase Securities properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of the Notes being purchased by the Company.

 

The Trustee or the paying agent, as applicable, shall promptly pay to each holder of the Change of Control Repurchase Securities properly tendered the purchase price for such Securities, and the Trustee shall promptly authenticate and deliver to each holder a new Security equal in principal amount to any unpurchased portion of any Change of Control Repurchase Security surrendered; provided that each new Security shall be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof.

 

The Company shall not be required to make an offer to repurchase any Change of Control Repurchase Securities upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company, and such third party purchases all Securities properly tendered and not withdrawn under its offer.

 

The foregoing provisions of this Section may be waived or modified with the written consent of the holders of a majority in principal amount of the Securities of any series which, in accordance with its terms, is subject to this Section.

 

SECTION 1109.        Tax Redemption.

 

The Securities shall be subject to redemption at any time, in whole but not in part, at a redemption price equal to 100% of the principal amount thereof together with accrued and unpaid interest to, but not including, the date fixed for redemption, upon the giving of a notice as described below, if the Company determines that:

 

(1)    as a result of (A) any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of Canada (or the jurisdiction of organization of the Company’s successor) or of any political subdivision or taxing authority thereof or therein affecting taxation, or (B) any change in the application or interpretation of such laws, regulations or rulings by any legislative body, court, governmental agency or regulatory authority (including a holding by a court of

 

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competent jurisdiction) of a Relevant Taxing Jurisdiction, which change or amendment is announced or becomes effective on or after the later of (i) the date of the offering document of any such Securities, or (ii) if applicable, the date a party organized in a jurisdiction other than Canada becomes the Company’s successor, the Company or such successor, as applicable, has or will become obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of that series; or

 

(2)    on or after the later of (i) the date of the offering document for any such series of Securities, or (ii) if applicable, the date a party organized in a jurisdiction other than Canada becomes the Company’s successor, any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in, Canada (or the jurisdiction of organization of the Company’s successor) or any political subdivision or taxing authority thereof or therein, including any of those actions specified in Section 1109(1), whether or not such action was taken or such decision was rendered with respect to the Company or such successor, as applicable, or any change, amendment, application or interpretation will be officially proposed, which, in any such case, in the Opinion of Counsel, will result in the Company, or the successor, as applicable, becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of that series,

 

and, in any such case, the Company determines that such obligation cannot be avoided by the use of reasonable measures available to it (which shall not include the substitution of an obligor in respect of the Securities).

 

In the event that the Company elects to redeem the Securities of any series pursuant to the provisions set forth in this Section, the Company will deliver to the Trustee an Officers’ Certificate, stating that it is entitled to redeem such Securities pursuant to the terms of this Section.

 

Notice of intention to redeem the Securities as provided above will be given not more than 60 nor less than 30 days prior to the date fixed for redemption and will specify the date fixed for redemption.

 

ARTICLE TWELVE

 

SINKING FUNDS

 

SECTION 1201.        Applicability of Article.

 

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.

 

The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms

 

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of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.

 

SECTION 1202.        Satisfaction of Sinking Fund Payments with Securities.

 

The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

 

SECTION 1203.        Redemption of Securities for Sinking Fund.

 

Not less than ten days prior to each sinking fund payment date for any Securities, the Company shall deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and shall also deliver to the Trustee any Securities to be so delivered. Not less than two days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

 

ARTICLE THIRTEEN

 

DEFEASANCE AND COVENANT DEFEASANCE

 

SECTION 1301.        Company’s Option to Effect Defeasance or Covenant Defeasance.

 

The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.

 

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SECTION 1302.        Defeasance and Discharge.

 

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on, and any Additional Amounts with respect to, such Securities when payments are due, (2) the Company’s obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities.

 

SECTION 1303.        Covenant Defeasance.

 

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (1) the Company shall be released from its obligations under Article 8 and Sections 1005 and 1008 and any covenants provided pursuant to Sections 301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Section 501(4) (with respect to any of Article 8, Sections 1005 and 1008 and any such covenants provided pursuant to Section 301(18), 901(2) or 901(7) and 501(8)) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Sections 501(4) and 1008), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.

 

SECTION 1304.        Conditions to Defeasance or Covenant Defeasance.

 

The following shall be the conditions to the application of Section 1302 or Section 1303 to any Securities or any series of Securities, as the case may be:

 

(1)    The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by

 

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Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms shall provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on, and any Additional Amounts with respect to, such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities.

 

(2)    In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating in respect of U.S. Federal income tax that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable U.S. Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to U.S. Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel or ruling from the Canada Revenue Agency to the effect that Holders of such Securities will not recognize income, gain or loss for Canadian federal, provincial or territorial income and other Canadian tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Canadian federal, provincial or territorial and other Canadian income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit, Defeasance and discharge had not occurred (and for the purposes of such Canadian Opinion of Counsel, counsel will assume that holders of such securities include holders who are not resident in Canada).

 

(3)    In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel or ruling from the Canada Revenue Agency to the effect that the Holders of such Securities will not recognize income, gain or loss for Canadian federal, provincial or territorial income and other Canadian tax purposes or for U.S. Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Canadian federal, provincial or territorial income and other Canadian tax and U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and Covenant Defeasance had not occurred (and for the purposes of such Canadian Opinion of Counsel, counsel will

 

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assume that holders of such securities include holders who are not resident in Canada).

 

(4)    The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.

 

(5)    No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).

 

(6)    The Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) on the date of such deposit and after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally.

 

(7)    Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).

 

(8)    Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.

 

(9)    Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.

 

(10)  The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.

 

SECTION 1305.        Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions.

 

Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and

 

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interest, but money so held in trust need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.

 

Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations held by it as provided in Section 1304 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.

 

SECTION 1306.        Reinstatement.

 

If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on, or any Additional Amounts with respect to, any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.

 

ARTICLE FOURTEEN

 

GUARANTEE OF GUARANTEED SECURITIES

 

SECTION 1401.        Guarantee.

 

Each Guarantor hereby unconditionally and irrevocably guarantees to each Holder of a Guaranteed Security of each series authenticated and delivered by the Trustee on behalf of each such Holder, the due and punctual payment of the principal of, premium, if any, and interest on such Guaranteed Security, the due and punctual payment of any Additional Amounts that may be payable with respect to such Guaranteed Security, and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether on the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of this Indenture. In case of the failure of the Company punctually to make any such payment of principal, premium, if any, or interest,

 

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or any Additional Amounts that may be payable with respect to any Guaranteed Security, or any such sinking fund or analogous payment, each Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether on the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.

 

Each Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Guaranteed Security or this Indenture, any failure to enforce the provisions of any Guaranteed Security or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto or hereto, by the Holder of any Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however , that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of each Guarantor, increase the principal amount of any Guaranteed Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Guaranteed Security or the indebtedness evidenced thereby or with respect to any Additional Amounts that may be payable with respect to such Guaranteed Security or any sinking fund or analogous payment required under any Guaranteed Security and all demands whatsoever, and covenants that its obligations under this Article Fourteen and the Guarantees will not be discharged except by payment in full of the principal of, premium, if any, and interest on and any Additional Amounts that may be payable with respect to the Guaranteed Securities.

 

Each Guarantor shall be subrogated to all rights of the Holder of any Guaranteed Security and the Trustee against the Company in respect of any amounts paid to such Holder by each Guarantor pursuant to the provisions of this Article Fourteen and its Guarantee of such Security; provided, however , that no Guarantor shall be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Guaranteed Securities of the same series issued under this Indenture and any Additional Amounts with respect to such Guaranteed Securities shall have been paid in full.

 

Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Securities guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed by the applicable Guarantor without rendering the Guarantee, as it relates to the Guarantor, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer, corporate benefit, financial assistance or similar laws affecting the rights of creditors generally.

 

SECTION 1402.        Execution and Delivery of Guarantees.

 

The Guarantees to be endorsed on the Guaranteed Securities of each series shall include the terms of the guarantees set forth in Section 1401 and any other terms that may

 

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be set forth in the form established pursuant to Section 206 with respect to such series. Each Guarantor hereby agrees to execute the Guarantees, in a form established pursuant to Section 206, to be endorsed on each Guaranteed Security authenticated by the Trustee.

 

The Guarantees shall be executed on behalf of each Guarantor by an authorized signatory of the Guarantor. The signature of any authorized signatory on the Guarantees may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Guarantees.

 

Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper signatories of the Guarantor shall bind the Guarantor, notwithstanding that such individuals or any of them have ceased to have such authority prior to the authentication and delivery of the Securities on which such Guarantees are endorsed or did not have such authority at the date of such Securities.

 

The delivery of any Guaranteed Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor. Each Guarantor hereby agrees that its Guarantee set forth in Section 1401 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Guaranteed Security.

 

SECTION 1403. Additional Guarantees.

 

If any Subsidiary shall be a Credit Agreement Guarantor at a time when such Subsidiary is not a Guarantor, the Company shall cause such Subsidiary to execute a Supplemental Indenture pursuant to which such Subsidiary shall become a Guarantor hereunder.

 

SECTION 1404. Release of Guarantees.

 

A Guarantor will be released and relieved of its obligations under its Guarantee in respect of the Guaranteed Securities, and such Guarantee will be terminated, upon Company Order (i) if the Guarantor is no longer a Credit Agreement Guarantor or will be released and relieved of its obligations under the Credit Agreement concurrently with the release of the Guarantee, and (ii) upon satisfaction and discharge, defeasance or covenant defeasance under the terms of this Indenture.

 

ARTICLE FIFTEEN

 

MISCELLANEOUS PROVISIONS

 

SECTION 1501. Consent to Jurisdiction and Service of Process.

 

The Company and each Non-U.S. Guarantor irrevocably submits to the jurisdiction of any New York State or Federal court sitting in The City of New York over any suit, action or proceeding arising out of or relating to this Indenture or any Security. The Company and each Non-U.S. Guarantor irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action

 

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or proceeding brought in such a court has been brought in any inconvenient forum. The Company and each Non-U.S. Guarantor agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon the Company and each Non-U.S. Guarantor, as the case may be, and may be enforced in the courts of Canada (or any other courts to the jurisdiction of which the Company or the relevant Non-U.S. Guarantor is subject) by a suit upon such judgment, provided that service of process is effected upon the Company and each Non-U.S. Guarantor in the manner specified in the following paragraph or as otherwise permitted by law; provided, however , that the Company and each Non-U.S. Guarantor does not waive, and the foregoing provisions of this sentence shall not constitute or be deemed to constitute a waiver of, (i) any right to appeal any such judgment, to seek any stay or otherwise to seek reconsideration or review of any such judgment or (ii) any stay of execution or levy pending an appeal from, or a suit, action or proceeding for reconsideration or review of, any such judgment.

 

As long as any of the Securities remain outstanding, the Company and each Non-U.S. Guarantor will each at all times have an authorized agent in the Borough of Manhattan, The City of New York upon whom process may be served in any legal action or proceeding arising out of or relating to the Indenture, any Security or any Guarantee on any Security. Service of process upon such agent and written notice of such service mailed or delivered to the Company or the relevant Non-U.S. Guarantor shall to the extent permitted by law be deemed in every respect effective service of process upon the Company or the relevant Non-U.S. Guarantor in any such legal action or proceeding. The Company and each Non-U.S. Guarantor hereby appoint CT Corporation System as its agent for such purpose, and covenants and agrees that service of process in any such legal action or proceeding may be made upon it at the office of such agent at 111 Eighth Avenue, 13th Floor, New York, New York 10011 (or at such other address or addresses in the Borough of Manhattan, The City of New York, as (i) the Company may designate to the Trustee for itself, (ii) the Company may designate to the Trustee for any Non-U.S. Guarantor which is a Subsidiary and (iii) any Non-U.S. Guarantor may designate to the Trustee for itself, in each case in writing).

 

The Company and each Non-U.S. Guarantor hereby consent to process being served in any suit, action or proceeding of the nature referred to in the preceding paragraphs by service upon such agent together with the mailing of a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to the address of the Company set forth in the first paragraph of this instrument or to any other address of which the Company or such Non-U.S. Guarantor shall have given written notice to the Trustee. The Company and each Non-U.S. Guarantor irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of any such service (but does not waive any right to assert lack of subject matter jurisdiction) and agrees that such service (i) shall be deemed in every respect effective service of process upon the Company and each Non-U.S. Guarantor in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by law, be taken and held to be valid personal service upon and personal delivery to the Company and each Non-U.S. Guarantor so served.

 

Nothing in this Section shall affect the right of the Trustee or any Holder to serve process in any manner permitted by law or limit the right of the Trustee to bring proceedings against the Company in the courts of any jurisdiction or jurisdictions.

 

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SECTION 1502. Indenture and Securities Solely Corporate Obligations.

 

No recourse under or upon any obligation, covenant or agreement of this Indenture, any supplemental indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or any Guarantor or of any successor corporation, either directly or through the Company or any Guarantor, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors, as such, of the Company or any Guarantor or of any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or any of the Securities or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of such Securities.

 

SECTION 1503. Certain Provisions Concerning the Payment of Interest.

 

In the event that any provision of this Indenture would oblige the Company or any Guarantor to make any payment of interest or any other payment which is construed by a court of competent jurisdiction to be interest in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by the Trustee or the Holders, of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada) or any other applicable statute), then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the Trustee or the Holders, or any of them, of interest at a criminal rate.

 

Whenever interest is calculated, pursuant to any provision of this Agreement, on the basis of a period other than a calendar year, the annual rate of interest to which such rate of interest as determined by such calculation is equivalent, for purposes of the Interest Act (Canada), is such rate as so calculated multiplied by a fraction, the numerator of which is the actual number of days in the particular calendar year in respect of which the calculation is made, and the denominator of which is the number of days used in the calculation.

 

SECTION 1504. Execution in Counterparts.

 

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution

 

85



 

and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 


 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

 

Kinross Gold Corporation

 

 

 

By:

/s/ Tye W. Burt

 

 

Name: Tye W. Burt

 

 

Title:   President and CEO

 

 

 

 

 

By:

/s/ Paul H. Barry

 

 

Name: Paul H. Barry

 

 

Title:   EVP and CFO

 

 

 

 

 

Aurelian Resources Inc.

 

 

 

By:

/s/ Brant E. Hinze

 

 

Name: Brant E. Hinze

 

 

Title:   President

 

 

 

 

 

BGO (Bermuda) Ltd.

 

 

 

By:

/s/ Andres Verdugo

 

 

Name: Andres Verdugo

 

 

Title:   Director, President

 

 

 

 

 

Crown Resources Corporation

 

 

 

By:

/s/ Lauren M. Roberts

 

 

Name: Lauren M. Roberts

 

 

Title:   President

 

 

 

 

 

Fairbanks Gold Mining, Inc.

 

 

 

By:

/s/ Lauren M. Roberts

 

 

Name: Lauren M. Roberts

 

 

Title:   President

 

Signature Page to Indenture

 


 

 

Kinross Brasil Mineraçao S.A.

 

 

 

 

 

By:

/s/ António Carlos S. Marinho

/s/ Alessandro Lucioli Nepi

 

Name:

António Carlos S. Marinho

Alessandro Lucioli Nepi

 

Title:

Vice-President Brazil

 

 

 

Vice-President & General Counsel

 

 

 

 

Kinross Gold U.S.A., Inc.

 

 

 

 

 

By:

/s/ Lauren M. Roberts

 

Name:

Lauren M. Roberts

 

Title:

President

 

 

 

 

 

Melba Creek Mining, Inc.

 

 

 

 

 

By:

/s/ Lauren M. Roberts

 

Name:

Lauren M. Roberts

 

Title:

President

 

 

 

 

 

Compania Minera Mantos de Oro

 

 

 

 

 

By:

/s/ Andres Verdugo

 

Name:

Andres Verdugo

 

Title:

Director & Attorney

 

 

 

 

 

Compania Minera Maricunga

 

 

 

 

 

By:

/s/ Andres Verdugo

 

Name:

Andres Verdugo

 

Title:

Director & Attorney

 

 

 

 

 

Red Back Mining Mauritania No. 2 Limited

 

 

 

 

 

By:

/s/ Brant E. Hinze

 

Name:

Brant E. Hinze

 

Title:

CEO

 

Signature Page to Indenture

 



 

 

Red Back Mining Inc.

 

 

 

By:

/s/ Juliana Lam

 

 

Name: Juliana Lam

 

 

Title:   VP, Finance

 

 

 

 

 

Round Mountain Gold Corporation

 

 

 

By:

/s/ Lauren M. Roberts

 

 

Name: Lauren M. Roberts

 

 

Title:   President

 

Signature Page to Indenture

 



 

 

WELLS FARGO BANK, NATIONAL

 

ASSOCIATION, AS TRUSTEE

 

 

 

By

/s/ Martin Reed

 

 

Martin Reed

 

 

Vice President

 

Signature Page to Indenture

 




Exhibit 4.5

 

EXECUTION COPY

 

REGISTRATION RIGHTS AGREEMENT

 

dated as of August 22, 2011

 

between

 

Kinross Gold Corporation

 

the Guarantors specified herein

 

and

 

Merrill Lynch, Pierce, Fenner & Smith Incorporated

 

Morgan Stanley & Co. LLC

 

UBS Securities LLC

 

as Representatives of the several Initial Purchasers

 



 

This Registration Rights Agreement (this “ Agreement ”) is made and entered into as of August   , 2011, between Kinross Gold Corporation, a corporation organized under the laws of the Province of Ontario (the “ Company ”), and the subsidiaries of the Company that are initially Guarantors (as defined below), on the one hand, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. LLC and UBS Securities LLC, as representatives of the several Initial Purchasers (collectively, the “ Initial Purchasers ”) named in Schedule I to the Purchase Agreement (as defined below), on the other hand. Pursuant to the Purchase Agreement, the Initial Purchasers have agreed to purchase, severally and not jointly, the Company’s 3.625% Senior Notes due 2016, 5.125% Senior Notes due 2021 and 6.875% Senior Notes due 2041 (the “ Notes ”). The Notes are fully and unconditionally guaranteed by the Guarantors (the “ Guarantees ”). The Notes and the Guarantees are herein collectively referred to as the “ Securities .”

 

This Agreement is made pursuant to the Purchase Agreement, dated August 15, 2011 (the “ Purchase Agreement ”), among the Company, the initial Guarantors and the Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii) for the benefit of the holders from time to time of Transfer Restricted Securities (as defined herein), including the Initial Purchasers. In order to induce the Initial Purchasers to purchase the Notes, the Issuers have agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Initial Purchasers set forth in the Purchase Agreement.

 

The parties hereby agree as follows:

 

1.                                       Certain Definitions . For purposes of this Agreement, the following terms shall have the following respective meanings:

 

Additional Interest ” shall have the meaning assigned thereto in Section 2(c) hereof.

 

Base Interest ” shall mean the interest that would otherwise accrue on the Notes under the terms thereof and the Indenture, without giving effect to the provisions of this Agreement.

 

The term “ broker-dealer ” shall mean any broker or dealer registered with the Commission under the Exchange Act.

 

Canadian Prospectus means a prospectus of the Issuers included in an Exchange Registration Statement or a Shelf Registration Statement under the MJDS (with such additions and deletions as are required or permitted under the MJDS) filed and receipted (or for which a notification of clearance has been obtained) under Ontario Securities Laws.

 

Closing Date ” shall mean the date on which the Securities are initially issued.

 

Commission ” shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.

 



 

Effective Time ,” in the case of (i) an Exchange Registration, shall mean the time and date as of which the Commission declares the Exchange Registration Statement effective or as of which the Exchange Registration Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean the time and date as of which the Commission declares the Shelf Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes effective.

 

Electing Holder ” shall mean any holder of Transfer Restricted Securities that has returned a completed and signed Notice and Questionnaire to the Company (or its counsel) in accordance with Section 3(b)(ii) or 3(b)(iii) hereof.

 

Exchange Act ” shall mean the United States Securities Exchange Act of 1934, as amended.

 

Exchange Offer ” shall have the meaning assigned thereto in Section 2(a) hereof.

 

Exchange Registration ” shall have the meaning assigned thereto in Section 3(a) hereof.

 

Exchange Registration Statement ” shall have the meaning assigned thereto in Section 2(a) hereof.

 

Exchange Securities ” shall have the meaning assigned thereto in Section 2(a) hereof.

 

Guarantors ” means Aurelian Resources Inc., BGO (Bermuda) Ltd., Kinross Brasil Minerçao S.A., Kinross Gold U.S.A. Inc., Crown Resources Corporation, Fairbanks Gold Mining, Inc., Melba Creek Mining, Inc., Compania Minera Mantos de Oro, Compania Minera Maricunga, Red Back Mining Mauritania No. 2 Limited, Red Back Mining Inc. and Round Mountain Gold Corporation, and any other subsidiary of the Company that hereafter becomes a Guarantor under the Indenture, that in each case remains a Guarantor under the Indenture as of any relevant time.

 

The term “ holder ” shall mean the Initial Purchasers and other persons who acquire Transfer Restricted Securities from time to time (including any successors or assigns), in each case for so long as such person owns any Transfer Restricted Securities; provided that for purposes of any obligation of the Company to give notice to any holders, “ holder ” shall mean the record owner of Transfer Restricted Securities.

 

Indenture ” shall mean the Indenture dated as of August   , 2011 between the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee (the “ Trustee ”), as supplemented by the First Supplemental Indenture dated as of August   , 2011, as the same shall be amended or supplemented from time to time.

 

Initial Purchasers ” shall have the meaning ascribed to such term in the first paragraph of this Agreement.

 

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MJDS means the U.S./Canada Multijurisdictional Disclosure System adopted by the Commission and Canadian securities regulators.

 

Notice and Questionnaire means a Notice of Registration Statement and Selling Securityholder Questionnaire substantially in the form of Exhibit A hereto.

 

Ontario Securities Laws ” shall mean the Securities Act (Ontario) and the rules, regulations and national, multijurisdictional and local instruments and published policy statements applicable in the province of Ontario.

 

OSC means the Ontario Securities Commission.

 

The term “ person ” shall mean a corporation, association, partnership, organization, business, individual, government or political subdivision thereof or governmental agency.

 

Registration Default ” shall have the meaning assigned thereto in Section 2(c) hereof.

 

Registration Expenses ” shall have the meaning assigned thereto in Section 4 hereof.

 

Resale Period ” shall have the meaning assigned thereto in Section 2(a) hereof.

 

Restricted Holder ” shall mean (i) a holder that is an affiliate of an Issuer within the meaning of Rule 405, (ii) a holder who acquires Exchange Securities outside the ordinary course of such holder’s business, (iii) a holder who has arrangements or understandings with any person to participate in the Exchange Offer for the purpose of distributing Exchange Securities, and (iv) a holder that is a broker-dealer, but only with respect to Exchange Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for Transfer Restricted Securities acquired by the broker-dealer directly from the Issuer.

 

Rule 144 ,” “ Rule 405 ” and “ Rule 415 ” shall mean, in each case, such rule promulgated under the Securities Act (or any successor provision), as the same shall be amended from time to time.

 

Securities Act ” shall mean the United States Securities Act of 1933, as amended.

 

Shelf Registration ” shall have the meaning assigned thereto in Section 2(b) hereof.

 

Shelf Registration Statement ” shall have the meaning assigned thereto in Section 2(b) hereof.

 

Transfer Restricted Securities ” shall mean each Security until:

 

3



 

(1)                                  the date on which such Security has been exchanged by a person other than a broker-dealer for an Exchange Security in the Exchange Offer;

 

(2)                                  following the exchange by a broker-dealer in the Exchange Offer of a Security for an Exchange Security, the date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Registration Statement;

 

(3)                                  the date on which such Security has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement; or

 

(4)                                  such Security shall cease to be outstanding.

 

Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, or any successor thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall be amended from time to time.

 

Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision.

 

2.                                       Registration Under the Securities Act .

 

(a)                                  Except as set forth in Section 2(b) below, the Company and the Guarantors agree to file under the Securities Act a registration statement on an appropriate form relating to an offer to exchange (such registration statement, the “ Exchange Registration Statement ”, and such offer, the “ Exchange Offer ”) any and all of the Notes for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors which debt securities and guarantees are substantially identical to the Notes and the Guarantees (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain provisions for the additional interest contemplated in Section 2(c) below (such new debt securities, together with such guarantees, hereinafter called “ Exchange Securities ”). The Exchange Securities will be issued as evidence of the same continuing indebtedness of the Company and will not constitute the creation of new indebtedness. The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act on or prior to 360 days after the Closing Date. The Company and the Guarantors further agree to use their commercially reasonable efforts to commence and complete the Exchange Offer on or prior to 30 business days after such registration statement has become effective, hold the Exchange Offer open for not less than 20 business days and exchange Exchange Securities for all Transfer Restricted Securities that have been properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. The Exchange Offer will be deemed to have been “completed” only if the Exchange Securities received by holders other than Restricted Holders in the Exchange Offer for Transfer Restricted Securities are, upon receipt, transferable by each such holder without restriction under

 

4



 

the Securities Act and the Exchange Act and without material restrictions under blue sky or securities laws of a substantial majority of the States of the United States. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company having exchanged the Exchange Securities for all outstanding Transfer Restricted Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Transfer Restricted Securities that have been properly tendered and not withdrawn before the expiration of the Exchange Offer, which shall be on a date that is not less than 20 business days following the commencement of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer that has acquired such Transfer Restricted Securities for its own account as a result of market-making activities or other trading activities and not directly from an Issuer, and (y) to use commercially reasonable efforts keep such Exchange Registration Statement effective for a period (the “ Resale Period ”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 180 th  day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Transfer Restricted Securities, other than Transfer Restricted Securities acquired from the Company. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and (e) hereof.

 

(b)                                  If (i) on or prior to the time the Exchange Offer is completed, existing Commission interpretations are changed such that the debt securities received by holders other than Restricted Holders in the Exchange Offer for Transfer Restricted Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within the applicable time period set forth in section 2(a) hereof or (iii) the Exchange Offer is not available to any holder of the Securities in the United States (other than Restricted Holders), the Company and the Guarantors shall, in lieu of (or, in the case of clause (iii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their commercially reasonable efforts to file with the Commission, a “shelf” registration statement on an appropriate form providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Transfer Restricted Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “ Shelf Registration ” and such registration statement, the “ Shelf Registration Statement ”). The Company and the Guarantors agree to use their commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective on or prior to 360 days after the Closing Date and to keep such Shelf Registration Statement continuously effective for a period ending on the earlier of the first anniversary of the Effective Time or such time as there are no longer any Transfer Restricted Securities outstanding, provided, however , that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Transfer Restricted Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Transfer Restricted Securities that is not then an Electing Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Transfer Restricted Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement, provided, however , that nothing in this clause (y) shall relieve any such

 

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holder of the obligation to return a completed and signed Notice and Questionnaire to the Company and the Guarantors in accordance with Section 3(b)(iii) hereof. The Company and the Guarantors further agree to supplement or make amendments to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company and the Guarantors agree to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission.

 

(c)                                   In the event that (i) the Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or prior to the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (ii) the Exchange Offer has not been completed within 30 business days after the initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be made), or (iii) any Exchange Registration Statement or Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective but thereafter ceases to be effective or usable in connection with resales of Transfer Restricted Securities during the time periods specified herein, or (iv) the Company and the Guarantors require holders to refrain from disposing of their Securities or Exchange Securities under the circumstances described in Section 3(g) and that suspension period exceeds 60 days in one instance or 90 days in the aggregate during any consecutive 12-month period (each such event referred to in clauses (i) through (iv), a “ Registration Default ” and each period during which a Registration Default has occurred and is continuing, a “ Registration Default Period ”), then, as the sole remedy for such Registration Default, additional interest (“ Additional Interest ”), in addition to the Base Interest, shall accrue on the Notes that are Transfer Restricted Securities at a per annum rate of 0.25% with respect to the first 90-day period immediately following the occurrence of the first Registration Default. The amount of the Additional Interest will increase by an additional per annum rate of 0.25% with respect to each subsequent 90 day Registration Default Period until all Registration Defaults have been cured, up to a maximum per annum rate of 0.50% for all Registration Defaults. Following the cure of all Registration Defaults, the accrual of Additional Interest will cease. The Company and the Guarantors shall pay all Additional Interest, if any, in the manner and on the dates specified in the Indenture.

 

(d)                                  The Company and the Guarantors shall use their commercially reasonable efforts to take all actions necessary or advisable to be taken by them to ensure that the transactions contemplated herein are effected as so contemplated. Such actions may include amending and supplementing the prospectus and amending the Exchange Registration Statement or Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Exchange Registration Statement or Shelf Registration Statement.

 

(e)                                   Any reference herein to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement

 

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as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.

 

(f)                                    The Company and the Guarantors will (i) cause any Exchange Registration Statement and Shelf Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto to comply in all material respects with the Securities Act and the rules and regulations thereunder, (ii) cause any Exchange Registration Statement and Shelf Registration Statement and any amendment thereto, when it becomes effective, not to contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Registration Statement or Shelf Registration Statement, and any supplement to such prospectus, not to include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

3.                                       Registration Procedures .

 

If the Company and the Guarantors file a registration statement pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:

 

(a)                                  In connection with the obligations of the Company and the Guarantors with respect to the registration of Exchange Securities as contemplated by Section 2(a) (the “ Exchange Registration ”), if applicable, the Company and the Guarantors shall, as soon as practicable (or as otherwise specified):

 

(i)                                      prepare and file with the Commission an Exchange Registration Statement on an appropriate form of registration statement which may be utilized by the Company and the Guarantors and which shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers that have not acquired Transfer Restricted Securities directly from the Issuers during the Resale Period to be effected as contemplated by Section 2(a), and use its commercially reasonable efforts to cause such Exchange Registration Statement to become effective on or prior to 360 days after the Closing Date;

 

(ii)                                   as soon as practicable prepare and file with the Commission such amendments and supplements to such Exchange Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Exchange Registration Statement for the periods and purposes contemplated in Section 2(a) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Exchange Registration Statement, and promptly provide each broker-dealer holding Exchange Securities not acquired directly from an Issuer with such number of copies of the prospectus included therein (as then amended or supplemented), in conformity in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder, as such broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in connection with resales of Exchange Securities;

 

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(iii)                                promptly notify each broker-dealer that has requested or, to the knowledge of the Company and the Guarantors, received copies of the prospectus included in such registration statement, and confirm such advice in writing, (A) in cases where a broker-dealer has specifically requested such information, when such Exchange Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, (B) with respect to such Exchange Registration Statement or any post-effective amendment, when the same has become effective, (C) in cases where a broker-dealer has specifically requested such information, any request by the Commission or the OSC for amendments or supplements to such Exchange Registration Statement or prospectus or for additional information, (D) of the issuance by the Commission of any stop order suspending the effectiveness of such Exchange Registration Statement or the initiation or threatening of any proceedings for that purpose, (E) of the receipt by the Issuers of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (F) at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or any applicable Ontario Securities Laws or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(iv)                               in the event that the Company and the Guarantors would be required, pursuant to Section 3(a)(iii)(G) above, to notify any broker-dealers holding Exchange Securities, without delay prepare and furnish to each such holder a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and the Ontario Securities Laws, if applicable, and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(v)                                  use their commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;

 

(vi)                               use their commercially reasonable efforts to (A) register or qualify (or obtain an exemption from such registration or qualification) the Exchange Securities under the securities laws or blue sky laws of such jurisdictions in the United States as are contemplated by Section 2(a) no later than the commencement of the Exchange Offer, (B) keep such registrations or qualifications (or the exemptions therefrom) in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and

 

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all other actions as may be reasonably necessary or advisable to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions; provided, however, that none of the Company or any Guarantor shall be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(a)(vi), (2) consent to general service of process in any such jurisdiction or (3) make any changes to its certificate of incorporation or by-laws or any agreement between it and its shareholders;

 

(vii)                            obtain the consent or approval of each governmental agency or authority, whether federal, state, provincial or local, which may be required to effect the Exchange Registration, the Exchange Offer and the offering and sale of Exchange Securities by broker-dealers during the Resale Period;

 

(viii)                         provide CUSIP numbers for all Exchange Securities, not later than the applicable Effective Time; and

 

(ix)                               comply with all applicable rules and regulations of the Commission and make generally available to its securityholders as soon as practicable but no later than eighteen months after the effective date of such Exchange Registration Statement, an earning statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 thereunder).

 

(b)                                  In connection with the obligations of the Company and the Guarantors with respect to the Shelf Registration, if applicable, the Company and the Guarantors shall, as soon as practicable (or as otherwise specified):

 

(i)                                      prepare and file with the Commission a Shelf Registration Statement on an appropriate form of registration statement which may be utilized by the Issuers and which shall register all of the Transfer Restricted Securities for resale by the holders thereof in accordance with such method or methods of disposition as may be specified by such of the holders as, from time to time, may be Electing Holders and use its commercially reasonable efforts to cause such Shelf Registration Statement to become effective on or prior to 360 days after the Closing Date;

 

(ii)                                   not less than 30 calendar days prior to the Effective Time of the Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Transfer Restricted Securities; provided that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Transfer Restricted Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Company and the Guarantors (or their counsel) by the deadline for response set forth therein; and provided, further , that holders of Transfer Restricted Securities shall have at least 28 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Company and the Guarantors (or their counsel);

 

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(iii)                                after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Transfer Restricted Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such holder; provided that the Company and the Guarantors shall not be required to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or to enable such holder to use the prospectus forming a part thereof for resales of Transfer Restricted Securities until 30 days after such holder has returned a completed and signed Notice and Questionnaire to the Company and the Guarantors (or their counsel);

 

(iv)                               as soon as practicable prepare and file with the Commission and, if applicable, the OSC such amendments and supplements to such Shelf Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period specified in Section 2(b) hereof and as may be required by the applicable rules and regulations of the Commission and the OSC and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders copies of any such supplement or amendment simultaneously with or prior to its being used or filed with the Commission and the OSC;

 

(v)                                  comply with the provisions of the Securities Act and any applicable Ontario Securities Laws with respect to the disposition of all of the Transfer Restricted Securities covered by such Shelf Registration Statement in accordance with the intended methods of disposition by the Electing Holders provided for in such Shelf Registration Statement;

 

(vi)                               provide (A) any Electing Holders, (B) the underwriters (which term, for purposes of this Agreement, shall include a person deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act), if any, thereof, (C) any sales or placement agent therefor, (D) counsel for any such underwriter or agent and (E) not more than one counsel for all the Electing Holders, the opportunity to review and provide comments in connection with the preparation of such Shelf Registration Statement, each prospectus included therein or filed with the Commission or, if applicable, the OSC and each amendment or supplement thereto;

 

(vii)                            for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in Section 2(b), make available during reasonable business hours at the Company’s principal place of business or such other reasonable place for inspection by the persons referred to in Section 3(b)(vi) such financial and other information and books and records of the Company and the Guarantors, and cause the officers, employees, counsel and independent chartered accountants of the Company and the Guarantors to respond to such inquiries, as shall be reasonably necessary, in the judgment of the respective counsel referred to in such Section, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however , that each such party shall be required to agree in writing to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Company and the Guarantors as being confidential, until such time as (A) such information becomes a matter of public record

 

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(whether by virtue of its inclusion in such Shelf Registration Statement or otherwise), or (B) such person shall be required to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the requirements of such order, and only after such person shall have given the Company and the Guarantors prompt prior written notice of such requirement);

 

(viii)                         promptly notify each of the Electing Holders, any sales or placement agent therefor and any underwriter thereof (which notification may be made through any managing underwriter that is a representative of such underwriter for such purpose) and confirm such advice in writing, (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed with the Commission or the OSC, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) in cases where an Electing Holder has specifically requested such information in writing, of any comments by the Commission and by the blue sky or securities commissioner or regulator of any state or province with respect thereto or any request by the Commission for amendments or supplements to such Shelf Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) if at any time the representations and warranties of the Company and the Guarantors contemplated by Section 3(b)(xvii) or Section 5 cease to be true and correct in all material respects, (E) of the receipt by the Company and the Guarantors of any notification with respect to the suspension of the qualification of the Transfer Restricted Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (F) if at any time when a prospectus is required to be delivered under the Securities Act or Ontario Securities Laws, that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or any applicable Ontario Securities Laws or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(ix)                               use its commercially reasonable efforts to obtain the withdrawal of (A) any order suspending the effectiveness of such Shelf Registration Statement or any post-effective amendment thereto at the earliest practicable date or (B) the suspension of the qualification of the Transfer Restricted Securities for sale in any jurisdiction;

 

(x)                                  if requested by any managing underwriter or underwriters, any placement or sales agent or any Electing Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the Commission or, if applicable, the OSC and as such managing underwriter or underwriters, such agent or such Electing Holder specifies should be included therein relating to the terms of the sale of such Transfer Restricted Securities, including information with respect to the principal amount of Transfer Restricted

 

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Securities being sold by such Electing Holder or agent or to any underwriters, the name and description of such Electing Holder, agent or underwriter, the offering price of such Transfer Restricted Securities and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such underwriters and with respect to any other terms of the offering of the Transfer Restricted Securities to be sold by such Electing Holder or agent or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment promptly after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment;

 

(xi)                               furnish to each Electing Holder, each placement or sales agent, if any, therefor, each underwriter, if any, thereof and the respective counsel referred to in Section 3(b)(vi) an executed copy (or, in the case of an Electing Holder, a conformed copy) of such Shelf Registration Statement, each such amendment and supplement thereto (in each case including all exhibits thereto (in the case of an Electing Holder of Transfer Restricted Securities, upon request) and documents incorporated by reference therein) and such number of copies of such Shelf Registration Statement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by such Electing Holder, agent or underwriter, as the case may be) and of the prospectus included in such Shelf Registration Statement (including each preliminary prospectus and any summary prospectus), in conformity in all material respects with the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and any applicable Ontario Securities Laws, and such other documents, as such Electing Holder, agent, if any, and underwriter, if any, may reasonably request in order to facilitate the offering and disposition of the Transfer Restricted Securities owned by such Electing Holder, offered or sold by such agent or underwritten by such underwriter and to permit such Electing Holder, agent and underwriter to satisfy the prospectus delivery requirements of the Securities Act and any applicable Ontario Securities Laws; and the Company and the Guarantors hereby consent to the use of such prospectus (including such preliminary and summary prospectus) and any amendment or supplement thereto by each such Electing Holder and by any such agent and underwriter, in each case in the form most recently provided to such person by the Company and the Guarantors, in connection with the offering and sale of the Transfer Restricted Securities covered by the prospectus (including such preliminary and summary prospectus) or any supplement or amendment thereto;

 

(xii)                            use their commercially reasonable efforts to (A) register or qualify (or obtain an exemption from such registration or qualification) the Transfer Restricted Securities to be included in such Shelf Registration Statement under such securities laws or blue sky laws of such jurisdictions in the United States as any Electing Holder and each placement or sales agent, if any, therefor and underwriter, if any, thereof shall reasonably request and ensure that any Transfer Restricted Securities can be offered in a private placement in any provinces of Canada in which any Electing Holders are resident, (B) keep such registrations or qualifications (or the exemptions therefrom) in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions during the period the Shelf Registration is required to remain

 

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effective under Section 2(b) above and for so long as may be necessary to enable any such Electing Holder, agent or underwriter to complete its distribution of Securities pursuant to such Shelf Registration Statement and (C) take any and all other actions as may be reasonably necessary or advisable to enable each such Electing Holder, agent, if any, and underwriter, if any, to consummate the disposition in such jurisdictions of such Transfer Restricted Securities; provided, however , that none of the Company or any Guarantor shall be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(b)(xii), (2) consent to general service of process in any such jurisdiction, or (3) make any changes to its constating documents or by-laws or any agreement between it and its shareholders;

 

(xiii)                         use their commercially reasonable efforts to obtain the consent or approval of each governmental agency or authority, whether federal or state, which may be required to effect the Shelf Registration or the offering or sale in connection therewith or to enable the selling holder or holders to offer, or to consummate the disposition of, their Transfer Restricted Securities in the United States;

 

(xiv)                        unless any Transfer Restricted Securities shall be in book-entry only form, cooperate with the Electing Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold, which certificates, if so required by any securities exchange upon which any Transfer Restricted Securities are listed, shall be penned, lithographed or engraved, or produced by any combination of such methods, on steel engraved borders, and which certificates shall not bear any restrictive legends (except as may be required by Canadian provincial securities laws with respect to Transfer Restricted Securities held by Electing Holders resident in any Canadian province); and, in the case of an underwritten offering, enable such Transfer Restricted Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of the Transfer Restricted Securities;

 

(xv)                           provide CUSIP numbers for all Transfer Restricted Securities, not later than the applicable Effective Time;

 

(xvi)                        enter into one or more underwriting agreements, engagement letters, agency agreements, “best efforts” underwriting agreements or similar agreements, as appropriate, including customary provisions relating to indemnification and contribution, and take such other actions in connection therewith as any Electing Holders aggregating at least a majority in aggregate principal amount of the Transfer Restricted Securities at the time outstanding shall reasonably request in order to expedite or facilitate the disposition of such Transfer Restricted Securities in the United States; provided that the Company and the Guarantors shall not be required to enter into any such agreement more than twice with respect to all of the Transfer Restricted Securities and may delay entering into any such agreement until the consummation of any underwritten public offering in which the Company and the Guarantors shall be engaged provided that such delay is reasonable;

 

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(xvii)                     whether or not an agreement of the type referred to in Section 3(b)(xvi) hereof is entered into and whether or not any portion of the offering contemplated by the Shelf Registration is an underwritten offering or is made through a placement or sales agent or any other entity, (A) make such representations and warranties to the Electing Holders and the placement or sales agent, if any, therefor and the underwriters, if any, thereof in form, substance and scope as are customarily made in connection with an offering of debt securities pursuant to any appropriate agreement or to a registration statement filed on the form applicable to the Shelf Registration; (B) use commercially reasonable efforts to obtain opinions of counsel to the Issuers in customary form and covering such matters, of the type customarily covered by such an opinion as the managing underwriters, if any, or as any Electing Holders of at least a majority in aggregate principal amount of the Transfer Restricted Securities at the time outstanding may reasonably request, addressed to such Electing Holder or Electing Holders and the placement or sales agent, if any, therefor and the underwriters, if any, thereof and dated the effective date of such Shelf Registration Statement (and if such Shelf Registration Statement contemplates an underwritten offering of a part or all of the Transfer Restricted Securities, dated the date of the closing under the underwriting agreement relating thereto); (C) use commercially reasonable efforts to obtain a “cold comfort” letter or letters from the independent chartered accountants of the Company (and the independent chartered accountants of any other entity, to the extent that financial statements of such other entity (or pro forma financial statements which include financial information relating to such other entity) are included or incorporated by reference in the Shelf Registration Statement) addressed to the selling Electing Holders, the placement or sales agent, if any, therefor or the underwriters, if any, thereof, dated (i) the effective date of such Shelf Registration Statement and (ii) the effective date of any prospectus supplement to the prospectus included in such Shelf Registration Statement or post-effective amendment to such Shelf Registration Statement which includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus (and, if such Shelf Registration Statement contemplates an underwritten offering pursuant to any prospectus supplement to the prospectus included in such Shelf Registration Statement or post-effective amendment to such Shelf Registration Statement which includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus, dated the date of the closing under the underwriting agreement relating thereto), such letter or letters to be in customary form and covering such matters of the type customarily covered by letters of such type; (D) deliver such documents and certificates, including officers’ certificates, as may be reasonably requested by any Electing Holders of at least a majority in aggregate principal amount of the Transfer Restricted Securities at the time outstanding or the placement or sales agent, if any, therefor and the managing underwriters, if any, thereof to evidence the accuracy of the representations and warranties made pursuant to clause (A) above or those contained in Section 5(a) hereof and the compliance with or satisfaction of any agreements or conditions contained in the underwriting agreement or other agreement entered into by the Company and the Guarantors; and (E) undertake such obligations relating to expense reimbursement, indemnification and contribution as are provided in Section 6 hereof;

 

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(xviii)                  notify in writing each holder of Transfer Restricted Securities of any proposal by the Company and the Guarantors to amend or waive any provision of this Agreement pursuant to Section 8(h) hereof and of any amendment or waiver effected pursuant thereto, each of which notices shall contain the text of the amendment or waiver proposed or effected, as the case may be;

 

(xix)                        in the event that any broker-dealer registered under the Exchange Act shall underwrite any Transfer Restricted Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of the Conduct Rules (the “ Conduct Rules ”) of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”) or any successor thereto, as amended from time to time) thereof, whether as a holder of such Transfer Restricted Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, assist such broker-dealer in complying with the requirements of such Conduct Rules, including by (A) if such Conduct Rules shall so require, engaging a “qualified independent underwriter” (as defined in such Conduct Rules) to participate in the preparation of the Shelf Registration Statement relating to such Transfer Restricted Securities and to exercise usual standards of due diligence in respect thereto, (B) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 6 hereof (or to such other customary extent as may be requested by such underwriter), and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the Conduct Rules; and

 

(xx)                           comply with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable but in any event not later than eighteen months after the effective date of such Shelf Registration Statement, an earning statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 thereunder).

 

(c)                                   In the event that the Company and the Guarantors would be required, pursuant to Section 3(a)(iii)(G) or Section 3(b)(viii)(F) above, to notify, as applicable, each broker-dealer, the Electing Holders, the placement or sales agent, if any, therefor and the managing underwriters, if any, thereof, the Company and the Guarantors shall without delay prepare and furnish to each of the Electing Holders, to each placement or sales agent, if any, and to each such underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of Transfer Restricted Securities, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and any applicable Ontario Securities Laws and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Each Electing Holder agrees that upon receipt of any notice from the Company and the Guarantors pursuant to Section 3(a)(iii)(G) or Section 3(b)(viii)(F) hereof, such broker-dealer, Electing Holder, underwriter or placement or sales agent shall forthwith discontinue the disposition of Transfer Restricted Securities pursuant to the Exchange Registration Statement or the Shelf Registration Statement applicable to such

 

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Transfer Restricted Securities until such broker-dealer, Electing Holder, underwriter or placement or sales agent shall have received copies of such amended or supplemented prospectus and if so directed by the Company, such broker-dealer, Electing Holder, underwriter or placement or sales agent shall destroy or deliver to the Company and the Guarantors (at the Company’s expense) all copies, other than permanent file copies, then in such Electing Holder’s possession of the prospectus covering such Transfer Restricted Securities at the time of receipt of such notice.

 

(d)                                  In the event of a Shelf Registration, in addition to the information required to be provided by each Electing Holder in its Notice Questionnaire, the Company and the Guarantors may require such Electing Holder to furnish to the Company and the Guarantors such additional information regarding such Electing Holder and such Electing Holder’s intended method of distribution of Transfer Restricted Securities as may be required in the reasonable judgment of counsel for the Company and the Guarantors in order to comply with the Securities Act. Each such Electing Holder agrees to notify the Company and the Guarantors as promptly as practicable of any inaccuracy or change in information previously furnished by such Electing Holder to the Company and the Guarantors or of the occurrence of any event in either case as a result of which any prospectus relating to such Shelf Registration contains or would contain an untrue statement of a material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Transfer Restricted Securities or omits or would omit to state any material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Transfer Restricted Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Company and the Guarantors any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Electing Holder or the disposition of such Transfer Restricted Securities, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.

 

(e)                                   As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each holder of Transfer Restricted Securities shall furnish, upon the request of the Company and the Guarantors, prior to the completion of the Exchange Offer, a written representation to the Issuers to the effect that (A) it is not an affiliate of the Company or the Guarantors, (B) it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Securities to be issued in the Exchange Offer and (C) it is acquiring the Exchange Securities in its ordinary course of business, and such holder shall make such other written representations as the Issuers may reasonably request in order to comply with applicable Ontario Securities Laws. As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each holder shall acknowledge and agree that any broker-dealer and any such holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters and

 

16



 

(2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Securities obtained by such holder in exchange for Securities acquired by such holder directly from the Company and the Guarantors.

 

(f)                                    Until the expiration of one year after the Closing Date, the Company and the Guarantors will not, and will not permit any of their “affiliates” (as defined in Rule 144) to, resell any of the Securities that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act.

 

(g)                                   By its acquisition of Securities or Exchange Securities each Electing Holder and each broker-dealer agrees that, upon the Company and the Guarantors providing notice to such Electing Holder or broker-dealer or the underwriter or placement or sales agent, as the case may be, (x) of the happening of any event of the kind described in clauses (C), (D) or (G) of Section 3(a)(iii) hereof or clauses (B), (C) or (F) of Section 3(b)(viii) hereof, or (y) that the Board of Directors of the Company has resolved that the Company and the Guarantors have a bona fide business purpose for doing so, then, upon providing such notice (which shall refer to this Section 3(g)), the Company and the Guarantors may delay the filing or the effectiveness of the Exchange Registration Statement or the Shelf Registration Statement (if not then filed or effective, as applicable) and shall not be required to maintain the effectiveness thereof or amend or supplement the Exchange Registration Statement or the Shelf Registration Statement, in all cases, for a period (a “ Delay Period ”) expiring upon the earlier to occur of (i) in the case of the immediately preceding clause (x), receipt by such broker-dealer, Electing Holder, underwriter or placement or sales agent of the copies of the supplemented or amended prospectus contemplated by Section 3(c) hereof or until it is advised in writing by the Company and the Guarantors pursuant to Section 3(c) hereof that the use of the applicable prospectus may be resumed, and has received copies of any amendments or supplements thereto or (ii) in the case of the immediately preceding clause (y), the date which is the earlier of (A) the date on which such business purpose ceases to interfere with the obligations of the Company and the Guarantors to file or maintain the effectiveness of such Exchange Registration Statement or the Shelf Registration Statement pursuant to this Agreement or (B) 60 days after the Company and the Guarantors notify the Electing Holders of such good faith determination. The period of effectiveness of the Exchange Registration Statement provided for in Section 2(a) above and the Shelf Registration Statement provided for in Section 2(b) shall each be extended by a number of days equal to the number of days during any Delay Period. No Delay Period shall exceed 60 consecutive days, and the aggregate number of days in all Delay Periods shall not exceed 90 during any 12-month period.

 

4.                                       Registration Expenses .

 

The Company and the Guarantors agree to bear and to pay or cause to be paid promptly all expenses incident to the performance of or compliance with this Agreement by the Company and the Guarantors, including (a) any and all Commission, OSC and FINRA registration, filing and review fees and expenses including reasonable fees and disbursements of counsel for the placement or sales agent or underwriters in connection with such registration, filing and review, (b) all fees and expenses in connection with the qualification of the Securities for offering and

 

17



 

sale under the State securities and blue sky laws referred to in Section 3(b)(xii) hereof and determination of their eligibility for investment under the laws of such jurisdictions as any managing underwriters or the Electing Holders may designate, including any reasonable fees and disbursements of counsel for the Electing Holders or underwriters in connection with such qualification and determination, (c) all expenses relating to the preparation, printing, production, distribution and reproduction of each registration statement required to be filed hereunder, each prospectus included therein or prepared for distribution pursuant hereto, each amendment or supplement to the foregoing, the expenses of preparing the Securities for delivery and the expenses of printing or producing any underwriting agreements, agreements among underwriters, selling agreements and blue sky or legal investment memoranda and all other documents in connection with the offering, sale or delivery of Securities to be disposed of (including certificates representing the Securities), (d) messenger, telephone and delivery expenses relating to the offering, sale or delivery of Securities and the preparation of documents referred to in clause (c) above, (e) fees and expenses of the Trustee under the Indenture, any agent of the Trustee and any counsel for the Trustee and of any collateral agent, security trustee or custodian, (f) internal expenses (including all salaries and expenses of the Company’s officers and employees performing legal or accounting duties), (g) fees, disbursements and expenses of counsel of the Issuers and independent chartered accountants of the Company and any other applicable chartered accountants (including the expenses of any opinions or “cold comfort” letters required by or incident to such performance and compliance), (h) fees, disbursements and expenses of any “qualified independent underwriter” engaged pursuant to Section 3(b)(xix) hereof, (i) reasonable fees, disbursements and expenses of one counsel for the Electing Holders retained in connection with a Shelf Registration, as selected by the Electing Holders of at least a majority in aggregate principal amount of the Transfer Restricted Securities held by Electing Holders (which counsel shall be reasonably satisfactory to the Company and which counsel may also be counsel for the Initial Purchasers), (j) any fees charged by securities rating services for rating the Securities, and (k) fees, expenses and disbursements of any other persons, including special experts, retained by the Issuers in connection with such registration (collectively, the “ Registration Expenses ”). To the extent that any Registration Expenses are incurred, assumed or paid by any holder of Transfer Restricted Securities or any placement or sales agent therefor or underwriter thereof, the Company and the Guarantors shall reimburse such person for the full amount of the Registration Expenses so incurred, assumed or paid promptly after receipt of a request therefor with supporting documentation evidencing the Registration Expenses. Notwithstanding the foregoing, the holders of the Transfer Restricted Securities being registered shall pay all agency fees and commissions and underwriting discounts and commissions attributable to the sale of such Transfer Restricted Securities and the fees and disbursements of any counsel or other advisors or experts retained by such holders (severally or jointly), other than the counsel and experts specifically referred to above.

 

5.                                       [Reserved].

 

6.                                       Indemnification .

 

(a)                                  Indemnification by the Issuers. Each of the Company and the Guarantors, jointly and severally, will indemnify and hold harmless each Initial Purchaser, its affiliates, as such term is defined in Rule 405 under the Securities Act and each person, if any, who controls each Initial

 

18



 

Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, the holders of Transfer Restricted Securities included in an Exchange Registration Statement, each of the Electing Holders of Transfer Restricted Securities included in a Shelf Registration Statement and each person who participates as underwriter in any offering or sale of such Transfer Restricted Securities against any losses, claims, damages or liabilities, joint or several, to which such Initial Purchaser, holder, underwriter may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon:

 

(i) any information or statement contained in any Exchange Registration Statement or Shelf Registration Statement, as the case may be, furnished by the Company to any Initial Purchaser, any such holder, Electing Holder, underwriter, or any amendment or supplement thereto, as the case may be, under which such Transfer Restricted Securities were registered under the Securities Act, which contains or is alleged to contain an untrue statement of a material fact or omits or is alleged to omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or

 

(ii) any information or statement contained in any preliminary, final or summary prospectus, as the case may be, furnished by the Company to any Initial Purchaser, any such holder, Electing Holder, underwriter, or any amendment or supplement thereto, as the case may be, which at the time and in the light of the circumstances under which it was made contains or is alleged to contain an untrue statement of a material fact or omits or is alleged to omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading,

 

and will reimburse such Initial Purchaser, such holder, such Electing Holder, and such underwriter for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such action, loss, claim, damage or liability as such expenses are incurred; provided, however, that the Company and the Guarantors shall not be liable to any such person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary, final or summary prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company and the Guarantors by such person expressly for use therein.

 

(b)                                  Indemnification by the Holders and any Underwriters. The Company and the Guarantors may require, as a condition to including any Transfer Restricted Securities in any registration statement filed pursuant to Section 2(b) hereof and to entering into any underwriting agreement with respect thereto, that the Company and the Guarantors shall have received an undertaking reasonably satisfactory to them from the Electing Holder of such Transfer Restricted Securities and from each underwriter named in any such underwriting agreement severally and not jointly, to (i) indemnify and hold harmless the Company and the Guarantors and all other holders of Transfer Restricted Securities, against any losses, claims, damages or liabilities to which the Company and the Guarantors or such other holders of Transfer Restricted Securities may become subject, under the Securities Act, the Ontario Securities Laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such

 

19


 

registration statement, or any preliminary, final or summary prospectus contained therein or furnished by the Company and the Guarantors to any such Electing Holder or underwriter, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company and the Guarantors by such Electing Holder or underwriter expressly for use therein, and (ii) reimburse the Company and the Guarantors for any legal or other expenses reasonably incurred by the Company and the Guarantors in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however , that no such Electing Holder shall be required to undertake liability to any person under this Section 6(b) for any amounts in excess of the dollar amount of the proceeds to be received by such Electing Holder from the sale of such Electing Holder’s Transfer Restricted Securities pursuant to such registration.

 

(c)       Notices of Claims, Etc.    In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either Section 6(a) or 6(b) above, the indemnified party shall promptly notify the indemnifying party in writing, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may otherwise have otherwise than on account of this indemnity. The indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of an indemnified party.

 

20



 

(d)       Contribution .   If for any reason the indemnification provisions contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 6(d) were determined by pro rata allocation (even if the holders or any underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 6(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6(d), no holder shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such holder from the sale of any Transfer Restricted Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages which such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Transfer Restricted Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The holders’ and any underwriters’ obligations in this Section 6(d) to contribute shall be several in proportion to the principal amount of Transfer Restricted Securities registered or underwritten, as the case may be, by them and not joint.

 

(e)      The obligations of the Company and the Guarantors under this Section 6 shall be in addition to any liability which the Issuers may otherwise have and shall extend, upon the same terms and conditions, to each officer, director and partner of each holder and underwriter and each person, if any, who controls any holder or underwriter within the meaning of the Securities Act; and the obligations of the holders and any underwriters contemplated by this Section 6 shall be in addition to any liability which the respective holder or underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and the Guarantors (including any person who, with his or her consent, is named in any registration statement as about to become a director of the Company and the Guarantors) and to

 

21



 

each person, if any, who controls the Company and the Guarantors within the meaning of the Securities Act.

 

7.              Underwritten Offerings .

 

(a)       Selection of Underwriters.    If any of the Transfer Restricted Securities covered by the Shelf Registration are to be sold pursuant to an underwritten offering, the managing underwriter or underwriters thereof shall be designated by Electing Holders holding at least a majority in aggregate principal amount of the Transfer Restricted Securities to be included in such offering, provided that such designated managing underwriter or underwriters is or are reasonably acceptable to the Company and the Guarantors.

 

(b)       Participation by Holders.    Each holder of Transfer Restricted Securities hereby agrees with each other such holder that no such holder may participate in any underwritten offering hereunder unless such holder (i) agrees to sell such holder’s Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

 

8.              Miscellaneous .

 

(a)       No Inconsistent Agreements.    The Company and the Guarantors represent, warrant, covenant and agree that they have not granted, and shall not grant, registration rights with respect to Transfer Restricted Securities or any other securities which would be inconsistent with the terms contained in this Agreement.

 

(b)       Notices.    All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, if delivered personally or by courier, or three days after being deposited in the mail (registered or certified mail, postage prepaid, return receipt requested) as follows: if to the Company and the Guarantors, to Kinross Gold Corporation, 25 York Street, 17th Floor, Toronto, Ontario, Canada M5J 2V5, Attention: Chief Financial Officer (with a copy to the General Counsel), and if to a holder, to the address of such holder set forth in the security register or other records of the Company and the Guarantors, or to such other address as the Company and the Guarantors or any such holder may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

 

(c)       Parties in Interest.    All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and the holders from time to time of the Transfer Restricted Securities and the respective successors and assigns of the parties hereto and such holders. In the event that any transferee of any holder of Transfer Restricted Securities shall acquire Transfer Restricted Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and such Transfer Restricted Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Transfer Restricted Securities such transferee shall be entitled to

 

22



 

receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of, this Agreement. If the Company and the Guarantors shall so request, any such successor, assign or transferee shall agree in writing to acquire and hold the Transfer Restricted Securities subject to all of the applicable terms hereof.

 

(d)       Survival.    The respective indemnities, agreements, representations, warranties and each other provision set forth in this Agreement or made pursuant hereto shall remain in full force and effect regardless of any investigation (or statement as to the results thereof) made by or on behalf of any holder of Transfer Restricted Securities, any director, officer or partner of such holder, any underwriter or any director, officer or partner thereof, or any controlling person of any of the foregoing, and shall survive delivery of and payment for the Transfer Restricted Securities pursuant to the Purchase Agreement and the transfer and registration of Transfer Restricted Securities by such holder and the consummation of an Exchange Offer.

 

(e)        Governing Law.     This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

(f)       Headings.    The descriptive headings of the several Sections and paragraphs of this Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.

 

(g)       Entire Agreement; Amendments.    This Agreement and the other writings referred to herein (including the Indenture and the form of Securities) or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to its subject matter. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument duly executed by the Company and the Guarantors and the holders of at least a majority in aggregate principal amount of the Transfer Restricted Securities at the time outstanding. Each holder of any Transfer Restricted Securities at the time or thereafter outstanding shall be bound by any amendment or waiver effected pursuant to this Section 8(h), whether or not any notice, writing or marking indicating such amendment or waiver appears on such Transfer Restricted Securities or is delivered to such holder.

 

(h)       Inspection.    For so long as this Agreement shall be in effect, this Agreement and a complete list of the names and addresses of all the holders of Transfer Restricted Securities shall be made available for inspection and copying on any business day by any holder of Transfer Restricted Securities for proper purposes only (which shall include any purpose related to the rights of the holders of Transfer Restricted Securities under the Securities, the Indenture and this Agreement) at the offices of the Company at the address thereof set forth in Section 8(c) above and at the office of the Trustee under the Indenture.

 

(i)       Counterparts.    This Agreement may be executed by the parties in counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.

 

23



 

(j)       Service of Process .   The Company and the Guarantors (i) agree that any legal suit, action or proceeding against it brought by any holder, the Initial Purchasers, any underwriter or by any person who controls any holder or underwriter arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any Federal or state court located in the Borough of Manhattan in the City of New York in the State of New York (“ New York Court ”), (ii) waive, to the fullest extent they may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding and (iii) submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company has appointed CT Corporation System, 111 Eighth Avenue, New York, New York 10011, as its authorized agent (the “ Authorized Agent ”) upon whom process may be served in any such legal suit, action or preceding against the Company and the Guarantors arising out of or based upon this Agreement or the transactions contemplated hereby which may be instituted in any New York Court by any holder, Initial Purchaser or underwriter or by any person who controls any holder, Initial Purchaser or underwriter. Such appointment shall be irrevocable. The Company represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the Company and the Guarantors.

 

(k)       Judgment Currency .   In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “ judgment currency ”) other than United States dollars, the Issuers shall indemnify each holder or underwriter against any loss incurred by such holder or underwriter as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which a holder or underwriter is able to purchase United States dollars with the amount of judgment currency actually received by such holder or underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Issuers and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars.

 

24



 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

 

Kinross Gold Corporation

 

 

 

 

By:

/s/ Tye W. Burt

 

 

Name: Tye W. Burt

 

 

Title:   President and CEO

 

 

 

 

 

 

 

By:

/s/ Paul H. Barry

 

 

Name: Paul H. Barry

 

 

 

Title:   EVP and CFO

 

 

 

 

 

 

 

 

Aurelian Resources Inc.

 

 

 

 

By:

/s/ Brant E. Hinze

 

 

Name: Brant E. Hinze

 

 

Title:   President

 

 

 

 

 

 

 

BGO (Bermuda) Ltd.

 

 

 

 

By:

/s/ Andres Verdugo

 

 

Name: Andres Verdugo

 

 

Title:   Director, President

 

 

 

 

 

 

 

Crown Resources Corporation

 

 

 

 

By:

/s/ Lauren M. Roberts

 

 

Name: Lauren M. Roberts

 

 

Title:   President

 

 

 

 

 

 

 

Fairbanks Gold Mining, Inc.

 

 

 

 

By:

/s/ Lauren M. Roberts

 

 

Name: Lauren M. Roberts

 

 

Title:   President

 

Signature Page to Registration Rights Agreement

 


 

 

Kinross Brasil Mineraçao S.A.

 

 

 

 

 

By:

/s/ António Carlos S. Marinho

/s/ Alessandro Lucioli Nepi

 

Name:

António Carlos S. Marinho

Alessandro Lucioli Nepi

 

Title:

Vice-President Brazil

 

 

 

Vice-President & General Counsel

 

 

 

 

 

Kinross Gold U.S.A., Inc.

 

 

 

 

 

By:

/s/ Lauren M. Roberts

 

Name:

Lauren M. Roberts

 

Title:

President

 

 

 

 

 

Melba Creek Mining, Inc.

 

 

 

 

 

By:

/s/ Lauren M. Roberts

 

Name:

Lauren M. Roberts

 

Title:

President

 

 

 

 

 

Compania Minera Mantos de Oro

 

 

 

 

 

By:

/s/ Andres Verdugo

 

Name:

Andres Verdugo

 

Title:

Director & Attorney

 

 

 

 

 

Compania Minera Maricunga

 

 

 

 

 

By:

/s/ Andres Verdugo

 

Name:

Andres Verdugo

 

Title:

Director & Attorney

 

 

 

 

 

Red Back Mining Mauritania No. 2 Limited

 

 

 

 

 

By:

/s/ Brant E. Hinze

 

Name:

Brant E. Hinze

 

Title:

CEO

 

Signature Page to Registration Rights Agreement

 



 

 

Red Back Mining Inc.

 

 

 

By:

/s/ Juliana Lam

 

 

Name:

Juliana Lam

 

 

Title:

VP, Finance

 

 

 

 

 

Round Mountain Gold Corporation

 

 

 

By:

/s/ Lauren M. Roberts

 

 

Name:

Lauren M. Roberts

 

 

Title:

President

 

Signature Page to Registration Rights Agreement

 



 

Confirmed and accepted as of the date first above written:

 

 

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

Morgan Stanley & Co. LLC

UBS Securities LLC

 

Acting on behalf of themselves and the several Initial Purchasers

 

 

By: Merrill Lynch, Pierce, Fenner & Smith

 

 

Incorporated

 

 

 

 

 

By:

/s/ [ILLEGIBLE]

 

 

Name:

[ILLEGIBLE]

 

 

Title:

[ILLEGIBLE]

 

 

 

 

 

 

 

By: Morgan Stanley & Co. LLC

 

 

 

 

 

 

 

 

By:

/s/ [ILLEGIBLE]

 

 

Name:

[ILLEGIBLE]

 

 

Title:

[ILLEGIBLE]

 

 

 

 

 

By:

UBS Securities LLC

 

 

By:

/s/ Spencer Haimes

 

 

Name:

Spencer Haimes

 

Title:

Managing Director

 

 

Debt Capital Markets

 

 

 

By:

/s/ Matthew Morici

 

 

Name:

Matthew Morici

 

Title:

Associate Director

 

 

Debt Capital Markets

 

 

UBS Investment Bank

 

 

 

 

 

Signature Page to Registration Rights Agreement

 


 

Exhibit A

 

FORM OF INSTRUCTION TO DTC PARTICIPANTS

 

[Date of Mailing]

 

URGENT — IMMEDIATE ATTENTION REQUESTED

DEADLINE FOR RESPONSE: [DATE] (a)

 

The Depository Trust Company (“ DTC ”) has identified you as a DTC Participant through which beneficial interests in the Kinross Gold Corporation (the “ Company ”) [ · ] Senior Notes due 20 · (the “ Securities ”) are held.

 

The Company is in the process of registering the Securities under the Securities Act of 1933 for resale by the beneficial owners thereof. In order to have their Securities included in the registration statement, beneficial owners must complete and return the enclosed Notice of Registration Statement and Selling Securityholder Questionnaire.

 

It is important that beneficial owners of the Securities receive a copy of the enclosed materials as soon as possible as their rights to have the Securities included in the registration statement depend upon their returning the Notice and Questionnaire by [Deadline For Response] . Please forward a copy of the enclosed documents to each beneficial owner that holds interests in the Securities through you. If you require more copies of the enclosed materials or have any questions pertaining to this matter, please contact Kinross Gold Corporation, 25 York Street, 17th Floor, Toronto, Ontario, Canada, M5J 2V5, Attention: · .

 


(a)          Not less than 28 calendar days from date of mailing

 



 

FORM OF NOTICE OF REGISTRATION STATEMENT

and

SELLING SECURITYHOLDER QUESTIONNAIRE

 

[Date]

 

Reference is hereby made to the Registration Rights Agreement (the “ Registration Rights Agreement ”) among Kinross Gold Corporation (the “ Company ”), the subsidiary guarantors referred to therein (the “ Guarantors ”), and the Initial Purchasers named therein. Pursuant to the Registration Rights Agreement, the Company and the Guarantors have filed with the United States Securities and Exchange Commission (the “ Commission ”) a registration statement (the “ Shelf Registration Statement ”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “ Securities Act ”), of the 3.625% Senior Notes due 2016, 5.125% Senior Notes due 2021 and 6.875% Senior Notes due 2041 of the Company guaranteed by the Guarantors (the “ Securities ”). A copy of the Registration Rights Agreement is attached hereto. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.

 

Each beneficial owner of Transfer Restricted Securities (as defined below) is entitled to have the Transfer Restricted Securities beneficially owned by it included in the Shelf Registration Statement. In order to have Transfer Restricted Securities included in the Shelf Registration Statement, this Notice of Registration Statement and Selling Securityholder Questionnaire (“ Notice and Questionnaire ”) must be completed, executed and delivered to the Company’s counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for Response] . Beneficial owners of Transfer Restricted Securities who do not complete, execute and return this Notice and Questionnaire by such date (i) will not be named as selling securityholders in the Shelf Registration Statement and (ii) may not use the Prospectus forming a part thereof for resales of Transfer Restricted Securities.

 

Certain legal consequences arise from being named as a selling securityholder in the Shelf Registration Statement and related Prospectus. Accordingly, holders and beneficial owners of Transfer Restricted Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling securityholder in the Shelf Registration Statement and related Prospectus.

 

The term “ Transfer Restricted Securities ” is defined in the Registration Rights Agreement.

 

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ELECTION

 

The undersigned holder (the “ Selling Securityholder ”) of Transfer Restricted Securities hereby elects to include in the Shelf Registration Statement the Transfer Restricted Securities beneficially owned by it and listed below in Item (3). The undersigned, by signing and returning this Notice and Questionnaire, agrees to be bound with respect to such Transfer Restricted Securities by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement, including, without limitation, Section 6 of the Registration Rights Agreement, as if the undersigned Selling Securityholder were an original party thereto.

 

Upon any sale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, the Selling Securityholder will be required to deliver to the Company and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and as Exhibit B to the Registration Rights Agreement.

 

The Selling Securityholder hereby provides the following information to the Company and represents and warrants that such information is accurate and complete:

 

QUESTIONNAIRE

 

(1)

(a)

Full Legal Name of Selling Securityholder:

 

 

 

 

 

 

 

(b)

Full Legal Name of Registered Holder (if not the same as in (a) above) of Transfer Restricted Securities Listed in Item (3) below:

 

 

 

 

 

 

 

(c)

Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) Through Which Transfer Restricted Securities Listed in Item (3) below are Held:

 

 

 

 

 

 

(2)

 

 

Address for Notices to Selling Securityholder:

 

 

 

 

 

 

 

 

 

 

Telephone:

 

 

Fax:

 

 

Contact Person:

 

 

Email Address:

 

 

 

(3)

Beneficial Ownership of Securities:

 

 

 

 

Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities.

 

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(a)                          Principal amount of Transfer Restricted Securities beneficially owned:

 

 

CUSIP No(s). of such Transfer Restricted Securities:

 

 

(b)                          Principal amount of Securities other than Transfer Restricted Securities beneficially owned:

 

 

CUSIP No(s). of such other Securities:

 

 

(c)                           Principal amount of Transfer Restricted Securities which the undersigned wishes to be included in the Shelf Registration Statement:

 

 

CUSIP No(s). of such Transfer Restricted Securities:

 

 

(4)                          Beneficial Ownership of Other Securities of the Company:

 

Except as set forth below, the undersigned Selling Securityholder is not the beneficial or registered owner of other securities of the Company, other than the Securities listed above in Item (3).

 

State any exceptions here:

 

(5)                          Relationships with the Company:

 

Except as set forth below, neither the undersigned Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.

 

State any exceptions here:

 

(6)                          Plan of Distribution:

 

Except as set forth below, the undersigned Selling Securityholder intends to distribute the Transfer Restricted Securities listed above in Item (3) only as follows (if at all): Such Transfer Restricted Securities may be sold from time to time directly by the undersigned Selling Securityholder or, alternatively, through underwriters, broker-dealers or agents. Such Transfer Restricted Securities may be sold in one or more transactions at fixed

 

4



 

prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any national securities exchange or quotation service on which the Registered Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Transfer Restricted Securities or otherwise, the Selling Securityholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Transfer Restricted Securities in the course of hedging the positions they assume. The Selling Securityholder may also sell Transfer Restricted Securities short and deliver Transfer Restricted Securities to close out such short positions, or loan or pledge Transfer Restricted Securities to broker-dealers that in turn may sell such securities.

 

State any exceptions here:

 

By signing below, the Selling Securityholder acknowledges that it understands its obligation to comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations thereunder, particularly Regulation M.

 

In the event that the Selling Securityholder transfers all or any portion of the Transfer Restricted Securities listed in Item (3) above after the date on which such information is provided to the Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Notice and Questionnaire and the Exchange and Registration Rights Agreement.

 

By signing below, the Selling Securityholder consents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in the Shelf Registration Statement and related Prospectus. The Selling Securityholder understands that such information will be relied upon by the Company in connection with the preparation of the Shelf Registration Statement and related Prospectus.

 

In accordance with the Selling Securityholder’s obligation under Section 3(b) of the Registration Rights Agreement to provide such information as may be required by law for inclusion in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein which may occur subsequent to the date hereof at any time while the Shelf Registration Statement remains in effect. All notices hereunder and pursuant to the Registration Rights Agreement shall be made in writing, by hand-delivery, first-class mail, or air courier guaranteeing overnight delivery as follows:

 

(i)          To the Company and the Guarantors:

 

 

5



 

(ii)         With a copy to:

 

 

Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the Company’s counsel, the terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives, and assigns of the Company, the Guarantors and the Selling Securityholder (with respect to the Transfer Restricted Securities beneficially owned by such Selling Securityholder and listed in Item (3) above). This Agreement shall be governed in all respects by the laws of the State of New York.

 

6



 

IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.

 

Dated:

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling Securityholder

 

(Print/type full legal name of beneficial owner of Transfer Restricted Securities)

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY’S COUNSEL AT:

 

 

7



 

Exhibit B

 

FORM OF NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT

 

[Trustee]

Kinross Gold Corporation

c/o [Trustee Address]

 

Attention:

 

Re:                      Kinross Gold Corporation (the “ Company ”)

[ · ]% Senior Notes due       (the “ Notes ”)

 

Dear Sirs:

 

Please be advised that                                               has transferred $                   aggregate principal amount of the above-referenced Notes pursuant to an effective Registration Statement on Form        (File No. 333-              ) filed by the Company and the Guarantors.

 

We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933, as amended, have been satisfied and that the above-named beneficial owner of the Notes is named as a “Selling Holder” in the Prospectus dated [ · , 20 · ] or in supplements thereto, and that the aggregate principal amount of the Notes transferred are the Notes listed in such Prospectus opposite such owner’s name.

 

Dated:

 

 

 

 

Very truly yours,

 

 

 

 

 

 

 

 

(Name):

 

 

 

 

By:

 

 

 

(Authorized Signature)

 




Exhibit 5.1

 

[Sullivan & Cromwell LLP letterhead]

 

April 27, 2012

 

Kinross Gold Corporation,

 

 

25 York Street,

 

 

17th Floor,

 

 

Toronto, Ontario,

 

 

Canada M5J 2V5.

 

 

 

Ladies and Gentlemen:

 

In connection with the registration under the Securities Act of 1933 (the “Act”) of (i) $250,000,000 aggregate principal amount of 3.625% Notes due 2016 (the “New 2016 Notes”), $500,000,000 aggregate principal amount of 5.125% Notes due 2021 (the “New 2021 Notes”) and $250,000,000 aggregate principal amount of 6.875% Notes due 2041 (the “New 2041 Notes” and together with the New 2016 Notes and the New 2021 Notes, the “New Notes”) of Kinross Gold Corporation, an Ontario corporation (the “Company”), to be issued in exchange for the Company’s outstanding 3.625% Notes due 2016, 5.125% Notes due 2021 and 6.875% Notes due 2041 (together, the “Initial Notes”), pursuant to the Indenture, dated as of August 22, 2011 (“the “Indenture”), among the Company, the guarantors listed on Annex A (the “Guarantors”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”), and (ii) the guarantees of the New Notes (the “New Guarantees”) by the Guarantors of the Initial Notes pursuant to the Indenture, we, as your special U.S. counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.

 

Upon the basis of such examination, we advise you that, in our opinion, when the combined Registration Statement on Form F-9 and Form S-4 (the “Registration Statement”) has become effective under the Act, when the terms of the New Notes and the New Guarantees and of their issuance and exchange have been duly established in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company or the Guarantors and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or the Guarantors, when the New Notes and New Guarantees have been duly executed and delivered by the Company or the Guarantors, as applicable, and have been authenticated by the Trustee in conformity with the Indenture, and when the New Notes and New Guarantees have been duly issued and exchanged as contemplated in the Registration Statement, (i) the New Notes will constitute valid and legally binding obligations of the Company and (ii) the New Guarantees will constitute valid and legally binding obligations of the respective Guarantors, subject, in each case, to bankruptcy, insolvency, fraudulent transfer,

 



 

reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

 

In rendering the foregoing opinion, we are expressing no opinion as to federal or state laws relating to fraudulent transfers.

 

The foregoing opinion is limited to the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.  In rendering the foregoing opinion we have, with your approval, assumed that (i) the Company has been duly formed and is validly existing under the laws of Ontario, (ii) each Guarantor listed on Annex B (a “non-Delaware Guarantor”) has been duly formed and is validly existing under the laws of its respective jurisdiction of incorporation or formation, (iii) the Indenture has been duly authorized, executed and delivered by the Company insofar as the laws of Ontario and the Federal laws of Canada are concerned, (iv) the Indenture has been duly authorized, executed and delivered by each non-Delaware Guarantor insofar as the laws of its respective jurisdiction of incorporation or formation are concerned, (v) the New Notes have been duly authorized, executed, issued and delivered by the Company insofar as the laws of Ontario and the Federal laws of Canada are concerned, (vi) the New Guarantees have been duly authorized, executed and delivered by each non-Delaware Guarantor insofar as the laws of its respective jurisdiction of incorporation or formation are concerned and (vii) the provisions of the New Notes, the New Guarantees and the Indenture designating the law of the State of New York as the governing law for the New Notes, the New Guarantees and the Indenture are valid and binding upon the Company and each non-Delaware Guarantor insofar as the laws of its respective jurisdiction of incorporation or formation are concerned.  We note that with respect to all matters of local law of the jurisdictions listed on Annex C hereto, you are relying upon the opinions of the respective counsel named in Annex C hereto, all of which are also filed as exhibits to the Registration Statement.

 

Also, we have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible, and we have assumed that the Indenture has been duly authorized, executed and delivered by the Trustee thereunder, an assumption which we have not independently verified.

 

2



 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading “Validity of Notes and Guarantees” in the Prospectus.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

 

 

Very truly yours,

 

 

 

/s/ Sullivan & Cromwell

 

3



 

Annex A

 

Guarantors

 

Aurelian Resources Inc.

Red Back Mining Mauritania No. 2 Limited

Red Back Mining Inc.

BGO (Bermuda) Ltd.

Kinross Brasil Mineraçao S.A.

Kinross Gold U.S.A., Inc.

Crown Resources Corporation

Fairbanks Gold Mining, Inc.

Melba Creek Mining, Inc.

Compañía Minera Mantos de Oro

Compañía Minera Maricunga

Round Mountain Gold Corporation

 

4



 

Annex B

 

Non-Delaware Guarantors

 

Aurelian Resources Inc.

Red Back Mining Mauritania No. 2 Limited

Red Back Mining Inc.

BGO (Bermuda) Ltd.

Kinross Brasil Mineraçao S.A.

Kinross Gold U.S.A., Inc.

Crown Resources Corporation

Melba Creek Mining, Inc.

Compañía Minera Mantos de Oro

Compañía Minera Maricunga

 

5



 

Annex C

 

Local Counsel Opinions

 

Counsel

 

Jurisdiction

Osler, Hoskin & Harcourt LLP

 

Canada and Ontario

Blake, Cassels & Graydown LLP

 

British Columbia

Marshall Diel & Myers Limited

 

Bermuda

Veirano Advogados

 

Federative Republic of Brazil

Parsons Behle & Latimer

 

Nevada

Perkins Coie LLP

 

Washington

Perkins Coie LLP

 

Alaska

Claro y Cia

 

Republic of Chile

 

6




Exhibit 5.2

 

[Osler, Hoskin & Harcourt LLP letterhead]

 

April 19, 2012

 

Kinross Gold Corporation

25 York Street

17th Floor

Toronto, Ontario

Canada M5J 2V5

 

Ladies and Gentlemen:

 

We are acting as Canadian counsel to Kinross Gold Corporation (“Kinross”), Aurelian Resources Inc. (“Aurelian”) and Red Back Mining Inc. (“Red Back” and together with Aurelian, the “Canadian Guarantors”) in connection with the issuance by Kinross of $250,000,000 aggregate principal amount of 3.625% Notes due 2016 (the “New 2016 Notes”), $500,000,000 aggregate principal amount of 5.125% Notes due 2021 (the “New 2021 Notes”) and $250,000,000 aggregate principal amount of 6.875% Notes due 2041 (the “New 2041 Notes” and together with the New 2016 Notes and the New 2021 Notes, the “New Notes”).  The New Notes are unconditionally guaranteed by the Canadian Guarantors (the “Guarantees”).

 

We understand that Kinross intends to offer to exchange the New Notes and the Guarantees for an equivalent principal amount of its outstanding notes, pursuant to an exchange offer registered with the United States Securities and Exchange Commission (“SEC”).

 

The New Notes will be issued pursuant to an indenture (the “Indenture”) dated as of August 22, 2011 among Kinross, certain subsidiaries of Kinross, including the Canadian Guarantors, as guarantors and Wells Fargo Bank, National Association, as trustee (the “Trustee”).

 

A.                                     Documentation

 

As Canadian counsel for Kinross and the Canadian Guarantors, we have participated in the preparation of the Indenture and Guarantees.

 

B.                                     Jurisdiction

 

We are solicitors qualified to practice law in the Province of Ontario (the “Province”).  We express no opinion as to any laws or any matters governed by any laws other than the laws of the Province and the federal laws of Canada applicable therein.

 



 

C.                                     Scope of Examinations

 

In connection with the opinions expressed in this opinion letter, we have considered such questions of law and examined such public and corporate records, certificates and other documents and conducted such other examinations as we have considered necessary.

 

D.                                     Assumptions and Reliances

 

We have assumed the legal capacity of all individuals, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies.

 

In expressing the opinion in the first sentence of paragraph 1, we have relied solely upon a certificate of status dated April 19, 2012, issued by the Ministry of Government and Consumer Services of Ontario, a copy of which has been delivered to you.

 

In expressing the opinion in the first sentence of paragraph 2, we have relied solely upon a certificate of compliance dated April 19, 2012, issued by Industry Canada, a copy of which has been delivered to you.

 

In expressing the opinion in the first sentence of paragraph 3, we have relied solely upon a certificate of compliance dated April 19, 2012, issued by Industry Canada, a copy of which has been delivered to you.

 

To the extent that the opinions expressed in this letter are based on factual matters, we have relied solely upon certificates of an officer of the Corporation and each Canadian Guarantor (collectively, the “Officer’s Certificates”) as to such matters.  Copies of such certificates are attached to this opinion letter.

 

On the basis of the foregoing and subject to the qualifications herein expressed, we are of the opinion that:

 

1.              Kinross is a corporation existing under the laws of the Province.  There are no restrictions on the power and capacity of the Corporation to own property or to carry on business.

 

2.              Aurelian is a corporation existing under the laws of Canada.  There are no restrictions on the power and capacity of Aurelian to own property or to carry on business.

 

3.              Red Back is a corporation existing under the laws of Canada.  There are no restrictions on the power and capacity of Red Back to own property or to carry on business.

 

2



 

4.              The execution and delivery of, and the performance by Kinross and the Canadian Guarantors of their respective obligations under, the Indenture, the New Notes and the Guarantees has been duly authorized by all necessary action of the Corporation and each Canadian Guarantor.

 

5.              To the extent that execution and delivery are matters governed by the laws of the Province and the federal laws of Canada applicable therein:

 

(a)                                   the Indenture has been duly executed and delivered by Kinross and the Canadian Guarantors;

 

(b)                                  when the New Notes are issued, executed and delivered by Kinross and authenticated by the Trustee pursuant to the terms and conditions of the Indenture, the New Notes will be duly issued, executed and delivered by Kinross; and

 

(c)                                   when the Guarantees are issued, executed and delivered by the Canadian Guarantors, the Guarantees will be, duly executed and delivered by Kinross and the Canadian Guarantors.

 

6.              The execution and delivery by the Corporation and each Canadian Guarantor of, and the performance by the Corporation and each Canadian Guarantor of its obligations under the Indenture, the New Notes (in the case of Kinross) and its Guarantee (in the case of each Canadian Guarantor) would not if executed and delivered on the date hereof:

 

(a)                                   violate any provision of any Canadian federal or provincial law, statute, rule or regulation as presently in effect in the Province; or

 

(b)                                  conflict with or contravene the constating documents of the Corporation or any Canadian Guarantor.

 

This opinion is being delivered to you for your use only in connection with the filing of a Registration Statement (the “Registration Statement”) with respect to the New Notes and the Guarantees with the SEC and may not be relied upon by any person other than you and the law firm of Sullivan & Cromwell LLP for purposes of the opinion to be delivered by such firm in connection with the Registration Statement.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Validity of Notes and Guarantees” in the prospectus that forms part of the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.

 

Yours very truly,

 

 

 

/s/ Osler, Hoskin & Harcourt LLP

 

 

3




Exhibit 5.3

 

 

April 19, 2012

Reference: 62545/90000

 

Kinross Gold Corporation

25 York Street, 17th Floor

Toronto, Ontario, Canada

M5J 2V5

 

Dear Sirs/Mesdames:

 

Re:           Red Back Mining Mauritania No. 2 Limited

 

1.              SCOPE OF OPINION

 

Introduction; Defined Terms

 

1.1            We have acted as British Columbia counsel to Red Back Mining Mauritania No. 2 Limited (the “Company”) in connection with the issuance by Kinross Gold Corporation (“Kinross”) of $250,000,000 aggregate principal amount of 3.625% Notes due 2016 (the “New 2016 Notes”), $500,000,000 aggregate principal amount of 5.125% Notes due 2021 (the “New 2021 Notes”) and $250,000,000 aggregate principal amount of 6.875% Notes due 2041 (the “New 2041 Notes” and together with the New 2016 Notes and the New 2021 Notes, the “New Notes”) pursuant to an indenture (the “Indenture”) dated as of August 22, 2011 among Kinross, certain subsidiaries of Kinross, including the Company, as guarantors, and Wells Fargo Bank, National Association, as trustee, and the unconditional guarantee as to the payment of principal and interest on the New Notes by the Company in accordance with the terms of the Indenture (such guarantee of the New 2016 Notes, the “2016 Guarantee”; such guarantee of the New 2021 Notes, the “2021 Guarantee”; and such guarantee of the New 2041 Notes, the “2041 Guarantee” and, together with the 2016 Guarantee and the 2021 Guarantee, the “Guarantees”).  All capitalized terms used in this opinion letter shall, unless otherwise defined in this opinion letter, have the meanings ascribed to them in the Indenture.

 

1.2            We understand that Kinross intends to offer to exchange the New Notes for an equivalent principal amount of certain of its outstanding notes (the “Existing Notes”) and to exchange the Guarantees for the Company’s outstanding unconditional guarantees as to the payment of principal and interest on the Existing Notes by the Company, pursuant to an exchange offer to be registered with the United States Securities and Exchange Commission (the “SEC”).  We understand further that a registration statement dated as of April 27, 2012 (the “Registration Statement”) with respect to the New Notes, the Guarantees and certain other guarantees will be filed with the SEC.

 

Blake, Cassels & Graydon LLP is a limited liability partnership under the laws of Ontario

 

 



 

Examination of Documents

 

1.3            We have examined the following documents:

 

1.3.1            specimens of the Guarantees;

 

1.3.2            the Registration Statement; and

 

1.3.3            the Indenture.

 

1.4            We have also made such investigations and examined originals or copies, certified or otherwise identified to our satisfaction, of such certificates of public officials and of such other certificates, documents and records as we considered necessary or relevant for purposes of the opinions expressed below, including:

 

1.4.1            a certificate of an officer of the Company dated April 19, 2012 (the “Officer’s Certificate”), a copy of which has been delivered to you; and

 

1.4.2            a certificate of good standing for the Company, issued by the Registrar of Companies (British Columbia) dated April 18, 2012 (the “Certificate of Good Standing”), a copy of which has been delivered to you.

 

Assumptions

 

1.5            For the purpose of the opinions expressed herein, we have made the following assumptions:

 

1.5.1            with respect to all documents examined by us, the genuineness of all signatures, the legal capacity of individuals signing any documents, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, telecopied, photocopied or electronically transmitted copies;

 

1.5.2            the accuracy, currency and completeness of the indices and filing systems maintained by the public offices and registries where we have searched or enquired or have caused searches or enquiries to be made and of the information and advice provided to us by appropriate government, regulatory or other like officials with respect to those matters referred to herein;

 

1.5.3            the Indenture constitutes, and the Guarantees will constitute, a valid and legally binding obligation of each of the parties thereto, enforceable against each of the parties thereto in accordance with its terms;

 

1.5.4            that all facts set forth in all certificates supplied, or otherwise conveyed to us, by public officials and in the Officer’s Certificate, are true;

 

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1.5.5            that the Certificate of Good Standing continues to be accurate on the date of this opinion letter as if issued on that date;

 

1.5.6            that no facts or circumstances will arise between the date hereof and the date on which the Guarantees are executed and delivered which might affect the opinions given herein;

 

1.5.7            (i) all formal legal requirements, if any, existing under the laws of the jurisdiction where the Indenture has actually been signed, executed and delivered (other than to the extent the Indenture has actually been signed, executed and delivered in British Columbia) have been complied with, and (ii) to the extent that the execution and delivery of the Indenture, including any formal requirements relating to the execution and delivery thereof, is governed by the laws of any jurisdiction other than British Columbia, that such laws have been complied with;

 

1.5.8            (i) all formal legal requirements, if any, existing under the laws of the jurisdiction where the Guarantees will actually be signed, executed and delivered (other than to the extent the Guarantees will actually been signed, executed and delivered in British Columbia) will be complied with, and (ii) to the extent that the execution and delivery of the Guarantees, including any formal requirements relating to the execution and delivery thereof, will be governed by the laws of any jurisdiction other than British Columbia, that such laws will be complied with;

 

1.5.9            except with respect to the Company, each of the parties to each of the Indenture and the Guarantees (i) is a subsisting legal entity under the laws of its jurisdiction of incorporation or formation, (ii) has the legal capacity to execute, deliver and perform its obligations under each such applicable document, (iii) has duly authorized the execution, delivery and performance of its obligations under each such applicable document, (iv) has duly executed and delivered the Indenture; and (v) will duly execute and deliver the Guarantees; and

 

1.5.10          the Guarantees will be executed and delivered in a form identical to the specimens of the Guarantees referred to in Section 1.3.1 hereof which we have reviewed.

 

Laws Addressed

 

1.6            The opinions expressed herein relate only to the laws of the Province of British Columbia, and the federal laws of Canada applicable therein in effect on the date hereof (collectively, “BC Law”), and we have made no investigation and express no opinion as to the laws of any jurisdiction, or as to any matters governed by the laws of any jurisdiction, other than BC Law, all as in effect as at the date hereof.  The opinions set forth in this letter are expressed as of the date of this letter and are based on the facts and law in existence on the date hereof. We undertake no obligation to advise you of changes of law or fact that occur after the date of this letter, or of any other matter which comes to our attention hereafter.  The opinions set forth in this letter are limited to

 

3



 

the matters expressly set forth herein and no opinion is implied or may be inferred beyond the matters set forth herein.

 

2.              OPINIONS

 

Based upon and subject to the foregoing, and subject to the qualifications set out below, we are of the opinion that, at the date hereof:

 

2.1            Relying solely on the Certificate of Good Standing, the Company is a valid and existing company under the Business Corporations Act (British Columbia) and is in good standing with the Registrar of Companies (British Columbia) with respect to the filing of annual reports.

 

2.2            All necessary corporate action has been taken by the Company to authorize the Company’s execution and delivery of each of the Indenture and the Guarantees, and the Company’s performance of its obligations thereunder.

 

2.3            The Indenture has been duly executed and delivered by the Company, to the extent such execution and delivery are matters governed by BC Law.

 

2.4            The Guarantees, when executed and delivered (free of all conditions) by the Company in accordance with the Indenture and the resolution of the board of directors of the Company attached to the Officer’s Certificate, will be duly executed and delivered, to the extent such execution and delivery are matters governed by BC Law.

 

2.5            The execution and delivery by the Company of the Indenture and the Guarantees, and the performance of its obligations thereunder, would not, if executed and delivered on the date hereof, violate, result in a breach of, or constitute a default under (i) the articles of the Company or (ii) any statute or regulation of the Province of British Columbia, or any federal statute or regulation of Canada applicable therein, to which the Company is subject.

 

3.              RELIANCE

 

This opinion is being delivered to you for your use only in connection with the filing of the Registration Statement with the SEC and may not be relied upon by any person other than you and the law firm of Sullivan & Cromwell LLP for purposes of the opinion to be delivered by such firm in connection with the Registration Statement.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Validity of Notes and Guarantees” in the prospectus that forms part of the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.

 

Yours very truly,

 

 

 

/s/ Blake, Cassels & Graydon LLP

 

 

4




Exhibit 5.4

 

[Perkins Coie LLP letterhead]

 

April 19, 2012

 

Kinross Gold Corporation

25 York Street

17th Floor

Toronto, Ontario

Canada M5J 2V5

 

Re:

Guarantees of Kinross Gold Corporation’s 3.65% Notes due 2016, 5.125% Notes due 2021 and 6.875% Notes due 2041 — Alaska and Washington Guarantors

 

Ladies and Gentlemen:

 

We have acted as special Alaska counsel to Melba Creek Mining, Inc., an Alaska corporation (the “Alaska Guarantor”), a subsidiary of Kinross Gold Corporation, an Ontario corporation (the “Issuer”), and as special Washington counsel to Crown Resources Corporation, a Washington corporation (the “Washington Guarantor”), a subsidiary of the Issuer, in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of $250,000,000 in aggregate principal amount of the Issuer’s 3.65% Notes due 2016 (the “2016 Exchange Notes”), $500,000,000 in aggregate principal amount of the Issuer’s 5.125% Notes due 2021 (the “2021 Exchange Notes”) and $250,000,000 in aggregate principal amount of the Issuer’s 6.875% Notes due 2041 (the “2041 Exchange Notes” and, together with the 2016 Exchange Notes and the 2021 Exchange Notes, the “Exchange Notes”) pursuant to the Registration on Form S-4 (the “Registration Statement”) filed with the Securities and Exchange Commission under the Securities Act.  The Exchange Notes are proposed to be offered by the Issuer in exchange for existing $250,000,000 in aggregate principal amount of the Issuer’s 3.65% Notes due 2016, $500,000,000 in aggregate principal amount of the Issuer’s 5.125% Notes due 2021 and $250,000,000 in aggregate principal amount of the Issuer’s 6.875% Notes due 2041.  The Exchange Notes will be issued pursuant to the Indenture (the “Indenture”), dated as of August 22, 2011, among the Issuer, the Alaska Guarantor, the Washington Guarantor, Aurelian Resources Inc., BGO (Bermuda) Ltd, Kinross Brasil Mineraçao S.A., Kinross Gold U.S.A., Inc., Fairbanks Gold Mining, Inc., Compania Minera Mantos de Oro, Compania Minera Maricunga, Red Back Mining Mauritania No. 2 Limited, Red Back Mining, Inc., and Round Mountain Gold Corporation, as Guarantors, and Wells Fargo Bank, National Association, as Trustee.  Each of the Alaska Guarantor and the Washington Guarantor will execute a guarantee (the “Guarantee”) to be endorsed on each Exchange Note authenticated by the Trustee.  The Guarantee will evidence each of the Alaska Guarantor’s guarantee and the Washington Guarantor’s guarantee, respectively, of the Issuer’s obligations under the Exchange Notes pursuant to the Indenture.

 

In our capacity as counsel to the Alaska Guarantor and the Washington Guarantor, we have examined (a) the Registration Statement, (b) the Indenture, (c) the form of Exchange Notes and Guarantee, (d) the articles of incorporation, bylaws and resolutions of each of the Alaska Guarantor and the Washington Guarantor and (e) the originals or copies identified to

 



 

our satisfaction, of such corporate records of each of the Alaska Guarantor and the Washington Guarantor, certificates of public officials, officers of each of the Alaska Guarantor and the Washington Guarantor and such other persons, and such other documents, agreements and instruments that we have deemed necessary as a basis for the opinions expressed below.  In our examination, we have assumed the authenticity of all documents submitted to us as originals, the conformity with the originals of all documents submitted to us as copies, and the truth, accuracy and completeness of the information, representations and warranties contained in the Registration Statement, the Indenture and such other documents, agreements and instruments.

 

Based on and subject to the foregoing and the other assumptions, exclusions and qualifications in this letter, we are of the opinion that (1) the Alaska Guarantor (A) is a corporation validly existing under Alaska law; (B) has the corporate power to enter into and deliver each of the Indenture and the Guarantee; (C) has taken all corporate action necessary to authorize the execution and delivery of each of the Indenture and the Guarantee; and (D) based solely on the certificate of an officer of the Alaska Guarantor, has executed and delivered the Indenture; and (2) the Washington Guarantor (A) is a corporation validly existing under Washington law; (B) has the corporate power to enter into and deliver each of the Indenture and the Guarantee; (C) has taken all corporate action necessary to authorize the execution and delivery of each of the Indenture and the Guarantee; and (D) based solely on the certificate of an officer of the Washington Guarantor, has executed and delivered the Indenture.

 

We do not express any opinions herein concerning any laws other than the laws in their current forms of the states of Alaska and Washington, and we express no opinion with respect to the laws of any other jurisdiction.

 

We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the caption “Validity of Notes and Guarantees” in the prospectus that forms part of the Registration Statement.  In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933 or related rules nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “expert” as used in the Securities Act or related rules.

 

 

Very truly yours,

 

 

 

/s/ Perkins Coie LLP

 

 

 

PERKINS COIE LLP

 

 

 

2




Exhibit 5.5

 

[Marshall Diel & Myers Limited letterhead]

 

Our Ref: KAT/mml/6466-4 (01)

 

BY EMAIL AND BY POST

 

April 19, 2012

 

Kinross Gold Corporation

25 York Street

17th Floor

Toronto, Ontario

Canada M5J 2V5

 

Dear Sirs

 

Re:

BGO (Bermuda) Ltd.

 

 

We are acting as special Bermuda counsel to BGO (Bermuda) Ltd (the “Company”) in connection with the issuance by Kinross Gold Corporation (“Kinross”) of $250,000,000 aggregate principal amount of 3.625% Notes due 2016 (the “New 2016 Notes”), $500,000,000 aggregate principal amount of 5.125% Notes due 2021 (the “New 2021 Notes”) and $250,000,000 aggregate principal amount of 6.875% Notes due 2041 (the “New 2041 Notes” and together with the New 2016 Notes and the New 2021 Notes, the “New Notes”) .  The New Notes are unconditionally guaranteed by the Company (the “Guarantees”).

 

We understand that Kinross intends to offer to exchange the New Notes and the Guarantees for an equivalent principal amount of its outstanding notes, pursuant to an exchange offer registered with the United States Securities and Exchange Commission (“SEC”).

 

The New Notes will be issued pursuant to an indenture (the “Indenture”) dated as of August 22, 2011 among Kinross, certain subsidiaries of Kinross, including the Company, as guarantors (the “Subsidiary Guarantors”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”).

 

For the purpose of this opinion, the Company has provided us with copies of the following documents (together being the “Documents”):

 

(a)           Indenture dated August 22, 2011;

 

(b)          Form of Guarantee;

 

(c)           Certified Resolutions of the Company pursuant to Bye-Law 20 dated June 17, 2011.

 

The opinions expressed herein are limited to the law of Bermuda.

 



 

We express no opinion as to any laws, or matters governed by any laws, other than the law of Bermuda.

 

Assumptions

 

In stating our opinion, we have assumed:

 

(a)           the authenticity, accuracy and completeness of the Documents;

 

(b)          that each of the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent;

 

(c)           the genuineness of all signatures on the Documents; and

 

(d)          the authority, capacity and power of each of the persons signing the Documents (other than the Company).

 

Opinion

 

Based upon and subject to the foregoing, we are of the opinion that:

 

1.                The Company is a duly organized and validly existing corporation in good standing under the laws of Bermuda.

 

2.                The Indenture and the Guarantees have been duly authorized by the Company, and, to the extent such execution and delivery are matters governed by the laws of Bermuda, the Indenture has been duly executed and delivered by the Company.

 

3.                The execution, delivery and performance by the Company of its obligations under the Indenture and the Guarantees do not and will not violate Bermuda Law.

 

4.                The execution, delivery and performance by the Company of the Indenture and the Guarantees do not and will not constitute a breach or violation of the Memorandum of Association and the Bye Laws of the Company.

 

5.                Based solely upon the entries and filings shown in respect of the Company on the file of the Company maintained in the Registrar of Companies at the office of the Registrar of Companies in Hamilton, Bermuda as revealed by a search conducted on October 12, 2012 and the entries and filings shown in respect of the Company in the Supreme Court Causes Book maintained at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by a search conducted on 12 April 2009:

 

1.                no litigation, administrative or other proceeding of or before any governmental authority of Bermuda is pending  against or affecting the Company; and

 

2.                no notice to the Registrar of Companies of the passing of a resolution of members or creditors to wind up or the appointment of a liquidator or receiver has been given.  No petition to wind up the Company or application to re-

 



 

organise its affairs pursuant to a Scheme of Arrangement or application for the appointment of a receiver has been filed with the Supreme Court.

 

This opinion is being delivered to you for your use only in connection with the filing of a Registration Statement (the “Registration Statement”) with respect to the New Notes and the Guarantees with the SEC and may not be relied upon by any person other than you and the law firm of Sullivan & Cromwell LLP for purposes of the opinion to be delivered by such firm in connection with the Registration Statement.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “ Validity of Notes and Guarantees ” in the prospectus that forms part of the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.

 

Yours faithfully

 

MARSHALL DIEL & MYERS LIMITED

 

 

 

/s/ Katie Tornari

 

Katie Tornari

 

Director

 

 




Exhibit 5.6

 

VEIRANO ADVOGADOS

Attorneys-at-Law

 

 

 

 

 

 

 

 

Rio de Janeiro, April 19, 2012.

 

Rio de Janeiro

Avenida Presidente Wilson, 231 - 23º andar

Cep: 20030-021 - Rio de Janeiro - RJ - Brazil

Tel.: (55 21) 3824-4747  Fax: (55 21) 2262-4247

e-mail: rjoffice@veirano.com.br

www.veirano.com.br

 

São Paulo – Porto Alegre

Brasília

 

 

Alexandre Bittencourt Calmon

e-mail: alexandre.calmon@veirano.com.br

 

Elisa Rezende

e-mail: elisa.rezende @veirano.com.br

 

To

 

Kinross Gold Corporation

25 York Street

17th Floor

Toronto, Ontario

Canada M5J 2V5

 

Re:                                         Guarantees by Kinross Brasil Mineração S/A

 

Ladies and Gentlemen:

 

We have acted as special Brazilian counsel to Kinross Brasil Mineração S/A (the “Company”) in connection with the issuance by Kinross Gold Corporation (“Kinross”) of $250,000,000 aggregate principal amount of 3.625% Notes due 2016 (the “New 2016 Notes”), $500,000,000 aggregate principal amount of 5.125% Notes due 2021 (the “New 2021 Notes”) and $250,000,000 aggregate principal amount of 6.875% Notes due 2041 (the “New 2041 Notes” and together with the New 2016 Notes and the New 2021 Notes, the “New Notes”) .  The New Notes are unconditionally guaranteed by the Company (the “Guarantees”).

 

We understand that Kinross intends to offer to exchange the New Notes and the Guarantees for an equivalent principal amount of its outstanding notes, pursuant to an exchange offer registered with the United States Securities and Exchange Commission (“SEC”).

 

The New Notes will be issued pursuant to an indenture (the “Indenture”) dated as of

 



 

August 22, 2011 among Kinross, certain subsidiaries of Kinross, including the Company, as guarantors (the “Subsidiary Guarantors”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”).

 

In order to express the opinions below, we have examined executed originals or copies of the following documents:

 

(1)                                  the Indenture, duly executed by Messrs. Antonio Carlos Saldanha Marinho, as Vice President Officer Brazil & General Counsel, and Alessandro Lucioli Nepomuceno, as Safety, Health and Environmental Officer;

 

(2)                                  by-laws of the Company in accordance with the Minutes of the Extraordinary Shareholders’ Meeting of the Company held on July 29, 2011, registered with the Commercial Registry of the State of Minas Gerais (the “Commercial Registry”) under number 4672251, by decision dated August 22, 2011 (the “By-laws”);

 

(3)                                  good standing certificate issued on behalf of the Company on April 11, 2012, by the Commercial Registry; and

 

(4)                                  Minutes of the Extraordinary Shareholders’ Meeting of the Company held on March 31, 2011, registered with the Commercial Registry under number 4619916, by decision dated May 20, 2011, which decided, among other matters, on the appointment of the current officers of the Company, including the signatories to the Indenture.

 

In our examination, we have assumed, with your consent and without any independent investigation or verification of any kind, the genuineness of all signatures, the authenticity of all documents submitted to us as original documents and the conformity with original documents of all documents submitted to us as certified, conformed, telefacsimile or photostatic copies. We have also assumed the power, authority, and legal right of all parties (other than the Company) to the Indenture to enter into and perform their respective obligations thereunder and the due authorization, execution and delivery of the Indenture by such parties. We have assumed the validity and enforceability of the Indenture under all applicable laws other than the laws of the Federative Republic of Brazil (“Brazil”).

 

Based upon the foregoing and such additional investigations of law as we have deemed

 

2



 

appropriate as a basis for the opinions expressed below and subject to the assumptions and qualifications herein contained, it is our opinion that:

 

(1)                                   The Company is a duly organized and validly existing corporation (sociedade anônima) in good standing under the laws of Brazil.

 

(2)                                   The Indenture has been duly authorized by the Company, and, to the extent such execution and delivery are matters governed by the laws of Brazil, duly executed and delivered by the Company.

 

(3)                                   The Guarantees have been duly authorized by the Company.

 

(4)                                   The execution, delivery and performance by the Company of its obligations under the Indenture and the Guarantees do not and will not violate Brazilian law.

 

(5)                                   The execution, delivery and performance by the Company of the Indenture and the Guarantees do not and will not constitute a breach or violation of the By-laws of the Company.

 

The opinions set forth above are, however, subject to the following qualifications:

 

(i)                                     The enforceability of the Indenture and the Guarantees shall be limited by any applicable bankruptcy law, insolvency law, and any other similar laws relating to or affecting creditors’ rights generally from time to time in effect, which laws shall, without limitation, in connection with right of payment, rank all unsecured indebtedness of the Company, without exception, subordinate and junior to all credits listed in Article 83, items I, II, III, IV and V of Federal Law No. 11,101, dated February 9, 2005 (the “Brazilian Bankruptcy Law”), which include, among others, credits of the following nature: (a) labor (in the case of labor claims, the preference is limited to credits of up to 150 Brazilian minimum wages), (b) debts guaranteed by in rem assets or rights up to the amount of the relevant asset or right, as the case may be, granted as an in rem guarantee, (c) social security, tax, fiscal and related claims against the Company (provided, however, that the list of credits in Article 84 of the Brazilian Bankruptcy Law include credits related to expenses and court costs derived from the Bankruptcy proceeding. Those credits do not follow the order of preference listed in Article 83 of the Brazilian Bankruptcy Law and, thus, payment thereof shall precede payment of the credits referred to in Article 83 of the Brazilian Bankruptcy Law). Foreign creditors participate in the distribution of the assets of the Company under equal conditions with Brazilian creditors, but foreign currency claims subject to a bankruptcy are converted into Brazilian currency at the rate of exchange in effect on

 

3



 

the date the bankruptcy is decreed, and their claim will be considered based on such value only.

 

(ii)                                  If any suit is brought against the Company, service of process upon the Company must be carried out in accordance with Brazilian law.

 

(iii)                               In respect of a foreign party, access to Brazilian courts is not subject to any conditions that are not applicable to residents of or a company incorporated in Brazil, except that any Brazilian or foreign entity that does not own real estate property in Brazil is required to pay certain court costs and to post a bond of guarantee with respect to court and legal fees; provided, however, that the requirement to post a bond of guarantee is not applicable in the event of an enforcement action filed by a foreign party against the Company based upon an extrajudicial executive title (“título executivo extrajudicial”), as per Article 836 of the Brazilian Civil Procedure Code (“Código de Processo Civil Brasileiro”).

 

(iv)                              To ensure the admissibility in evidence of any document required by any Brazilian court to be furnished: (i) any documents or instruments prepared in a language other than Portuguese (whether signed abroad or not) must be translated into Portuguese by a sworn translator; (ii) the signatures of the parties thereto signing outside Brazil must be notarized; (iii) the signature of the notary must be certified by a consular official of Brazil having jurisdiction to provide for such action; and (iv) the documents or instruments signed outside of Brazil must be registered at the appropriate Registry of Deeds and Documents in Brazil.

 

(v)                                 As a matter of Brazilian law, in case the principal obligations under the Indenture is deemed to be invalid and unenforceable, any ancillary obligation in connection therewith, such as the obligations under the Guarantees, shall be regarded as invalid and unenforceable as well.

 

(vi)                              Whenever applicable, the submission by the parties to the Indenture to the exclusive jurisdiction of the courts of the State of New York shall not be recognized as valid and binding under Brazilian law, as a Brazilian court of law may accept lawsuits filed in Brazil by any of the parties to the Indenture.

 

4



 

This opinion is given under and with respect only to the laws of Brazil as in force on the date hereof and we do not express any opinion under or with respect to the law of any other jurisdiction. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion. This opinion letter is provided to you by us in our capacity as your special counsel, and this opinion letter may not be relied upon by any person for any purpose other than you and the law firm of Sullivan & Cromwell LLP for purposes of the opinion to be delivered by such firm in connection with the Registration Statement.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Validity of Notes and Guarantees” in the prospectus that forms part of the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.

 

 

Very truly yours,

 

 

 

 

 

/s/ Veirano Advogados

 

 

VEIRANO ADVOGADOS

 

 

5




Exhibit 5.7

 

[Carey y Cia letterhead]

 

April 19, 2012

 

Kinross Gold Corporation

25 York Street

17th Floor

Toronto, Ontario

Canada M5J 2V5

 

Ladies and Gentlemen,

 

We are acting as special Chilean counsel to Compañía Minera Mantos de Oro (“ Mantos de Oro ”) and Compañía Minera Maricunga (“ Maricunga ” and together with Mantos de Oro, the “ Companies ”) in connection with the issuance by Kinross Gold Corporation (“ Kinross ”) of $250,000,000 aggregate principal amount of 3.625% Notes due 2016 (the “ New 2016 Notes ”), $500,000,000 aggregate principal amount of 5.125% Notes due 2021 (the “ New 2021 Notes ”) and $250,000,000 aggregate principal amount of 6.875% Notes due 2041 (the “ New 2041 Notes ” and together with the New 2016 Notes and the New 2021 Notes, the “ New Notes ”) . The New Notes are unconditionally guaranteed by the Companies (the “ Guarantees ”).

 

We understand that Kinross intends to offer to exchange the New Notes and the Guarantees for an equivalent principal amount of its outstanding notes, pursuant to an exchange offer registered with the United States Securities and Exchange Commission (“ SEC ”).

 

The New Notes will be issued pursuant to an indenture (the “ Indenture ”) dated as of August 22, 2011 among Kinross, certain subsidiaries of Kinross, including the Companies, as guarantors (the “ Subsidiary Guarantors ”) and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”).

 

In arriving at the opinions expressed herein, we have reviewed copies of the following documents:

 

(i)                                      the Offering Circular;

 

(ii)                                   the relevant Form F-9 and Form S-4;

 

(iii)                                the organizational documents of Mantos de Oro ( estatutos sociales );

 

(iv)                               the organizational documents of Maricunga ( estatutos sociales );

 



 

(v)                                  the minutes of the Board of Directors’ meeting of Maricunga, held on June 17, 2011, approving among other matters, the execution by Maricunga of the Indenture, the G uarantee and ancillary documentation stated therein , and granting special powers of attorney to any of Messrs . Andrés Jorge Verdugo Ramírez de Arellano , José Tomás Letelier Vial and Miguel Baeza Guiñez to act on Mantos de Oro ’s behalf in connection thereto;

 

(i)                                      the minutes of the Board of Directors’ meeting of Mantos de Oro, held on June 17, 2011, approving among other matters, the execution by Mantos de Oro of the Indenture, the G uarantee and ancillary documentation stated therein , and granting special powers of attorney to any of Messrs .  Andrés Jorge Verdugo Ramírez de Arellano, José Tomas Letelier Vial and Miguel Baeza Guíñez to act on Maricunga ’s behalf in connection thereto; and

 

(ii)                                   such other documents, agreements, corporate records, certificates, governmental approvals and filings, as we have considered necessary or appropriate for the purposes of this opinion.

 

The Offering Circular and the Form F-9 and Form S-4 are hereinafter referred to as the “ Agreements ”.

 

In addition, we have made such investigation of applicable laws and regulations as we have deemed appropriate as a basis for the opinions expressed below. With respect to matters of fact that we deem necessary to render this opinion, we have relied upon the representations and warranties of Kinross and the Companies contained in the Agreements and upon the representations, opinions and certificates of officers, representatives and advisors of Kinross and the Companies.

 

The opinions expressed herein are subject to the following qualifications:

 

First, we are attorneys admitted to practice in the Republic of Chile and we express no opinions as to any laws other than the laws of the Republic of Chile (“ Chilean Law ”).  In particular, we have made no independent investigation of the laws of the Province of Ontario, Canada and the State of New York, as a basis for our opinion, and have assumed that there is nothing in any such laws that affect our opinion.

 

Second, we have assumed, without any independent investigation or verification of any kind:

 

(i)                                      the authenticity of all documents and records presented as originals, and the conformity with the originals of all documents and records presented to us as copies;

 

2



 

(ii)                                   with respect to the certificates, documents and records, we have assumed the genuineness of all signatures, the legal capacity of the individuals signing, the accuracy and completeness of the factual representations made in the documents reviewed, and the authenticity of all items submitted to us as originals and the conformity with originals of all items submitted to us as copies;

 

(iii)                                with respect to all such items submitted to us as executed by, or granted before, public officers, we have assumed that each such public officer had the authorization, took all requisite action and duly delivered such items; and

 

(iv)                               the validity, binding effect and enforceability of the Indenture and the Guarantees under the laws of the State of New York .

 

Based upon and subject to the foregoing, we are of the opinion that:

 

1.                The Companies are duly organized and validly existing contractual mining companies ( sociedades contractuales mineras ) in good standing under the laws of Chile.

 

2.                The Indenture has been duly authorized by the Companies, and, to the extent such execution and delivery are matters governed by the laws of Chile, duly executed and delivered by the Companies.

 

3.                The Guarantees have been duly authorized by the Companies.

 

4.                The execution, delivery and performance by the Companies of their obligations under the Indenture and the Guarantees do not and will not violate Chilean Law.

 

5.                The execution, delivery and performance by the Companies of the Indenture and the Guarantees do not and will not constitute a breach or violation of (i) the by-laws of the Companies, (ii) any order of any court or governmental agency that is binding on the Companies or (iii) any agreement or instrument that is binding upon the Companies.

 

Additional Qualifications .

 

The foregoing opinions are subject to the following additional qualifications:

 

1.                                        This opinion is subject to the effect of (a) applicable bankruptcy, liquidation, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting the rights of creditors generally; and (b) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law.

 

3



 

2.                                        This opinion speaks only as of the date hereof.  We expressly disclaim any responsibility to advise you of any development or circumstance of any kind including any change of law or fact that may occur after the date of this letter even though such development, circumstance or change may affect the legal analysis, a legal conclusion or any other matter set forth in or relating to this letter.  Accordingly, any person relying on this opinion at any time after the date hereof should seek advice of its counsel as to the proper application of this opinion at such time.

 

3.                                        This opinion is being delivered to you for your use only in connection with the filing of a Registration Statement (the “Registration Statement”) with respect to the New Notes and the Guarantees with the SEC and may not be relied upon by any person other than you and the law firm of Sullivan & Cromwell LLP for purposes of the opinion to be delivered by such firm in connection with the Registration Statement.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “ Validity of Notes and Guarantees ” in the prospectus that forms part of the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.

 

Very truly yours,

 

 

 

 

 

/s/ Carey y Cia. Ltda.

 

 

Carey y Cia. Ltda.

 

4




Exhibit 5.8

 

50 West Liberty Street

Suite 750

Reno, Nevada  89501

Telephone 775.323.1601

Facsimile 775.348.7250

 

GRAPHIC

 

 

April 19, 2012

 

Kinross Gold Corporation

25 York Street, 17th Floor

Toronto, Ontario, Canada M5J 2V5

 

Re:                              Kinross Gold U.S.A., Inc.

 

Ladies and Gentlemen:

 

We have acted as special Nevada counsel to Kinross Gold U.S.A., Inc., a Nevada corporation (the “ Company ”), in connection with the issuance by Kinross Gold Corporation (“ Kinross ”) of $250,000,000 aggregate principal amount of 3.625% Notes due 2016 (the “ New 2016 Notes ”), $500,000,000 aggregate principal amount of 5.125% Notes due 2021 (the “ New 2021 Notes ”) and $250,000,000 aggregate principal amount of 6.875% Notes due 2041 (the “ New 2041 Notes ” and together with the New 2016 Notes and the New 2021 Notes, the “ New Notes ”) .  The New Notes will be unconditionally guaranteed by the Company (the “ Guarantees ”).

 

We understand that Kinross intends to offer to exchange the New Notes and the Guarantees for an equivalent principal amount of its outstanding notes, pursuant to an exchange offer registered with the United States Securities and Exchange Commission (“ SEC ”).  The New Notes will be issued pursuant to an indenture (the “ Indenture ”) dated as of August 22, 2011 among Kinross, certain subsidiaries of Kinross, including the Company, as guarantors and Wells Fargo Bank, National Association, as trustee.

 

We have examined originals, or copies certified or otherwise identified to our satisfaction, of the Indenture, the Guarantees and a certificate of an officer of the Company (the “ Officer’s Certificate ”) and exhibits thereto.

 

We have examined originals or copies, certified or otherwise identified to our satisfaction, of such public and corporate records, certificates, instruments and other documents and have considered such questions of law as we have deemed relevant and necessary as a basis for the opinions hereinafter expressed. In such examination, we have assumed the legal capacity of all natural persons signing or delivering any instrument, the genuineness of all signatures, the authority of all persons signing the Indenture and the Guarantees on behalf of the parties thereto (other than the Company), the authenticity of all documents submitted to us as originals and the conformity to authentic original documents

 



 

of all documents submitted to us as copies, whether facsimile, photostatic, certified, attachments to electronic messages or otherwise.

 

As to factual matters, we have relied, without any independent investigation or verification, on the representations and warranties contained in the Indenture, the Guarantees and the Officer’s Certificate. For the purposes of our opinion in paragraph 1 below, we have relied exclusively upon a Certificate of Good Standing dated April 17, 2012 issued by the Secretary of State of Nevada.

 

For the purposes of this opinion we have also assumed, without any independent investigation, that each of the parties (other than the Company) to the Indenture and to the Guarantees is duly organized, validly existing and in good standing in their respective jurisdictions of organization, have the power, corporate or other, to enter into and perform all actions thereunder, and that each such party has been duly authorized by all requisite action, corporate or other, to execute and deliver the Indenture and the Guarantees, and that the Indenture and the Guarantees are such other parties’ legal, valid and binding obligations enforceable against such parties in accordance with their terms.

 

Based and relying upon the foregoing, and subject to the qualifications and limitations hereinafter expressed, we are of the opinion that:

 

1.                                        The Company is duly incorporated, validly existing and in good standing under the laws of the State of Nevada.

 

2.                                        The Indenture has been duly authorized by all necessary corporate action on the part of the Company and, to the extent such execution and delivery are matters governed by the laws of the State of Nevada, duly executed and delivered by the Company.

 

3.                                        The Guarantees have been duly authorized by all necessary corporate action on the part of the Company.

 

4.                                        The execution, delivery and performance by the Company of the Indenture and the Guarantees do not and will not violate the laws of the State of Nevada or the Articles of Incorporation or By-laws of the Company.

 

The opinions expressed above are predicated upon, limited by and subject to the following limitations, assumptions and qualifications in addition to those set forth elsewhere herein:

 

(a)                                   This opinion is limited to matters involving the laws of the State of Nevada in effect as of the date of this opinion, and we do not express any opinion as to the laws of any other jurisdiction and have no responsibility to advise you of changes in laws or regulations which may hereafter come to our attention.

 

2



 

Without limiting the foregoing, we advise you that we have not reviewed local ordinances of municipalities and counties located in the State of Nevada for the purposes of rendering this opinion.

 

(b)                                  The opinions expressed herein do not address any of the following legal issues:  (i) fraudulent transfer and fraudulent conveyance laws; (ii) securities and tax laws and regulations; (iii) patent, copyright and trademark and other intellectual property laws and regulations; (iv) racketeering laws and regulations; (v) labor laws and regulations including, but not limited to, the Employee Retirement Income Security Act; (vi) laws, regulations and policies concerning national and local emergency or criminal and civil forfeiture laws; (vii) statutes of general application to the extent they provide for criminal prosecution; (viii) antitrust laws; and (ix) claims against any government or governmental agency (including without limitation, the United States of America or any state thereof or any agency or department of the United States of America or state thereof).

 

This opinion is limited to the matters expressly set forth herein and no opinion is implied or may be inferred beyond the matters expressly set forth herein. This opinion is being delivered to you for your use only in connection with the filing of a Registration Statement (the “ Registration Statement ”) with respect to the New Notes and the Guarantees with the SEC and may not be relied upon by any person other than you and the law firm of Sullivan & Cromwell LLP for purposes of the opinion to be delivered by such firm in connection with the Registration Statement.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “ Validity of Notes and Guarantees ” in the prospectus that forms part of the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933.

 

/s/ Parsons Behle & Latimer

 

 

3




Exhibit 12.1

 

Statement of Computation of Ratio of Earnings to Fixed Charges

(in millions, except ratios)

 

 

 

2007 (a)

 

2008 (a)

 

2009 (a)

 

2010 (b)

 

2011 (b)

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings (Loss):

 

 

 

 

 

 

 

 

 

 

 

Earnings (loss) before taxes, minority interests in consolidated subsidiaries, and income or loss from equity investees

 

392.0

 

(649.7

)

567.1

 

1,206.8

 

(1,499.9

)

Add (deduct):

 

 

 

 

 

 

 

 

 

 

 

Fixed charges

 

38.2

 

105.2

 

27.7

 

49.6

 

71.2

 

Amortization of capitalized interest

 

0.8

 

5.8

 

8.6

 

 

 

Distributed income of equity investees

 

 

 

6.8

 

12.9

 

 

Interest capitalized

 

(31.4

)

(30.6

)

(8.6

)

(1.1

)

(26.5

)

Preference dividend of consolidated subsidiaries

 

(0.8

)

(0.8

)

 

 

 

Minority interest in pre-tax income of subsidiaries that have not incurred fixed charges

 

 

 

 

(1.8

)

(13.0

)

Total earnings (loss) available for fixed charges

 

398.8

 

(570.1

)

601.6

 

1,266.4

 

(1,468.2

)

Fixed Charges:

 

 

 

 

 

 

 

 

 

 

 

Interest expense, including capitalized amounts and amortization of debt costs

 

38.2

 

105.2

 

27.7

 

49.6

 

71.2

 

 

 

 

 

 

 

 

 

 

 

 

 

Ratio of Earnings to Fixed Charges

 

10.4

 

(c), (e)

21.7

 

25.5

 

(c), (d)

 


(a)   Information presented for the years 2007 to 2009 has not been restated to conform with IFRS, and is presented based on financial information prepared in accordance with US generally accepted accounting principles.

 

(b)   Information presented for the years 2010 and 2011 has been prepared based on financial information presented in accordance with International Financial Reporting Standards (“IFRS”).

 

(c)   Due to our losses for the years ended December 31, 2008 and 2011, the ratio of earnings to fixed charges was negative for these years. We would have had to generate additional earnings before taxes of $675.3 million and $1,539.4 million for the years ended December 31, 2008 and 2011, respectively, to have achieved earnings to fixed charge ratios of one-to-one.

 

(d)   The loss for the year ended December 31, 2011 included the effect of a $2,937.6 million non-cash goodwill impairment charge. The effect of this charge was to reduce the ratio of earnings to fixed charges. Had this charge been excluded from the calculation, the ratio of earnings to fixed charges would have been 20.6 for the year ended December 31, 2011.

 

(e)   The loss for the year ended December 31, 2008 included the effect of a $994.1 million non-cash goodwill impairment charge. The effect of this charge was to reduce the ratio of earnings to fixed charges. Had this charge been excluded from the calculation, the ratio of earnings to fixed charges would have been 4.0 for the year ended December 31, 2008.

 




Exhibit 23.1

 

AUDITORS’ CONSENT

 

We agree to the incorporation by reference of:

 

·                       our Report of Independent Registered Public Accounting Firm dated February 15, 2012, except as to notes 23 and 24, which are as of March 23, 2012, on the consolidated balance sheets of the Company as at December 31, 2011, December 31, 2010 and January 1, 2010 and the related consolidated statements of operations, comprehensive income (loss), cash flows and equity for the years ended December 31, 2011 and December 31, 2010; and

 

·                       our Report of Independent Registered Public Accounting Firm dated February 15, 2012 on the Company’s internal control over financial reporting as of December 31, 2011

 

in the Form F-9 of Kinross Gold Corporation dated April 27, 2012 in connection with the offer to exchange all outstanding 3.625% Notes due 2016 issued on August 22, 2011 for up to US$250,000,000 aggregate principal amount of registered 3.625% Notes due 2016, all outstanding 5.125% Notes due 2021 issued on August 22, 2011 for up to US$500,000,000 aggregate principal amount of registered 5.125% Notes due 2021, and all outstanding 6.875% Notes due 2041 issued on August 22, 2011 for up to US$250,000,000 aggregate principal amount of registered 6.875% Notes due 2041 of Kinross Gold Corporation.

 

/s/ KPMG LLP

 

Chartered Accountants, Licensed Public Accountants

 

Toronto, Canada

 

April 27, 2012

 

 

 




Exhibit 23.10

 

CONSENT OF EXPERT

 

In connection with the Registration Statement on Forms F-9/S-4 and any amendment thereto (the “Registration Statement”) of the registrants, I, Rob Henderson , hereby consent to the use of my name in connection with the references to the scientific and technical information relating to Kinross Gold Corporation’s mineral properties contained in or incorporated by reference on the Form S-4.

 

 

Date: April 19, 2012

By:

/s/ Rob Henderson

 

 

Rob Henderson

 




Exhibit 23.11

 

CONSENT OF EXPERT

 

In connection with the Registration Statement on Forms F-9/S-4 and any amendment thereto (the “Registration Statement”) of the registrants, I, Mark Sedore , hereby consent to the use of my name in connection with the references to the scientific and technical information relating to Kinross Gold Corporation’s mineral properties contained in or incorporated by reference on the Form S-4.

 

 

Date: April 19, 2012

By:

/s/ Mark Sedore

 

 

Mark Sedore

 




Exhibit 23.12

 

CONSENT OF EXPERT

 

In connection with the Registration Statement on Forms F-9/S-4 and any amendment thereto (the “Registration Statement”) of the registrants, I, Wayne Barnett , hereby consent to the use of my name in connection with the references to the technical information relating to Kinross Gold Corporation’s White Gold mineral resource contained in or incorporated by reference on the Form S-4.

 

 

Date: April 19, 2012

By:

/s/ Wayne Barnett

 

 

Wayne Barnett

 




Exhibit 23.13

 

CONSENT OF EXPERT

 

In connection with the Registration Statement on Forms F-9/S-4 and any amendment thereto (the “Registration Statement”) of the registrants, I, Marek Nowak , hereby consent to the use of my name in connection with the references to the technical information relating to Kinross Gold Corporation’s White Gold mineral resource contained in or incorporated by reference on the Form S-4.

 

 

Date: April 19, 2012

By:

/s/ Marek Nowak

 

 

Marek Nowak

 




Exhibit 25.1

 

 

 

SECURITIES AND EXCHANGE COMMISSION

 

Washington, D.C.  20549

 


 

FORM T-1

 

STATEMENT OF ELIGIBILITY

UNDER THE TRUST INDENTURE ACT OF 1939 OF A

CORPORATION DESIGNATED TO ACT AS TRUSTEE

 


 

o   CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

(Exact name of trustee as specified in its charter)

 

A National Banking Association

 

94-1347393

(Jurisdiction of incorporation or

 

(I.R.S. Employer

organization if not a U.S. national

 

Identification No.)

bank)

 

 

 

101 North Phillips Avenue

 

 

Sioux Falls, South Dakota

 

57104

(Address of principal executive offices)

 

(Zip code)

 

Wells Fargo & Company
Law Department, Trust Section

MAC N9305-175

Sixth Street and Marquette Avenue, 17 th  Floor

Minneapolis, Minnesota 55479

(612) 667-4608

(Name, address and telephone number of agent for service)

 


 

KINROSS GOLD CORPORATION

(Exact name of obligor as specified in its charter)

 

Ontario

 

Not Applicable

(State or other jurisdiction of

 

(I.R.S. Employer

incorporation or organization)

 

Identification No.)

 

TABLE OF ADDITIONAL REGISTRANTS

 

Form F-9

 

Exact Name of Co-Registrant as Specified in its Charter

 

I.R.S. Employer
Identification No.

 

State or Other Jurisdiction of
Incorporation or Organization

Aurelian Resources Inc.

 

N/A

 

Canada

Red Back Mining Mauritania No. 2 Limited

 

N/A

 

British Columbia

Red Back Mining Inc.

 

N/A

 

Canada

 

Form S-4

 

Exact Name of Co-Registrant as Specified in its Charter

 

I.R.S. Employer
Identification No.

 

State or Other Jurisdiction of
Incorporation or Organization

BGO (Bermuda) Ltd.

 

N/A

 

Bermuda

Kinross Brasil Mineraçao S.A.

 

N/A

 

Federative Republic of Brazil

Kinross Gold U.S.A., Inc.

 

87-0364965

 

Nevada

Crown Resources Corporation

 

84-1097086

 

Washington

Fairbanks Gold Mining, Inc.

 

06-1325563

 

Delaware

Melba Creek Mining, Inc.

 

92-0129829

 

Alaska

Compañía Minera Mantos de Oro

 

N/A

 

Republic of Chile

Compañía Minera Maricunga

 

N/A

 

Republic of Chile

Round Mountain Gold Corporation

 

88-0211837

 

Delaware

 

25 York Street
17th Floor
Toronto, Ontario Canada

 

M5J 2V5

(Address of principal executive offices)

 

(Zip code)

 


 

3.625% Notes due 2016
5.125% Notes due 2021

6.875% Notes due 2041

(Title of the indenture securities)

 

 

 



 

Item 1.  General Information. Furnish the following information as to the trustee:

 

 

 

 

(a)

Name and address of each examining or supervising authority to which it is subject.

 

 

 

 

 

Comptroller of the Currency

 

 

Treasury Department

 

 

Washington, D.C.

 

 

 

 

 

 

Federal Deposit Insurance Corporation

 

 

Washington, D.C.

 

 

 

 

 

 

Federal Reserve Bank of San Francisco

 

 

San Francisco, California 94120

 

 

 

 

 

(b)

Whether it is authorized to exercise corporate trust powers.

 

 

 

 

 

 

The trustee is authorized to exercise corporate trust powers.

 

 

 

 

 

Item 2.  Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.

 

 

 

 

None with respect to the trustee.

 

 

 

 

 

No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.

 

 

 

 

Item 15. Foreign Trustee.

Not applicable.

 

 

 

 

Item 16. List of Exhibits.

List below all exhibits filed as a part of this Statement of Eligibility.

 

 

 

 

Exhibit 1.

A copy of the Articles of Association of the trustee now in effect.*

 

 

 

 

Exhibit 2.

A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo Bank, National Association, dated February 4, 2004.**

 

 

 

 

Exhibit 3.

See Exhibit 2

 

 

 

 

 

 

Exhibit 4.

Copy of By-laws of the trustee as now in effect.***

 

 

 

 

Exhibit 5.

Not applicable.

 

 

 

 

 

 

Exhibit 6.

The consent of the trustee required by Section 321(b) of the Act.

 

 

 

 

Exhibit 7.

A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.

 

 

 

 

Exhibit 8.

Not applicable.

 

 

 

 

 

 

Exhibit 9.

Not applicable.

 

 

 



 


*      Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated December 30, 2005 of file number 333-130784-06.

 

 

**   Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form T-3 dated March 3, 2004 of file number 022-28721.

 

 

*** Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated May 26, 2005 of file number 333-125274.

 



 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York on the 12th day of April, 2012.

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

 

 

 

 

/s/ Martin G. Reed

 

Martin G. Reed

 

Vice President

 



 

EXHIBIT 6

 

April 12, 2012

 

Securities and Exchange Commission

Washington, D.C.  20549

 

Gentlemen:

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

 

 

Very truly yours,

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

 

 

 

 

/s/ Martin G. Reed

 

Martin G. Reed

 

Vice President

 



 

EXHIBIT 7

Consolidated Report of Condition of

 

Wells Fargo Bank National Association

of 101 North Phillips Avenue, Sioux Falls, SD 57104

And Foreign and Domestic Subsidiaries,

at the close of business December 31, 2011, filed in accordance with 12 U.S.C. §161 for National Banks.

 

 

 

 

 

Dollar Amounts
In Millions

 

ASSETS

 

 

 

 

 

Cash and balances due from depository institutions:

 

 

 

 

 

Noninterest-bearing balances and currency and coin

 

 

 

$

19,751

 

Interest-bearing balances

 

 

 

23,384

 

Securities:

 

 

 

 

 

Held-to-maturity securities

 

 

 

0

 

Available-for-sale securities

 

 

 

195,800

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

 

 

Federal funds sold in domestic offices

 

 

 

4,151

 

Securities purchased under agreements to resell

 

 

 

23,225

 

Loans and lease financing receivables:

 

 

 

 

 

Loans and leases held for sale

 

 

 

28,417

 

Loans and leases, net of unearned income

 

711,276

 

 

 

LESS: Allowance for loan and lease losses

 

16,360

 

 

 

Loans and leases, net of unearned income and allowance

 

 

 

694,916

 

Trading Assets

 

 

 

56,692

 

Premises and fixed assets (including capitalized leases)

 

 

 

7,977

 

Other real estate owned

 

 

 

4,485

 

Investments in unconsolidated subsidiaries and associated companies

 

 

 

607

 

Direct and indirect investments in real estate ventures

 

 

 

99

 

Intangible assets

 

 

 

 

 

Goodwill

 

 

 

21,252

 

Other intangible assets

 

 

 

22,891

 

Other assets

 

 

 

57,843

 

 

 

 

 

 

 

Total assets

 

 

 

$

1,161,490

 

 

 

 

 

 

 

LIABILITIES

 

 

 

 

 

Deposits:

 

 

 

 

 

In domestic offices

 

 

 

$

832,749

 

Noninterest-bearing

 

234,375

 

 

 

Interest-bearing

 

598,374

 

 

 

In foreign offices, Edge and Agreement subsidiaries, and IBFs

 

 

 

72,904

 

Noninterest-bearing

 

2,140

 

 

 

Interest-bearing

 

70,764

 

 

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

 

 

Federal funds purchased in domestic offices

 

 

 

2,591

 

Securities sold under agreements to repurchase

 

 

 

13,050

 

Trading liabilities

 

 

 

23,460

 

Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)

 

 

 

39,703

 

Subordinated notes and debentures

 

 

 

18,609

 

Other liabilities

 

 

 

33,933

 

 

 

 

 

 

 

Total liabilities

 

 

 

$

1,036,999

 

 

 

 

 

 

 

EQUITY CAPITAL

 

 

 

 

 

Perpetual preferred stock and related surplus

 

 

 

0

 

Common stock

 

 

 

519

 

Surplus (exclude all surplus related to preferred stock)

 

 

 

99,326

 

Retained earnings

 

 

 

18,744

 

Accumulated other comprehensive income

 

 

 

4,769

 

Other equity capital components

 

 

 

0

 

 

 

 

 

 

 

Total bank equity capital

 

 

 

123,358

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

 

 

1,133

 

 

 

 

 

 

 

Total equity capital

 

 

 

124,491

 

 

 

 

 

 

 

Total liabilities, and equity capital

 

 

 

$

1,161,490

 

 



 

I, Timothy J. Sloan, EVP & CFO of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief.

 

 

Timothy J. Sloan

 

EVP & CFO

 

We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

John Stumpf

Directors

Carrie Tolstedt

 

Michael Loughlin

 

 




EXHIBIT 99.1

 

LETTER OF TRANSMITTAL

 

KINROSS GOLD CORPORATION

 

OFFER TO EXCHANGE ALL OUTSTANDING
3.625% SENIOR NOTES DUE 2016
ISSUED ON AUGUST 22, 2011 FOR
3.625% SENIOR NOTES DUE 2016

 

AND

 

5.125% SENIOR NOTES DUE 2021
ISSUED ON AUGUST 22, 2011 FOR
5.125% SENIOR NOTES DUE 2021

 

AND

 

6.875% SENIOR NOTES DUE 2041
ISSUED ON AUGUST 22, 2011 FOR
6.875% SENIOR NOTES DUE 2041

 

UNCONDITIONALLY GUARANTEED BY AURELIAN RESOURCES INC., RED BACK MINING MAURITANIA NO.2 LTD., RED BACK MINING INC., BGO (BERMUDA) LTD., KINROSS BRASIL MINERACAO S.A., KINROSS GOLD U.S.A, INC., CROWN RESOURCES CORPORATION, FAIRBANKS GOLD MINING, INC., MELBA CREEK MINING, INC., COMPANIA MINERA MANTOS DE ORO, COMPANIA MINERA MARICUNGA, ROUND MOUNTAIN GOLD CORPORATION

 

WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933

 

Pursuant to the Prospectus dated                     , 2012,

 


THE EXCHANGE OFFER WILL EXPIRE AT 5:00 p.m., NEW YORK CITY TIME, ON                     , 2012 UNLESS EXTENDED (THE “ EXPIRATION DATE ”). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. WHERE THE EXPIRATION DATE HAS BEEN EXTENDED, TENDERS PURSUANT TO THE EXCHANGE OFFER AS OF THE PREVIOUSLY SCHEDULED EXPIRATION DATE MAY NOT BE WITHDRAWN AFTER THE DATE OF THE PREVIOUSLY SCHEDULED EXPIRATION DATE.

 

DELIVERY TO:

 

Wells Fargo Bank, National Association, Exchange Agent

 

By Registered or Certified Mail:

 

WELLS FARGO BANK, N.A.

Corporate Trust Operations

MAC N9303-121

PO Box 1517

Minneapolis, MN 55480

By Regular Mail or Overnight Courier:

 

WELLS FARGO BANK, N.A.

Corporate Trust Operations

MAC N9303-121

PO Box 1517

Minneapolis, MN 55480

In Person by Hand Only:

 

WELLS FARGO BANK, N.A.

12 th Floor — Northstar East Building

Corporate Trust Operations

608 Second Avenue South

Minneapolis, MN 55479

By Facsimile:

 

(For Eligible Institutions only):

fax. (612) 667-6282

Attn. Bondholder Communications

 

For Information or Confirmation by Telephone:

(800) 344-5128, Option 0

Attn. Bondholder Communication

 

Delivery of this Letter of Transmittal to an address other than as set forth above, or transmission of this Letter of Transmittal via facsimile to a number other than as set forth above, will not constitute a valid delivery. Please read the instructions set forth in this Letter of Transmittal carefully before completing any box below.

 



 

The undersigned acknowledges that he, she or it has received this Letter of Transmittal (the “ Letter ”) and the Prospectus, dated                     , 2012 (the “ Prospectus ”), of Kinross Gold Corporation (the “ Issuer ”) relating to its offer to exchange (i) up to $250,000,000 aggregate principal amount of its 3.625% Notes due 2016 (the “ New 2016 Notes ”), which have been registered under the Securities Act of 1933, as amended (the “ Securities Act ”), for a like principal amount of its issued and outstanding 3.625% Notes due 2016 (the “ Initial 2016 Notes ”), (ii) up to $500,000,000 aggregate principal amount of its 5.125% Notes due 2021 (the “ New 2021 Notes ”) which have been registered under the Securities Act for a like principal amount of its issued and outstanding 5.125% Notes due 2021 (the “ Initial 2021 Notes ”),and (iii) up to $250,000,000 aggregate principal amount of its 6.875% Notes due 2041 (the “ New 2041 Notes ”, and together with the New 2016 Notes, the New 2021 Notes, and the New Guarantees (defined below), the “ New Notes ”) which have been registered under the Securities Act for a like principal amount of its issued and outstanding 6.875% Notes due 2041(the “ Initial 2041 Notes ” together with the Initial 2016 Notes, the Initial 2021 Notes, and the Initial 2041 Notes, the “ Initial Notes ”), in all cases, by the registered holders thereof (“Holders”).  The New Notes are unconditionally guaranteed (the “ New Guarantees ”) by Aurelian Resources Inc., Red Back Mining Mauritania No. 2 Limited, Red Back Mining Inc., BGO (Bermuda) Ltd., Kinross Brasil Mineracao S.A., Kinross Gold U.S.A., Inc., Crown Resources Corporation, Fairbanks Gold Mining, Inc., Melba Creek Mining, Inc. Compania Minera Mantos de Oro, Compania Minera Maricunga and Round Mountain Gold Corporation (the “ Guarantors ”).  The Prospectus and this Letter together constitute the Issuer’s offers to exchange (the “ Exchange Offer ”) its New Notes of each series, including the New Guarantees, for a like principal amount of its Initial Notes of the respective series, including guarantees, from the Holders.

 

As described herein, all Initial Notes of a series properly tendered for exchange will either be exchanged for New Notes of the respective series or will be returned promptly after the termination or withdrawal of the Exchange Offer. For each Initial Note accepted for exchange, the Holder of such Initial Note will receive a New Note having a principal amount equal to that of, and representing the same indebtedness of that represented by, the surrendered Initial Note and with an unconditional Guarantee by the Guarantors identical to the guarantee of the Initial Note. The New Notes of each series will accrue interest from the last interest payment date on which interest was paid on the Initial Notes of such series or, if no interest has been paid on the Initial Notes, from the issue date of the Initial Notes. Accordingly, registered Holders of New Notes on the relevant record date for the first interest payment date following the consummation of the Exchange Offer will receive interest accruing from the last interest payment date on which interest was paid or, if no interest has been paid, from the issue date of the Initial Notes. Initial Notes accepted for exchange will cease to accrue interest from and after the date of consummation of the Exchange Offer. Holders of Initial Notes whose Initial Notes are accepted for exchange will not receive any payment in respect of accrued interest on such Initial Notes otherwise payable on any interest payment date the record date for which occurs on or after consummation of the Exchange Offer.

 

This Letter is to be completed by a Holder of Initial Notes if a tender of Initial Notes is to be made by book-entry transfer to the account maintained by the Exchange Agent at The Depository Trust Company (“ DTC ”) (the “ Book-Entry Transfer Facility ”) pursuant to the procedures set forth in “Exchange Offer — Terms of the Exchange Offer —Book-Entry Transfer” section of the Prospectus. Holders of Initial Notes who are unable to deliver confirmation of the book-entry tender of their Initial Notes into the Exchange Agent’s account at the Book-Entry Transfer Facility (a “ Book-Entry Confirmation ”) and all other documents required by this Letter to the Exchange Agent on or prior to the Expiration Date, must tender their Initial Notes according to the guaranteed delivery procedures set forth in “Exchange Offer—Terms of the Exchange Offer—Guaranteed Delivery Procedures” section of the Prospectus. See Instruction 1. Delivery of documents to the Book-Entry Transfer Facility does not constitute delivery to the Exchange Agent.

 

List below the Initial Notes to which this Letter relates. If the space provided below is inadequate, the principal amount of Initial Notes should be listed on a separate signed schedule affixed hereto.

 

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DESCRIPTION OF INITIAL NOTES

 

(1)

 

(2)

 

(3)

Name(s) and Address(es) of Registered
Holder(s) of Initial Notes, Exactly as
the Name of the Participant Appears on
the Book-Entry Transfer Facility’
Security Position Listing 
(Please fill in, if blank)

 

Aggregate Principal Amount

 

Principal Amount of
Initial Note(s) Tendered*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL

 

 

 


*                  Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Initial Notes represented by the Initial Notes indicated in column 2. Initial Notes tendered hereby must be in denominations of principal amount of $2,000 and any integral multiple of $1,000 in excess thereof. See Instruction 1.

 

o             CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:

 

Name of Tendering Institution

 

Account Number

 

Transaction Code Number

 

BY CREDITING THE INITIAL NOTES TO THE EXCHANGE AGENT’S ACCOUNT WITH THE BOOK-ENTRY TRANSFER FACILITY’S ATOP AND BY COMPLYING WITH THE APPLICABLE ATOP PROCEDURES WITH RESPECT TO THE EXCHANGE OFFER, THE HOLDER OF THE NOTES ACKNOWLEDGES AND AGREES TO BE BOUND BY THE TERMS FO THIS LETTER OF TRANSMITTAL AND CONFIRMS ON BEHALF OF ITSELF AND THE BENEFICIAL OWNER OF SUCH INITIAL NOTES ALL PROVISIONS OF THIS LETTER OF TRANSMITTAL APPLICABLE TO IT AND SUCH BENEFICIAL OWNERS AS FULLY AS IF SUCH BENEFICIAL OWNERS HAD COMPLETED THE INFORMATION REQUIRED HEREIN AND EXECUTED AND TRANSMITTED THIS LETTER OF TRANSMITTAL.

 

o             CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING :

 

Name(s) of Registered Holder(s)

 

Window Ticket Number (if any)

 

Date of Execution of Notice of Guaranteed Delivery

 

Name of Institution That Guaranteed Delivery

 

Account Number

 

Transaction Code Number

 

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o             CHECK HERE IF YOU ARE A BROKER-DEALER ENTITLED, PURSUANT TO THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT REFERRED TO IN THE PROSPECTUS, TO RECEIVE, AND WISH TO RECEIVE, 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO WITHIN 180 DAYS AFTER THE EXPIRATION DATE.

 

Name:

 

Address:

 

IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED REPRESENTS THAT IT IS NOT PARTICIPATING IN, AND DOES NOT INTEND TO PARTICIPATE IN, A DISTRIBUTION OF NEW NOTES. IF THE UNDERSIGNED IS A BROKER-DEALER THAT WILL RECEIVE NEW NOTES FOR ITS OWN ACCOUNT IN EXCHANGE FOR INITIAL NOTES THAT WERE ACQUIRED AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, IT ACKNOWLEDGES AND REPRESENTS THAT IT WILL DELIVER A PROSPECTUS MEETING THE REQUIREMENTS OF THE SECURITIES ACT, IN CONNECTION WITH ANY RESALE OF SUCH NEW NOTES; HOWEVER, BY SO ACKNOWLEDGING AND REPRESENTING AND BY DELIVERING SUCH A PROSPECTUS THE UNDERSIGNED WILL NOT BE DEEMED TO ADMIT THAT IT IS AN “UNDERWRITER” WITHIN THE MEANING OF THE SECURITIES ACT. IF THE UNDERSIGNED IS A BROKER-DEALER THAT WILL RECEIVE NEW NOTES, IT REPRESENTS THAT THE INITIAL NOTES TO BE EXCHANGED FOR THE NEW NOTES WERE ACQUIRED AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES. IN ADDITION, SUCH BROKER-DEALER REPRESENTS THAT IT IS NOT ACTING ON BEHALF OF ANY PERSON WHO COULD NOT TRUTHFULLY MAKE THE FOREGOING REPRESENTATIONS.

 

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PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY

 

Ladies and Gentlemen:

 

Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Issuer the aggregate principal amount of Initial Notes indicated above. Subject to, and effective upon, the acceptance for exchange of the Initial Notes tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon the order of, the applicable Issuer all right, title and interest in and to such Initial Notes as are being tendered hereby.

 

The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the undersigned’s true and lawful agent and attorney-in-fact with respect to such tendered Initial Notes, with full power of substitution, among other things, to cause the Initial Notes to be assigned, transferred and exchanged.

 

The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Initial Notes, and to acquire New Notes issuable upon the exchange of such tendered Initial Notes, and that, when such Initial Notes are accepted for exchange, the Issuer will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim when the same are accepted by the Issuer. The undersigned hereby further represents and warrants that any New Notes acquired in exchange for Initial Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such New Notes, whether or not such person is the undersigned, that neither the Holder of such Initial Notes nor any such other person is participating in, intends to participate in or has an arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of Initial Notes or New Notes, that neither the Holder of such Initial Notes nor any such other person is an “affiliate,” as defined in Rule 405 under the Securities Act, of the Issuer and that neither the Holder of such Initial Notes nor such other person is acting on behalf of any person who could not truthfully make the foregoing representations and warranties.

 

The undersigned acknowledges that this Exchange Offer is being made in reliance on interpretations by the staff of the Securities and Exchange Commission (the “ SEC ”), as set forth in no-action letters issued to third parties, that the New Notes issued pursuant to the Exchange Offer in exchange for the Initial Notes may be offered for resale, resold and otherwise transferred by Holders thereof (other than any such Holder that is a broker-dealer or an “affiliate” of the Issuer within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such Holder’s business, at the time of commencement of the Exchange Offer such Holder has no arrangement or understanding with any person to participate in a distribution of such New Notes, and such Holder is not engaged in, and does not intend to engage in, a distribution of such New Notes. However, the SEC has not considered the Exchange Offer in the context of a no-action letter and there can be no assurance that the staff of the SEC would make a similar determination with respect to the Exchange Offer as in other circumstances. If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of New Notes and has no arrangement or understanding to participate in a distribution of New Notes. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Initial Notes, it represents that the Initial Notes to be exchanged for the New Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus meeting the requirements of the Securities Act, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

 

The SEC has taken the position that such broker-dealers may fulfill their prospectus delivery requirements with respect to the New Notes (other than a resale of New Notes received in exchange for an unsold allotment from the original sale of the Initial Notes) with the Prospectus. The Prospectus, as it may be amended or supplemented from time to time, may be used by certain broker-dealers (as specified in the Registration Rights Agreement referenced in the Prospectus) (“ Participating Broker-Dealers ”) for a period of time, starting on the Expiration Date and ending on the earlier of the close of business 180 days after the Expiration Date in connection with the sale or transfer of such New Notes or such time as such Participating Broker-Dealers no longer own any Initial Notes, other than Initial Notes acquired from the Issuer. The Issuer has agreed that, for such period of time, it will make the Prospectus (as it may be amended or supplemented) available to such a broker-dealer which elects to exchange

 

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Initial Notes, acquired for its own account as a result of market making or other trading activities, for New Notes pursuant to the Exchange Offer for use in connection with any resale of such New Notes. By accepting the Exchange Offer, each broker-dealer that receives New Notes pursuant to the Exchange Offer acknowledges and agrees to notify the Issuers prior to using the Prospectus in connection with the sale or transfer of New Notes and that, upon receipt of notice from the Issuer of the happening of any event which makes any statement in the Prospectus untrue in any material respect or which requires the making of any changes in the Prospectus in order to make the statements therein (in light of the circumstances under which they were made) not misleading, such broker-dealer will suspend use of the Prospectus until (i) the Issuer has amended or supplemented the Prospectus to correct such misstatement or omission and (ii) the Issuer has furnished copies of the amended or supplemented Prospectus to such broker-dealer or, if the Issuer has not otherwise agreed to furnish such copies and decline to do so after such broker-dealer so requests, such broker-dealer has obtained a copy of such amended or supplemented Prospectus as filed with the SEC. Except as described above, the Prospectus may not be used for or in connection with an offer to resell, a resale or any other retransfer of New Notes. A broker-dealer that acquired Initial Notes in a transaction other than as part of its market-making activities or other trading activities will not be able to participate in the Exchange Offer.

 

The undersigned will, upon request, execute and deliver any additional documents deemed by the Issuer to be necessary or desirable to complete the sale, assignment and transfer of the Initial Notes tendered hereby. All authority conferred or agreed to be conferred in this Letter and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. This tender may be withdrawn only in accordance with the procedures set forth in “Exchange Offer—Terms of the Exchange Offer—Withdrawal of Tenders” section of the Prospectus.

 

Unless otherwise indicated herein in the box entitled “Special Issuance Instructions” below, please credit the account indicated above maintained at the Book-Entry Transfer Facility.

 

THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED “DESCRIPTION OF INITIAL NOTES” ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE INITIAL NOTES AS SET FORTH IN SUCH BOX ABOVE.

 

PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.

 

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PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)

 

 

SIGNATURE(S) OF OWNER

 

 

 

DATE

 

 

 

 

 

Area Code and Telephone Number

 

 

 

If a Holder is tendering an Initial Note, this Letter must be signed by the registered Holder(s) as the name(s) appear(s) on the certificate(s) for the Initial Note or by any person(s) authorized to become registered Holder(s) by endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, officer or other person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 2.

 

Name(s):

 

 

(PLEASE TYPE OR PRINT)

 

Capacity:

 

 

 

 

 

 

 

 

Address:

 

 

 

SIGNATURE GUARANTEE (IF REQUIRED BY INSTRUCTION 2) SIGNATURE(S) GUARANTEED BY AN ELIGIBLE INSTITUTION:

 

 

(AUTHORIZED SIGNATURE)

 

(TITLE)

 

(NAME AND FIRM)

DATED:

 

2011

(PLEASE COMPLETE ACCOMPANYING FORM W-9.)

 

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SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 2, 3 and 4)

 

To be completed ONLY if Initial Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at the Book-Entry Transfer Facility other than the account indicated above.

 

Issue: New Notes and/or Initial Notes to:

 

 

(Please Type or Print)

 

Names(s) and Taxpayer Identification or Social Security Number(s):

 

 

 

 

(Please Type or Print)

 

Address:

 

 

 

 

 

 

 

(Zip Code)

(Complete Form W-9)

 

o             Credit unexchanged Initial Notes delivered by book-entry transfer to the Book-Entry Transfer Facility account set forth below:

 

 

(Book-Entry Transfer Facility Account Number, if Applicable)

 

IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS LETTER OR A FACSIMILE HEREOF (TOGETHER WITH A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.

 

INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER TO EXCHANGE (I) ANY AND ALL OUTSTANDING 3.625% NOTES DUE 2016 ISSUED ON AUGUST 22, 2011 OF KINROSS GOLD CORPORATION FOR 3.625% NOTES DUE 2016 OF KINROSS GOLD CORPORATION THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,  (II) ANY AND ALL OUTSTANDING 5.125% NOTES DUE 2021 ISSUED ON AUGUST 22, 2011 OF KINROSS GOLD CORPORATION FOR 5.125% NOTES DUE 2021 OF KINROSS GOLD CORPORATION THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (III) ANY AND ALL OUTSTANDING 6.875% NOTES DUE 2041 ISSUED ON AUGUST 22, 2011 OF KINROSS GOLD CORPORATION FOR 6.875% NOTES DUE 2041 OF KINROSS GOLD CORPORATION THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND (V) ANY AND ALL OUTSTANDING UNCONDITIONAL GUARANTEES BY GUARANTORS OF THE 3.625% NOTES DUE 2016, 5.125% NOTES DUE 2021 AND 6.875% NOTES DUE 2041 ISSUED ON AUGUST 22, 2011 BY KINROSS GOLD CORPORATION FOR UNCONDITIONAL GUARANTEES BY THE GUARANTORS OF THE REGISTERED 3.625% NOTES DUE 2016, 5.125% NOTES DUE 2021 AND 6.875% NOTES DUE 2041 ISSUED BY KINROSS GOLD CORPORATION, WHICH GUARANTEES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

 

1.               Delivery of this Letter and notes; guaranteed delivery procedures. This Letter is to be completed by Holders of Initial Notes if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in the “Exchange Offer — Terms of the Exchange Offer — Book-Entry Transfer” section of the Prospectus. Book-Entry Confirmation, as well as a properly completed and duly executed Letter (or manually

 

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signed facsimile hereof) and any other documents required by this Letter, must be received by the Exchange Agent at the address set forth herein on or prior to the Expiration Date, or the tendering Holder must comply with the guaranteed delivery procedures set forth below. Initial Notes tendered hereby must be in denominations of principal amount of $2,000 and any integral multiple of $1,000 in excess thereof.

 

Holders who cannot complete the procedure for book-entry transfer on a timely basis may tender their Initial Notes pursuant to the guaranteed delivery procedures set forth in the “Exchange Offer — Terms of the Exchange Offer — Guaranteed Delivery Procedures” section of the Prospectus. Pursuant to such procedures, (i) such tender must be made through an Eligible Institution (as defined herein), (ii) prior to 5:00 p.m., New York City time, on the Expiration Date, the Exchange Agent must receive from such Eligible Institution a properly completed and duly executed Letter (or a facsimile thereof) and Notice of Guaranteed Delivery, substantially in the form provided by the Issuers (by facsimile transmission, mail or hand delivery), setting forth the name and address of the Holder of Initial Notes and the amount of Initial Notes tendered, stating that the tender is being made thereby and guaranteeing that within three New York Stock Exchange (“ NYSE ”) trading days after the date of execution of the Notice of Guaranteed Delivery a Book-Entry Confirmation and any other documents required by this Letter will be deposited by the Eligible Institution with the Exchange Agent, and (iii) a Book-Entry Confirmation and all other documents required by this Letter, are received by the Exchange Agent within three NYSE trading days after the date of execution of the Notice of Guaranteed Delivery.

 

The method of delivery of this Letter and all or any other required documents is at the election and risk of the tendering Holders, but the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If this Letter and all other required documents are sent by mail, it is suggested that the mailing be registered mail, properly insured, with return receipt requested, made sufficiently in advance of the Expiration Date to permit delivery to the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. See the “Exchange Offer — Terms of the Exchange Offer” section of the Prospectus.

 

2.               Signatures on this Letter; bond powers; guarantee of signatures.  If this Letter is signed by a participant in the Book-Entry Facility, the signature must correspond exactly with the name as it appears on the security position listing of the Holders of the Initial Notes.

 

If any tendered Initial Notes are owned of record by two or more joint owners, all of such owners must sign this Letter.

 

If this Letter is signed by registered Holder(s) of the Initial Notes specified herein and tendered thereby, no separate bond powers are required unless the New Notes are to be issued, or untendered Initial Notes are to be reissued, to a person other than the registered Holder. Signatures on such bond power(s) must be guaranteed by an Eligible Institution.

 

If this Letter or any bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the applicable Issuers, proper evidence satisfactory to such Issuer of their authority to so act must be submitted.

 

SIGNATURES ON BOND POWERS REQUIRED BY THIS INSTRUCTION 2 MUST BE GUARANTEED BY A FIRM WHICH IS A BANK, BROKER, DEALER, CREDIT UNION, SAVINGS ASSOCIATION OR OTHER ENTITY WHICH IS A MEMBER IN GOOD STANDING OF A RECOGNIZED MEDALLION PROGRAM APPROVED BY THE SECURITIES TRANSFER ASSOCIATION INC., INCLUDING THE SECURITIES TRANSFER AGENTS MEDALLION PROGRAM (“STAMP”), THE STOCK EXCHANGE MEDALLION PROGRAM (“SEMP”) AND THE NEW YORK STOCK EXCHANGE MEDALLION SIGNATURE PROGRAM (“MSP”), OR ANY OTHER “ELIGIBLE GUARANTOR INSTITUTION” (AS DEFINED IN RULE 17AD-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED) (EACH OF THE FOREGOING, AN “ELIGIBLE INSTITUTION”)

 

SIGNATURES ON THIS LETTER NEED NOT BE GUARANTEED BY AN ELIGIBLE INSTITUTION, PROVIDED THE INITIAL NOTES ARE TENDERED: (I) BY A REGISTERED HOLDER OF INITIAL NOTES (WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER, INCLUDES ANY PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY SYSTEM WHOSE NAME APPEARS ON

 

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A SECURITY POSITION LISTING AS THE HOLDER OF SUCH INITIAL NOTES) WHO HAS NOT COMPLETED THE BOX ENTITLED “SPECIAL ISSUANCE INSTRUCTIONS” IN THIS LETTER, OR (II) FOR THE ACCOUNT OF AN ELIGIBLE INSTITUTION.

 

3.               Special issuance instructions. Holders tendering Initial Notes by book-entry transfer may request that Initial Notes not exchanged be credited to such account maintained at the Book-Entry Transfer Facility as such Holder may designate herein.

 

4.               Taxpayer identification number; backup withholding; Substitute Form W-9. U.S. federal income tax law generally requires a tendering Holder whose Initial Notes are accepted for exchange to provide the Issuer (as payor), or the Paying Agent designated by the Issuer to act on its behalf, with such Holder’s correct Taxpayer Identification Number (“TIN”) on the Substitute Form W-9 attached hereto, which in the case of a tendering Holder who is an individual, is his or her Social Security number. If the Issuer is not provided with the correct TIN or an adequate basis for an exemption from backup withholding, such tendering Holder may be subject to a $50 penalty imposed by the Internal Revenue Service (the “IRS”). In addition, delivery to such tendering Holder of New Notes may result in backup withholding, currently at the rate of 28%, on all reportable payments made after the exchange. If withholding results in an overpayment of taxes, the Holder may obtain a refund from the IRS, provided that the Holder furnishes required information to the IRS on a timely basis.

 

To prevent backup withholding, each tendering Holder of Initial Notes that is a U.S. person (including a U.S. resident alien) must provide its correct TIN by completing the Substitute Form W-9 attached hereto, certifying, under penalties of perjury, that (1) the TIN provided is correct (or that such Holder is awaiting a TIN), (2) the Holder is not subject to backup withholding because (a) the Holder is exempt from backup withholding, or (b) the Holder has not been notified by the IRS that such Holder is subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified the Holder that such Holder is no longer subject to backup withholding, and (3) such Holder is a U.S. citizen or other U.S. person. If the tendering Holder of Initial Notes is not a U.S. person, such Holder must give the Exchange Agent a completed Form W-8 BEN or other appropriate IRS Form W-8. See the enclosed “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” for additional instructions.

 

Exempt Holders of Initial Notes (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements but must complete the Substitute Form W-9 or the appropriate IRS Form W-8, as applicable. See the enclosed “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” for additional instructions.

 

If such Holder does not have a TIN, such Holder should consult the enclosed “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” for instructions on applying for a TIN, and write “applied for” in the space for the TIN. Note: Writing “applied for” on the Substitute Form W-9 means that such Holder has already applied for a TIN or that such Holder intends to apply for one in the near future. If a Holder writes “applied for” in the space for the TIN, the Exchange Agent will retain 28% of reportable payments made to a Holder during the sixty (60) day period following the date of the Substitute Form W-9. If the Holder furnishes the Exchange Agent with his or her TIN within sixty (60) days of the date of the Substitute Form W-9, the Exchange Agent will remit such amounts retained during such sixty (60) day period to such Holder and no further amounts will be retained or withheld from payments made to the Holder thereafter. If, however, such Holder does not provide its TIN to the Exchange Agent within such sixty (60) day period, the Exchange Agent will remit such previously withheld amounts to the IRS as backup withholding and will withhold 28% of all reportable payments to the Holder thereafter until such Holder furnishes its TIN to the Exchange Agent. If the Initial Notes are in more than one name or are not in the name of the actual owner, such Holder should consult the enclosed “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” for information on which TIN to report.

 

FAILURE TO COMPLETE THE SUBSTITUTE FORM W-9, IRS FORM W-8BEN OR ANOTHER APPROPRIATE FORM MAY RESULT IN BACKUP WITHHOLDING OF 28% ON ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER.

 

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5.               Transfer taxes. The Issuers will pay all transfer taxes, if any, applicable to the transfer of Initial Notes to it or its order pursuant to the Exchange Offer. If, however, New Notes and/or substitute Initial Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered Holder of the Initial Notes tendered hereby, or if tendered Initial Notes are registered in the name of any person other than the person signing this Letter, or if a transfer tax is imposed for any reason other than the transfer of Initial Notes to the Issuers or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered Holder or any other persons) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering Holder.

 

Except as provided in this instruction 4, it will not be necessary for transfer tax stamps to be affixed to the Initial Notes specified in this Letter.

 

6.               Waiver of conditions. The Issuers reserves the absolute right to waive satisfaction of any or all conditions enumerated in the Prospectus.

 

7.               No conditional tenders. No alternative, conditional, irregular or contingent tenders will be accepted. All tendering Holders of Initial Notes, by execution of this Letter, shall waive any right to receive notice of the acceptance of their Initial Notes for exchange.

 

None of the Issuers, the Exchange Agent nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Initial Notes nor shall any of them incur any liability for failure to give any such notice.

 

8.               Withdrawal rights. Tenders of Initial Notes of a series may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date.

 

For a withdrawal of a tender of Initial Notes to be effective, a written notice of withdrawal must be received by the Exchange Agent at the address set forth above prior to 5:00 p.m., New York City time, on the Expiration Date. Any such notice of withdrawal must (i) specify the name of the person having tendered the Initial Notes to be withdrawn (the “ Depositor ”), (ii) identify the Initial Notes to be withdrawn (including the principal amount of such Initial Notes), (iii)specify the number of the account at the Book-Entry Transfer Facility from which the Initial Notes were tendered and specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Initial Notes and otherwise comply with the procedures of such facility, (iv) contain a statement that such Holder is withdrawing its election to have such Initial Notes exchanged, (v) be signed by the Holder in the same manner as the original signature on the Letter by which such Initial Notes were tendered (including any required signature guarantees) or be accompanied by documents of transfer to have the Trustee with respect to the Initial Notes register the transfer of such Initial Notes in the name of the person withdrawing the tender and (vi) specify the name in which such Initial Notes are registered, if different from that of the Depositor. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the applicable Issuers, whose determination shall be final and binding on all parties. Any Initial Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer and no New Notes will be issued with respect thereto unless the Initial Notes so withdrawn are validly retendered. Any Initial Notes that have been tendered for exchange but which are not exchanged for any reason (including the termination or withdrawal of the Exchange Offer) will be returned to the tendering Holder thereof without cost to such Holder by being credited to an account maintained with the Book-Entry Transfer Facility for the Initial Notes promptly after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Initial Notes may be retendered by following the procedures described above at any time on or prior to 5:00 p.m., New York City time, on the Expiration Date.

 

9.               Requests for assistance or additional copies. Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter, and requests for Notices of Guaranteed Delivery and other related documents may be directed to the Exchange Agent, at the address and telephone number indicated above.

 

IMPORTANT: THIS LETTER OF TRANSMITTAL, (OR A FACSIMILE THEREOF, IF APPLICABLE, ) OR AN AGENT’S MESSAGE TO THE BOOK-ENTRY TRANSFER FACILITY

 

11



 

TOGETHER WITH CONFIRMATION OF BOOK-ENTRY AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M. NEW YORK CITY TIME, ON THE EXPIRATION DATE.

 

12


 

SUBSTITUTE

 

Form W-9

 

Department of the Treasury Internal Revenue Service

 

Payer’s Request for Taxpayer Identification Number (“TIN”) and Certification

 

Name (as shown on your income tax return)

 

 

Business Name, if different from above

 

 

Check appropriate box:

o Individual/Sole proprietor o C Corporation o S Corporation o Partnership o Trust/estate

o  Limited Liability Company. Enter the tax classification (C =C corporation, S=S corporation, P = partnership).

 

o Other

 

 

 

 

 

Address

 

 

City, state, and ZIP code

 

 

 

 

Part 1 — Taxpayer Identification Number — Please provide your TIN in the box at right and certify by signing and dating below. If awaiting TIN, write “Applied For.”

 

 

Social Security Number

 

OR

 

 

Employer Identification Number

 

 

PART 2 — For Payees Exempt from Backup Withholding — Check the box if you are NOT subject to backup withholding o

 

PART 3 — Certification — Under penalties of perjury, I certify that:

(1)               The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and

(2)               I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and

(3)               I am a U.S. citizen or a U.S. person (defined below).

 

Certification Instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. However, if after being notified by the IRS stating that you were subject to backup withholding you received another notification from the IRS stating you are no longer subject to backup withholding, do not cross out item 2.

 

 

The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to avoid backup withholding.

 

SIGNATURE

 

 

DATE

 

 

13



 

NOTE: FAILURE TO COMPLETE THIS SUBSTITUTE FORM W-9, IRS FORM W-8BEN OR ANOTHER APPROPRIATE FORM MAY RESULT IN BACKUP WITHHOLDING OF 28% ON ANY PAYMENTS MADE TO YOU PURSUANT TO THE NEW NOTES.  IN ADDITION, FAILURE TO PROVIDE SUCH INFORMATION MAY RESULT IN A PENALTY IMPOSED BY THE INTERNAL REVENUE SERVICE.  PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF YOUR TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.

 

YOU MUST COMPLETE THE FOLLOWING CERTIFICATION IF YOU WROTE “APPLIED FOR” IN THE APPROPRIATE LINE IN PART 1 OF THE SUBSTITUTE FORM W-9.

 

CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER

 

I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of payment, 28% of all reportable payments made to me will be withheld.

 

Signature

 

 

Date

 

, 2011

 



 

GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION

NUMBER ON SUBSTITUTE FORM W-9

 

Guidelines For Determining the Proper Identification Number to Give the Payer — Social Security Numbers (“ SSNs ”) have nine digits separated by two hyphens:  i.e. , 000-00-0000.  Employer Identification Numbers (“ EINs ”) have nine digits separated by only one hyphen: i.e. , 00-0000000.  The table below will help determine the number to give the payer. All “section” references are to the Internal Revenue Code of 1986, as amended.

 

For this type of account:

 

GIVE THE NAME
AND SOCIAL
SECURITY
NUMBER or
EMPLOYER
IDENTIFICATION

NUMBER of —

 

For this type of account:

 

GIVE THE NAME
AND EMPLOYER
IDENTIFICATION
NUMBER of —

 

 

 

 

 

 

 

1.   Individual

 

The individual

 

7.   A valid trust, estate, or pension trust

 

Legal entity (4)

 

 

 

 

 

 

 

2.   Two or more individuals (joint account)

 

The actual owner of the account or, if combined funds, the first individual on the account (1)

 

8.   Corporation or LLC electing corporate status on Form 8832

 

The corporation

 

 

 

 

 

 

 

3.   Custodian account of a minor (Uniform Gift to Minors Act)

 

The minor (2)

 

9.   Association, club, religious, charitable, educational or other tax-exempt organization

 

The organization

 

 

 

 

 

 

 

4.   a. The usual revocable savings trust (grantor is also trustee) b. So-called trust account that is not a legal or valid trust under state law

 

The grantor-trustee (1)

 

The actual owner (1)

 

10. Partnership or multi-member LLC

 

11. A broker or registered nominee

 

The partnership or LLC

 

The broker or nominee

 

 

 

 

 

 

 

5.   Sole proprietorship or single-owner LLC

 

The owner (3)

 

12. Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments

 

The public entity

6.   Disregarded entity not owned by an individual

 

The owner

 

 

 

 

 


(1)                    List first and circle the name of the person whose SSN you furnish.  If only one person on a joint account has an SSN, that person’s number must be furnished.

 

(2)                    Circle the minor’s name and furnish the minor’s SSN.

 

15



 

GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION

NUMBER ON SUBSTITUTE FORM W-9

Page 2

 

(3)                    You must show your individual name and you may also enter your business or “doing business as” name.  You may use either your SSN or EIN (if you have one).  If you are a sole proprietor, the IRS encourages you to use your SSN.

 

(4)                    List first and circle the name of the legal trust, estate or pension trust (do not furnish the Taxpayer Identification Number of the personal representative or trustee unless the legal entity itself is not designated in the account title).

 

NOTE:                        If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.

 

Purpose of Form

 

A person who is required to file an information return with the IRS must get your correct TIN to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an individual retirement account.  Use Substitute Form W-9 only if you are a U.S. person (including a resident alien), to give your correct TIN to the requester (the person requesting your TIN) and, when applicable, (1) to certify the TIN you are giving is correct (or you are waiting for a number to be issued), (2) to certify you are not subject to backup withholding, or (3) to claim exemption from backup withholding if you are a exempt payee.  The TIN provided must match the name given on the Substitute Form W-9.  For federal tax purposes, you are considered a U.S. person if you are: (1) an individual who is a U.S. citizen or U.S. resident alien, (2) a partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, (3) an estate (other than a foreign estate), or (4) a domestic trust (as defined in Treasury Regulations section 301.7701-7).

 

How to Get a TIN

 

If you do not have a TIN, apply for one immediately.  To apply for an SSN, obtain Form SS-5, Application for a Social Security Card, at the local office of the Social Security Administration or get this form on-line at www.ssa.gov/online/ss-5.pdf .  You may also get this form by calling 1-800-772-1213.  You can apply for an EIN online by accessing the IRS website at www.irs.gov/businesses and clicking on Employer ID Numbers under Related Topics.  Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN.  You can get Forms W-7 and SS-4 from the IRS by calling 1-800-TAX-FORM (1-800-829-3676) or from the IRS web site at www.irs.gov.

 

If you do not have a TIN, write “Applied For”  in Part 1, sign and date the form, and give it to the payer.  For interest and dividend payments and certain payments made with respect to readily tradable instruments, you will generally have 60 days to get a TIN and give it to the payer.  If the payer does not receive your TIN within 60 days, backup withholding, if applicable, will begin and continue until you furnish your TIN.

 

Note: Writing “Applied For” on the form means that you have already applied for a TIN OR that you intend to apply for one soon.  As soon as you receive your TIN, complete another Form W-9, include your TIN, sign and date the form, and give it to the payer. CAUTION: Disregarded entity . Enter the owner’s name on the “Name” line. The name of the entity entered on the “Name” line should never be a disregarded entity. The name on the “Name” line must be the name shown on the income tax return on which the income will be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a domestic owner, the domestic owner’s name is required to be provided on the “Name” line. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on the “Business name” line. If the owner of the disregarded entity is a foreign person, you must complete an appropriate Form W-8.

 

Payees Exempt from Backup Withholding

 

Individuals (including sole proprietors) are NOT exempt from backup withholding.  Corporations are exempt from backup withholding for certain payments, such as interest and dividends.

 

Note: If you are exempt from backup withholding, you should still complete Substitute Form W-9 to avoid possible erroneous backup withholding.  If you are exempt, enter your correct TIN in Part 1, check the “Exempt” box in Part 2, and sign and date the form.  If you are a nonresident alien or a foreign entity not subject to backup withholding, give the requester the appropriate completed Form W-8, Certificate of Foreign Status.

 

16



 

GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION

NUMBER ON SUBSTITUTE FORM W-9

Page 3

 

The following is a list of payees that may be exempt from backup withholding and for which no information reporting is required.  For interest and dividends, all listed payees are exempt except for those listed in item (9).  For broker transactions, payees listed in (1) through (5) and (7) through (13), C corporations and any person registered under the Investment Advisers Act of 1940 who regularly acts as a broker are exempt.  Payments subject to reporting under sections 6041 and 6041A are generally exempt from backup withholding only if made to payees described in items (1) through (7).  However, the following payments made to a corporation (including gross proceeds paid to an attorney under section 6045(f), even if the attorney is a corporation) and reportable on Form 1099-MISC are not exempt from backup withholding: (i) medical and health care payments, (ii) attorneys’ fees, and (iii) payments for services paid by a federal executive agency.  Only payees described in items (1) through (5) are exempt from backup withholding for barter exchange transactions and patronage dividends.

 

(1)          An organization exempt from tax under section 501(a), or an individual retirement plan (“ IRA ”), or a custodial account under section 403(b)(7), if the account satisfies the requirements of section 401(f)(2).

 

(2)          The United States or any of its agencies or instrumentalities.

 

(3)          A state, the District of Columbia, a possession of the United States, or any of their subdivisions or instrumentalities.

 

(4)          A foreign government, a political subdivision of a foreign government, or any of their agencies or instrumentalities.

 

(5)          An international organization or any of its agencies or instrumentalities.

 

(6)          A corporation.

 

(7)          A foreign central bank of issue.

 

(8)          A dealer in securities or commodities registered in the United States, the District of Columbia, or a possession of the United States.

 

(9)          A futures commission merchant registered with the Commodity Futures Trading Commission.

 

(10)   A real estate investment trust.

 

(11)   An entity registered at all times during the tax year under the Investment Company Act of 1940.

 

(12)   A common trust fund operated by a bank under section 584(a).

 

(13)   A financial institution.

 

(14)   A middleman known in the investment community as a nominee or custodian.

 

(15)   An exempt charitable remainder trust, or a non-exempt trust described in section 4947.

 

Exempt payees described above should file Form W-9 to avoid possible erroneous backup withholding.  FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, CHECK THE “EXEMPT” BOX IN PART 2 ON THE FACE OF THE FORM IN THE SPACE PROVIDED, SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.

 

Certain payments that are not subject to information reporting are also not subject to backup withholding. For details, see sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N, and their regulations.

 

Privacy Act Notice. Section 6109 requires you to give your correct TIN to persons who must file information returns with the IRS to report interest, dividends, and certain other income paid to you, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA or Archer MSA or HSA. The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return. The IRS may also provide this information to the Department of Justice for civil and criminal litigation and to cities, states, and the District of Columbia to carry out their tax laws. The IRS may also disclose this

 

17



 

information to other countries under a tax treaty, or to federal and state agencies to enforce federal nontax criminal laws and to combat terrorism.

 

GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION

NUMBER ON SUBSTITUTE FORM W-9

Page 4

 

You must provide your TIN whether or not you are required to file a tax return. Payers must generally withhold 28% of taxable interest, dividends, and certain other payments to a payee who does not give a TIN to a payer. The penalties described below may also apply.

 

Penalties

 

Failure to Furnish TIN. If you fail to furnish your correct TIN to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.

 

Civil Penalty for False Information With Respect to Withholding. If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500.

 

Criminal Penalty for Falsifying Information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.

 

Misuse of TINs. If the payer discloses or uses TINs in violation of federal law, the payer may be subject to civil and criminal penalties.

 

FOR ADDITIONAL INFORMATION, CONTACT YOUR TAX ADVISOR OR THE INTERNAL REVENUE SERVICE.

 

18




Exhibit 99.2

 

NOTICE OF GUARANTEED DELIVERY FOR

 

KINROSS GOLD CORPORATION

 

OFFER TO EXCHANGE ALL OUTSTANDING
3.625% SENIOR NOTES DUE 2016
ISSUED ON AUGUST 22, 2011 FOR
3.625% SENIOR NOTES DUE 2016

 

AND

 

5.125% SENIOR NOTES DUE 2021
ISSUED ON AUGUST 22, 2011 FOR
5.125% SENIOR NOTES DUE 2021

 

AND

 

6.875% SENIOR NOTES DUE 2041
ISSUED ON AUGUST 22, 2011 FOR
6.875% SENIOR NOTES DUE 2041

 

UNCONDITIONALLY GUARANTEED BY AURELIAN RESOURCES INC., RED BACK MINING MAURITANIA NO.2 LTD., RED BACK MINING INC., BGO (BERMUDA) LTD., KINROSS BRASIL MINERACAO S.A., KINROSS GOLD U.S.A, Inc., CROWN RESOURCES CORPORATION, FAIRBANKS GOLD MINING, INC., MELBA CREEK MINING, INC., COMPANIA MINERA MANTOS DE ORO, COMPANIA MINERA MARICUNGA, ROUND MOUNTAIN GOLD CORPORATION

 

WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933

 

This form or one substantially equivalent hereto must be used to accept the Exchange Offer of Kinross Gold Corporation (the “ Issuer ”) made pursuant to the Prospectus, dated                     , 2012 (the “ Prospectus ”), if the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach Wells Fargo Bank, National Association, as exchange agent (the “ Exchange Agent ”) prior to 5:00 p.m., New York City time, on the Expiration Date of the Exchange Offer.

 

Such form may be delivered or transmitted by facsimile transmission, mail or hand delivery to the Exchange Agent as set forth below. In addition, in order to utilize the guaranteed delivery procedure to tender Initial Notes pursuant to the Exchange Offer, a completed, signed and dated Letter of Transmittal (or facsimile thereof) relating to the tender for exchange of Initial Notes (the “ Letter of Transmittal ”) must also be received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date. Any Initial Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date. Where the Expiration Date has been extended, tenders pursuant to the Exchange Offer as of the previously scheduled Expiration Date may not be withdrawn after the date of the previously scheduled Expiration Date. Capitalized terms not defined herein are defined in the Prospectus or the Letter of Transmittal.

 

By Registered or Certified Mail:

 

WELLS FARGO BANK, N.A.

Corporate Trust Operations

MAC N9303-121

PO Box 1517

Minneapolis, MN 55480

By Regular Mail or Overnight Courier:

 

WELLS FARGO BANK, N.A.

Corporate Trust Operations

MAC N9303-121

PO Box 1517

Minneapolis, MN 55480

In Person by Hand Only:

 

WELLS FARGO BANK, N.A.

12 th Floor — Northstar East Building

Corporate Trust Operations

608 Second Avenue South

Minneapolis, MN 55479

By Facsimile:

 

(For Eligible Institutions only):

fax. (612) 667-6282

Attn. Bondholder Communications

 

For Information or Confirmation by Telephone:

(800) 344-5128, Option 0

Attn. Bondholder Communication

 

Delivery of this instrument to an address other than as set forth above, or transmission or instructions via facsimile other than as set forth above, will not constitute a valid delivery.

 

This form is not to be used to guarantee signatures.  If a signature on a Letter of Transmittal is required to be guaranteed by an Eligible Institution (as defined in the letter of transmittal) under the instructions thereto, such signature guarantee must appear in the applicable space provided in the signature box on the Letter of Transmittal.

 

PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY

 



 

Ladies and Gentlemen:

 

Upon the terms and conditions set forth in the Prospectus and the accompanying Letter of Transmittal, the undersigned hereby tenders to the Issuer the principal amount of Initial Notes set forth below pursuant to the guaranteed delivery procedure described in “Exchange Offer —Terms of the Exchange Offer — Guaranteed Delivery Procedures” section of the Prospectus.

 

The undersigned understands that tenders of Initial Notes will be accepted only in principal amount equal to $2,000 or integral multiples of $1,000 in excess thereof.  Additionally, the undersigned understands that the tenders of Initial Notes pursuant to the Exchange Offer may not be withdrawn after 5:00 p.m., New York City time on the Expiration Date.

 

All authority herein conferred or agreed to be conferred by this Notice of Guaranteed Delivery shall survive the death or incapacity of the undersigned and every obligation of the undersigned under this Notice of Guaranteed Delivery shall be binding upon the heirs, personal representatives, executors, administrators, successors, assigns, trustees in bankruptcy and other legal representatives of the undersigned.

 

PLEASE SIGN AND COMPLETE

 

Principal Amount of Initial Notes Tendered (must be in

Name(s) of Registered

 

denominations of principal amount of $2,000 and any integral

Holder(s):

 

multiple of $1,000):*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Address including zip code:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

If Initial Notes will be delivered by book entry transfer at The

Telephone Number including Area

Depository Trust Company, insert Account

 

Code:

 

No.:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Signature(s) of Registered Owner(s) or Authorized Signatory:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 



 

This Notice of Guaranteed Delivery must be signed by the Holder(s) of Initial Notes exactly as its (their) name(s) appear on certificates for Initial Notes or a security position listing as the owner of Initial Notes, or by person(s) authorized to become registered Holder(s) by endorsements and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must provide the following information.

 

Please print name(s) and address(es):

 

Name(s):

 

 

 

 

 

 

 

Capacity:

 

 

 

Address(es):

 

 

 

 

 

 

 

 

 

 

Do not send Initial Notes with this form. Initial Notes should be sent to the Exchange Agent together with a properly completed and duly executed Letter of Transmittal.

 

GUARANTEE

 

(Not to be used for signature guarantee)

 

The undersigned, a member firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, Inc., a commercial bank or trust company having an office or correspondent in the United States or an “Eligible Guarantor Institution” within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended, hereby guarantees that the certificates representing the principal amount of Initial Notes tendered hereby in proper form for transfer, or timely confirmation of the book-entry transfer of such Initial Notes into the Exchange Agent’s account at DTC pursuant to the procedures set forth in “Exchange Offer - Terms of the Exchange Offer - Guaranteed Delivery Procedures” section of the Prospectus, together with any required signature guarantee and any other documents required by the Letter of Transmittal, will be received by the Exchange Agent at the address set forth above, no later than three New York Stock Exchange trading days after the date of execution of this Notice of Guaranteed Delivery.

 

Name of Firm

 

 

 

 

 

 

Address

 

 

 

 

 

 

Zip Code

 

 

Area Code and Tel. No.

 

 

Authorized Signature

 

 

 

 

Title

 

 

Name: (Please Type or Print)

 

 

Dated:

 

 



 

INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY

 

1.                                       Delivery of this Notice of Guaranteed Delivery.  A properly completed and duly executed copy of this Notice of Guaranteed Delivery and any other documents required by this Notice of Guaranteed Delivery must be received by the Exchange Agent at its address set forth herein prior to 5:00 p.m., New York City time, on the Expiration Date. The method of delivery of this Notice of Guaranteed Delivery and any other required documents to the Exchange Agent is at the election and risk of the Holder and the delivery will be deemed made only when actually received by the Exchange Agent. If delivery is by mail, registered or certified mail properly insured, with return receipt requested, is recommended. In all cases sufficient time should be allowed to assure timely delivery. For a description of the guaranteed delivery procedure, see Instruction 1 of the Letter of Transmittal.

 

2.                                       Signatures of this Notice of Guaranteed Delivery.   If this Notice of Guaranteed Delivery is signed by a participant of the Book-Entry Transfer Facility whose name appears on a security position listing as the owner of Initial Notes, the signature must correspond with the name shown on the security position listing as the owner of the Initial Notes.
                If this Notice of Guaranteed Delivery is signed by a person other than the registered Holder(s) of any Initial Notes listed or a participant of the Book-Entry Transfer Facility, this Notice of Guaranteed Delivery must be accompanied by appropriate bond powers, signed as the name of the participant shown on the Book-Entry Transfer Facility’s security position listing.
                If this Notice of Guaranteed Delivery is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or other person acting in a fiduciary or representative capacity, such person should so indicate when signing.

 

3.                                       Requests for assistance or additional copies.  Questions and requests for assistance and requests for additional copies of the Prospectus may be directed to the Exchange Agent at the address specified on the first page hereof. Holders may also contact their broker, dealer, commercial bank, trust company, or other nominee for assistance concerning the Exchange Offer.