SECRETARY OF STATE FILED
State of Wyoming SEP 12 95 3 0 3 2 9 8
The Capitol WYOMING
Cheyenne, WY 82002-0020 SECRETARY OF STATE
ARTICLES OF INCORPORATION
I. Corporate Name: DIVERSIFIED TECHNOLOGIES. INC.
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II. Number and class of shares which the corporation is authorized to issue
that together have unlimited voting rights:
70,000,000
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Number and class of shares which are entitled to receive the net assets
of the corporation upon dissolution: (This class of shares may also be
the class of shares that together have unlimited voting rights.)
70,000,000
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III. The registered agent and street address of its registered office are:
REGISTERED AGENCY SERVICES, INC.
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1912 CAPITOL AVENUE
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CHEYENNE, WY 82001
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(The registered agent may be an individual who resides in this state, a
domestic corporation or a not-for-profit domestic corporation, or a
foreign corporation or not-for-profit foreign corporation authorized to
transact business in this state whose business office is identical with
the registered office.)
IV. The name and address of the incorporator is:
J.R. NELSON
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6521 W. CALHOUN PL
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LITTLETON, CO 80123
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<PAGE>
Signed /s/ J. R. Nelson
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Dated 6/11/95
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For name availability purposes, list the type of business the corporation will
be conducting:
Waste Management/Public utilities/treatment of waste/waste water grease and
related materials that need treatment prior to being put back into environment.
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INSTRUCTIONS:
Filing Fee: $90.00
(1) The Articles of Incorporation shall be accompanied by a written
consent to appointment executed by the registered agent.
(2) Articles of Incorporation shall be accompanied by one (1) exact or
conformed copy.
<PAGE>
Secretary of State
State of Wyoming
The Capitol
Cheyenne, Wy 82002
CONSENT TO
APPOINTMENT BY REGISTERED AGENT
1. Registered Agency Services, Inc. voluntarily consents to serve as the
registered agent for DIVERSIFIED TECHNOLOGIES, INC., a Wyoming corporation,
on the date shown below;
2. The registered agent certifies that it is:
(a) An individual who resides in this state and whose business office is
identical with the registered office;
or
(b) A domestic corporation or not-for-profit foreign corporation
authorized to transact business in this state whose business office is
identical with the registered office.
3. The undersigned knows and understands the duties of a registered agent as
set forth in the 1989 Wyoming Business Corporation Act.
Dated: September 12, 1995.
REGISTERED AGENCY SERVICES, INC.
BY: /s/ Jo Lyn Jordan
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JO LYN JORDAN, VICE-PRESIDENT
[Stamped Certification of
STATE OF WYOMING,
Secretary of State
appears on original document.]
<PAGE>
95-303298-D CERTIFICATE OF AMENDMENT FILED
to JUN 10 98 3 3 4 9 5 3
ARTICLES OF INCORPORATION WYOMING
of SECRETARY OF STATE
DIVERSIFIED TECHNOLOGIES, INC.
(A Wyoming Corporation)
DIVERSIFIED TECHNOLOGIES, INC., a corporation organized on September
12, 1995, and existing under and by virtue of the Wyoming Business Corporation
Act, DOES HEREBY CERTIFY THAT:
A. The name of this corporation is DIVERSIFIED TECHNOLOGIES, INC.
B. The Board of Directors of this corporation, by the unanimous written
consent of its members, filed with the minutes of the Board, duly adopted
resolutions setting forth a proposed amendment of the Articles of Incorporation
of the corporation, declaring such amendment to be advisable and directing that
the proposal be placed before the shareholders of the corporation for
consideration thereof. The text of the amendment, consisting of Articles FIRST
through ELEVENTH within quotation marks, is as follows.
RESOLVED, that the following amendment shall supersede the original
Articles of Incorporation of this corporation and all amendments and supplements
thereto:
FIRST. The name of this Corporation is DIVERSIFIED TECHNOLOGIES, INC.
SECOND. The purpose of the Corporation is to engage in any lawful act
or activity or activities, in Wyoming, the United States of America and
elsewhere in the world, for which corporations may be organized under the
Wyoming Business Corporation Act, and may hold, purchase, mortgage, lease and
convey real and personal property in any of such places. The Corporation shall
have perpetual duration.
[On original document, the following stamp appears over text:
RECEIVED
WYOMING
SECRETARY OF STATE
98 JUN 10 AM11:44]
{CAPITAL STOCK}
THIRD. The aggregate number of shares of capital stock of all classes
which the Corporation shall have authority to issue is SEVENTY MILLION
(70,000,000), FIFTY MILLION (50,000,000) shares without par value shall be of a
class designated "Common Stock" (or "Common Shares"), and TWENTY MILLION
(20,000,000) shares without par value shall be of a class designated "Preferred
Stock" (or "Preferred Shares"). All shares of the Corporation shall be issued
for such consideration or considerations as the Board of Directors may from time
to time determine. The designations, voting powers, preferences, optional or
other special rights and qualifications, limitations, or restrictions of the
above classes of stock shall be as follows:
I. PREFERRED STOCK
(a) Issuance in Series. Shares of Preferred Stock may be issued in one
or more classes or series at such time or times as the Board of Directors may
determine. All shares of any one series shall be of equal rank and identical in
all respects.
(b) Authority of Board for Issuance. Authority is hereby expressly
granted to the Board of Directors to fix from time to time, by resolution or
resolutions providing for the issuance of any class or series of Preferred
Stock,
<PAGE>
the designation of such classes and series and the powers, preferences and
rights of the shares of such classes or series, and the qualifications,
limitations or restrictions thereof, including the following:
1. The distinctive designation and number of shares comprising
such class or series, which number may (except where otherwise provided
by the Board of Directors in creating such class or series) be
increased or decreased (but not below the number of shares then
outstanding) from time to time by action of the Board of Directors;
2. The rate of dividend, if any, on the shares of that class
or series, whether dividends shall be cumulative and, if so, from which
date or dates, the relative rights of priority, if any, of payment of
dividends on shares of that series over shares of any other class or
series;
3. Whether the shares of that class or series shall be
redeemable at the option of the Corporation or at the option of the
holder or other person or upon the occurrence of a designated event
and, if so, the terms and conditions of such redemption, including the
date or dates upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary
under different conditions and different redemption dates;
4. Whether that class or series shall have a sinking fund for
the redemption or purchase of shares of that class or series and, if
so, the terms and amounts payable into such sinking fund;
5. The rights to which the holders of the shares of that class
or series shall be entitled in the event of voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, relative rights of priority; if any, of payment of shares
of that class or series;
6. Whether the shares of that class or series shall be
convertible into or exchangeable for shares of stock of any class or
any other series of Preferred Stock and, if so, the terms and
conditions of such conversion or exchange, including the method of
adjusting the rates of conversion or exchange in the event of a stock
split, stock dividend, combination of shares or similar event;
7. Whether the issuance of any additional shares of such class
or series, or of any shares of any other class or series, shall be
subject to restrictions as to issuance, or as to the powers,
preferences or rights of any such other class or series;
8. Any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such class or series, as the Board of
Directors may deem advisable and as shall not be inconsistent with the
provisions of the Corporation's Charter, as from time to time amended,
and to the full extent now or hereinafter permitted by the laws of
Wyoming.
(c) Dividends. Payment of dividends shall be as follows:
1. The holders of Preferred Stock of each class or series, in
preference to the holders of Common Stock, shall be entitled to
receive, as and when declared by the Board of Directors out of funds
legally available therefor, all dividends, at the rate for such class
or series fixed in accordance with the provisions of this Article THIRD
and no more;
2. Dividends may be paid upon, or declared or set aside for,
any class or series of Preferred Stock in preference to the holders of
any other class or series of Preferred Stock in the manner determined
by the resolutions of the Board of Directors authorizing and creating
such class or series;
3. So long as any shares of Preferred Stock shall be
outstanding, in no event shall any dividend, whether in cash or in
property, be paid or declared nor shall any distribution be made, on
the Common Stock, nor shall any shares of Common Stock be purchased,
redeemed or otherwise acquired for value by the Corporation, unless all
dividends on all cumulative classes and series Preferred Stock with
respect to all past dividend periods, and unless all dividends on all
classes and series of Preferred Stock for the then current
<PAGE>
dividend period shall have been paid or declared, and provided for, and
unless the Corporation shall not be in default with respect to any of
its obligations with respect to any sinking fund for any class or
series of Preferred Stock. The foregoing provisions of this
subparagraph (3) shall not, however, apply to any dividend payable in
Common Stock;
4. No dividend shall be deemed to have accrued on any share of
Preferred Stock of any series with respect to any period prior to the
date of the original issue of such share or the dividend payment date
immediately preceding or following such date of original issue, as may
be provided in the resolutions of the Board of Directors creating such
class or series. Preferred Stock shall not be entitled to participate
in any dividends declared and paid on Common Stock, whether payable in
cash, stock or otherwise. Accruals of dividends shall not pay interest.
(d) Dissolution or Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution of assets or winding-up of the Corporation,
the holders of the shares of each class or series of Preferred Stock then
outstanding shall be entitled to receive out of the net assets of the
Corporation, but only in accordance with the preferences, if any, provided for
such series, before any distribution or payment shall be made to the holders of
Common Stock, the amount per share fixed by the resolution or resolutions of the
Board of Directors to be received by the holder of each such share on such
voluntary or involuntary liquidation, dissolution, distribution of assets or
winding-up, as the case may be. If such payment shall have been made in full to
the holders of all outstanding Preferred Stock of all classes and series, or
duly provided for, the remaining assets of the Corporation shall be available
for distribution among the holders of Common Stock as provided in this Article
THIRD. If upon any such liquidation, dissolution, distribution of assets or
winding-up, the net assets of the Corporation available for distribution among
the holders of any one or more classes or series of Preferred Stock which (i)
are entitled to a preference over the holders of Common Stock upon such
liquidation, dissolution, distribution of assets or winding-up, and (ii) rank
equally in connection therewith, shall be insufficient to make payment for the
preferential amount to which the holders of such shares shall be entitled, then
such assets shall be distributed among the holders of each such series of
Preferred Stock ratably according to the respective amounts to which they would
be entitled in respect of the shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full.
Neither the consolidation nor merger of the Corporation, nor the
exchange, sale, lease or conveyance (whether for cash, securities or other
property) of all, substantially all or any part of its assets, shall be deemed a
liquidation, dissolution, distribution of assets or winding-up of the
Corporation within the meaning of this provision.
(e) Voting Rights. Except to the extent otherwise required by law or
provided in the resolution of the Board of Directors adopted pursuant to
authority granted in this Article THIRD, the shares of Preferred Stock shall
have no voting power with respect to any matter whatsoever. The Board of
Directors may determine whether the shares of any class or series shall have
limited, contingent, full or no voting rights, in addition to the voting rights
provided by law and, if so, the terms of such voting rights. Whenever holders of
Preferred Stock are entitled to vote on a matter, each holder of record of
Preferred Stock shall be entitled to one vote for each share standing in his
name on the books of the Corporation and entitled to vote.
II. COMMON STOCK
(a) Issuance. The Common Stock may be issued from time to time in one
or more classes or series in any manner permitted by law, as determined by the
Board of Directors and stated in the resolution or resolutions providing for
issuance thereof. Each class or series shall be appropriately designated, prior
to issuance of any shares thereof, by some distinguishing letter, number or
title. All shares of each class or series of Common Stock shall be alike in
every particular and shall be of equal rank and have the same power, preferences
and rights, and shall be subject to the same qualifications, limitations and
restrictions, if any.
(b) Voting Powers. The Common Stock may have such voting powers (full,
limited, contingent or no voting powers), such designations, preferences and
relative, participating, optional or other special rights, and be subject to
such qualifications, limitations and restrictions, as the Board of Directors
shall determine by resolution or resolutions. Unless otherwise resolved by the
Board of Directors at the time of issuing Common Shares, (i) each Common Share
shall be of the same class, without any designation, preference or relative,
participating, optional or other special rights, and
<PAGE>
subject to no qualification, limitation or restriction, and (ii) Common Shares
shall have unlimited voting rights, including but not limited to the right to
vote in elections for directors, and each holder of record of Common Shares
entitled to vote shall have one vote for each share of stock standing in his
name on the books of the Corporation and entitled to vote.
(c) Dividends. After the requirements with respect to preferential
dividends, if any, on Preferred Stock, and after the Corporation shall have
complied with all requirements, if any, with respect to the setting aside of
sums in a sinking fund for the purchase or redemption of shares of any class or
series of Preferred Stock, then and not otherwise, the holders of Common Stock
shall receive, to the extent permitted by law, such dividends as may be declared
from time to time by the Board of Directors.
(d) Dissolution or Liquidation. After distribution in full of the
preferential amount, if any, to be distributed to the holders of Preferred
Stock, in the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding-up of the Corporation, the holders of Common
Stock shall be entitled to receive all the remaining assets of the Corporation
of whatever kind available for distribution to shareholders ratably in
proportion to the number of shares of Common Stock respectively held by them.
(e) Convertibility. Common Shares or other shares of any class or
series may be made convertible into or exchangeable for, at the option of the
Corporation or the holder or upon the occurrence of a specified event, shares of
any other class or classes or any other series of the same or any other class or
classes of shares of the Corporation, at such price or prices or at such rate or
rates of exchange and with such adjustments as shall be set forth in the
resolution or resolutions providing for the issuance of such convertible or
exchangeable shares adopted by the Board of Directors.
(f) Redeemability. Common Shares may be made redeemable at the option
of the Corporation or upon the occurrence of a designated event, if and to the
extent now or subsequently allowed by the Wyoming Business Corporation Act, as
such law may subsequently be amended, and the terms and conditions of
redemption, including the date or dates upon or after which they shall be
redeemable, the amount per share payable in case of redemption and any variance
in the amount or amounts payable, among other terms, conditions and limitations
which may be imposed, may be fixed and established by the Board of Directors in
the resolution or resolutions authorizing the issuance of redeemable Common
Shares. Any such redemption may be made without the vote or approval of
shareholders.
III. GENERAL MATTERS
(a) Capital. The portion of the consideration received by the
Corporation upon issuance of any of its shares that shall constitute "capital"
within the meaning of the Wyoming Business Corporation Act shall be (1) in the
case of par-value shares, the par value thereof, and (2) in the case of shares
without par value, the stated value of such shares as determined by the Board of
Directors at the time of issuance; provided, that if no stated value is
determined at the time that no-par-value shares are issued, the entire
consideration to be received for the shares shall constitute capital.
(b) Fully Paid and Nonassessable. Any and all shares of Common or
Preferred Stock issued by the Corporation for which not less than the portion of
the consideration to be received determined to be "capital" has been paid to the
Corporation, provided the Corporation has received a promissory note or other
binding legal obligation of the purchaser to pay the balance thereof, shall be
deemed fully paid and nonassessable shares.
(c) Amendment of Shareholder Rights. So long as no shares of any class
or series established by resolution of the Board of Directors have been issued,
the voting rights, designations, preferences and relative, optional,
participating or other rights of these shares may be amended by resolution of
the Board of Directors.
(d) Status of Certain Shares. Shares of Preferred or Common Stock which
have redeemed, converted, exchanged, purchased, retired or surrendered to the
Corporation, or which have been reacquired in any other manner, shall have the
status of authorized and unissued shares and may be reissued by the Board of
Directors as shares of the same or any other series, unless otherwise provided
herein or in the resolution authorizing and establishing the shares.
{VOTING OF SHAREHOLDERS}
<PAGE>
FOURTH. The following provisions are hereby adopted for the purpose of
regulating certain matters relating to the voting of shareholders of the
Corporation:
(a) Definitions. Whenever the term "total voting power" appears in
these Articles, it shall mean all shares of the Corporation entitled to vote at
a meeting or on a question presented for shareholder approval, and of every
class or series of shares entitled to vote by class or series. Whenever the term
"votes cast" appears in these Articles, it shall mean the total number of voting
shares of the total voting power which were unequivocally voted in favor of or
against a director standing for election or a matter presented for shareholder
approval at a legal meeting which commenced with a quorum.
(b) Quorum. A majority of the total voting power, or where a separate
vote by class or series is required, a majority of the voting shares of each
such class or series, represented in person or by proxy, shall constitute a
quorum at any meeting of the Corporation's shareholders.
(c) Vote Required. Any action to be taken by the Corporation's
shareholders at any valid meeting at which a quorum is present shall require the
affirmative vote only a majority of the votes cast, except where these Articles
or the Corporation's Bylaws then in effect requires the affirmative vote of a
higher proportion of the votes cast or requires the affirmative vote of a
proportion of the total voting power, and except where the Wyoming Business
Corporation Act specifically requires the affirmative vote of a majority of all
the votes entitled to be cast. Directors shall be elected by plurality vote.
Abstentions from voting shall not be considered in the tallying of votes.
Nothing contained in this Article FOURTH shall affect the voting rights of
holders of any class or series of shares entitled to vote as a class or by
series. The Bylaws may provide for the vote necessary at any adjournment of a
duly called meeting for which a quorum was not obtained.
(d) Manner of Voting; Etc. The vote of shareholders may be taken at a
meeting by a show of hands or other method authorized by the Board of Directors.
Written ballots shall be used only upon authorization of the Board of Directors
or as provided in the Corporation's Bylaws. Cumulative voting shall not be
allowed in the election of directors.
(e) Action Without Meeting. Any action by the shareholders may be taken
by written consent, in lieu of a meeting and without prior notice or vote, by
the holders of the total voting power. The manner of obtaining any such written
consent shall be governed by the Corporation's Bylaws.
(f) Shareholder Ratification. Any contract, transaction, or act of the
Corporation or of the directors which shall be ratified by vote of the
shareholders at any annual meeting, or at any special meeting called for such
purpose, or by means of a written consent in lieu of a meeting signed by the
shareholders, shall so far as permitted by law be as valid and as binding as
though ratified by every shareholder of the Corporation.
{CONCERNING SHAREHOLDERS, DIRECTORS AND OFFICERS}
FIFTH. The following provisions are hereby adopted for the purpose
of defining, limiting, and regulating the powers of the Corporation and of
the directors, officers and shareholders:
(a) Number of Directors. The number of Directors shall be as fixed in
the Bylaws. In the absence of such provision in the Bylaws, the Corporation
shall have THREE Directors. Directors shall be elected by plurality vote and
need not be elected by written ballot, except as prescribed in the Bylaws.
(b) Removal of Directors. A director of the Corporation, or the entire
Board of Directors of the Corporation, may be removed by the shareholders, with
or without cause, upon the affirmative vote of the holders of a majority of the
total voting power, without considering the vote of the director sought to be
removed.
(c) Removal of Officers and Employees. Unless the Bylaws otherwise
provide, any officer or employee of the Corporation (other than a director) may
be removed at any time with or without cause by the Board of Directors
<PAGE>
or by any committee or superior officer upon whom such power of removal may be
conferred by the Bylaws or by authority of the Board of Directors, without
prejudice, however, to existing contractual rights.
(d) Corporate Opportunities. The officers, directors and other members
of management of the Corporation shall be subject to the doctrine of "corporate
opportunities" only insofar as it applies to any business opportunity (i) of a
type falling within the regular business or operations of the Corporation, or
(ii) in which the Corporation has expressed an interest as determined from time
to time by the Corporation's Board of Directors, as evidenced by resolutions
appearing in the Corporation's minutes. All such business opportunities which
come to the attention of the officers, directors, and other members of
management of the Corporation shall be disclosed promptly to the Corporation and
made available to it. The Board of Directors may reject any business opportunity
presented to it, and only thereafter may any officer, director or other member
of management avail himself of such opportunity. The provisions of this
paragraph shall not be construed to release any employee of the Corporation from
any fiduciary duties which he may have to the Corporation.
{BYLAWS}
SIXTH. The initial Bylaws of the Corporation may be adopted by its
Board of Directors. The power to alter, amend or repeal the Bylaws or adopt new
Bylaws shall be vested in the Board of Directors, subject to the right of the
shareholders to alter, amend or repeal such Bylaws or adopt new Bylaws. The
Bylaws may not contain any provision inconsistent with law or these Articles.
{INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS}
SEVENTH. The following provisions are hereby adopted for the purpose of
defining and regulating certain rights of directors, officers and others in
respect of indemnification and related matters.
(a) Actions, Suits or Proceedings Other than by or in the Right of the
Corporation. The 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
(other than an action by or in the right of the Corporation), whether formal or
informal by reason of the fact that he is or was or has agreed to become a
director, officer, employee or agent of the Corporation, or is or was serving or
has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, 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 nob contendere or its equivalent, shall not, of itself, be determinative
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 or
that, with respect to any criminal proceeding, he had reasonable cause to
believe that his conduct was unlawful.
(b) Actions or Suits by or in the Right of the Corporation. The
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 by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was or has agreed to become a
director, officer, employee or agent of the Corporation, or is or was serving or
has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and expenses (including amounts
paid in settlement and attorney's fees) actually and reasonably incurred by him
or on his behalf in connection with the defense or settlement of such action or
suit and any appeal therefrom, 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 to the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the Court of Chancery or such other court shall deem
proper.
<PAGE>
(c) Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Article SEVENTH, to the
extent that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in Sections (a) and (b) of this Article SEVENTH, or in
defense of any claim, issue or matter therein, he may be indemnified against all
costs, charges and expenses (including attorney's fees) actually and reasonably
incurred by him or on his behalf in connection therewith.
(d) Determination of Right to Indemnification. Indemnification under
Sections (a) and (b) of this Article SEVENTH (unless ordered by a court) shall
only be made by the Corporation if a determination is made (i) by the Board of
Directors by majority vote of a quorum consisting of directors not at the time
parties to such action, suit or proceeding, or (ii) by independent legal counsel
in a written opinion, selected by the majority vote of a quorum of the Board of
Directors or (ill) by the shareholders, not counting votes owned or voted under
the control of directors who are at the time parties to such action, suit or
proceeding, that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Sections (a) and (b) of this Article SEVENTH.
(e) Advances of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys fees) incurred by a person referred to in Sections
(a) or (b) of this Article SEVENTH 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; provided, however, that the payment of such
costs, charges and expenses incurred by a director or officer in his capacity as
a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only (i) upon
receipt of a written affirmation of his good faith belief that he has met the
standard of conduct set forth in Section (a) and (b) of this Article SEVENTH,
(ii) upon receipt of a written undertaking, executed personally or on his
behalf, to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article, which shall be an unlimited
obligation of the director but need not be secured and may be accepted without
reference to financial ability to make repayment and (iii) upon a determination
made in the manner set forth in Section (d) of this Article SEVENTH that the
facts then known to those making the determination would not preclude
indemnification under this Article SEVENTH. Such costs, charges and expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors by majority vote of a quorum deems
appropriate. The Board of Directors by a majority vote of a quorum may, in the
manner set forth above, and upon approval of such director, officer, employee or
agent of the Corporation, authorize the Corporation's counsel to represent such
person, in any action, suit or proceeding, whether or not the Corporation is a
party to such action, suit or proceeding.
(f) Procedure for Indemnification. Any indemnification under Sections
(a), (b) and (c), or advance of costs, charges and expenses under Section (e) of
this Article SEVENTH, shall be made promptly, and in any event within 60 days,
upon the written request of the director or officer. The right to
indemnification or advances as granted by this Article shall be enforceable by
the director or officer in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no disposition
thereof is made within 60 days. Such person's costs and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section (e) of this
Article SEVENTH where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Sections (a) or (b) of this Article SEVENTH, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, its independent legal counsel and its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections (a)
or (b) of this Article SEVENTH, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel and its shareholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
(g) Settlement. If in any action, suit or proceeding, including any
appeal, within the scope of Sections (a) or (b)of this Article SEVENTH, the
person to be indemnified shall have unreasonably failed to enter into a
settlement
<PAGE>
thereof, then, notwithstanding any other provision hereof, the indemnification
obligation of the Corporation to such person in connection with such action,
suit or proceeding shall not exceed the total of the amount at which settlement
could have been made and the expenses by such person prior to the time such
settlement could reasonably have been effected.
(h) Other Rights; Continuation of Right to Indemnification. The
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which any director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of shareholders or disinterested directors or otherwise, both as to any
action in his official capacity and as to action in another capacity while
holding office or while employed by or acting as agent for the Corporation, 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 person. All rights to indemnification under this Article
shall be deemed to be a contract between the Corporation and each director or
officer of the Corporation who serves or served in such capacity at any time
while this Article SEVENTH is in effect. Any repeal or modification of this
Article SEVENTH or any repeal or modification of relevant provisions of the
Wyoming Business Corporation Act or any other applicable laws shall not in any
way diminish any rights to indemnification of such director, officer, employee
or agent or the obligations of the Corporation arising hereunder. This Article
SEVENTH shall be binding upon any successor corporation to this Corporation,
whether by way of acquisition, merger, consolidation or otherwise.
(i) Exceptions to Indemnification Right. Notwithstanding any other
language in this Charter, the Corporation shall not be obligated pursuant to the
terms of this Charter:
1. Claims Initiated by Indemnitee. To indemnify or advance
expenses to any person with respect to proceedings or claims initiated
or brought voluntarily by him or her and not by way of defense, except
with respect to proceedings brought to establish or enforce a right to
indemnification under this Charter or any other statue or law or
otherwise as required under the Wyoming Business Corporation Act, but
such indemnification or advancement of expenses may be provided by the
Corporation in specific cases if the Board of Directors finds it to be
appropriate; or
2. Lack of Good Faith. To indemnify any person for any
expenses incurred by him or her with respect to any proceeding
instituted by him or her to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material
assertions made by him or her in such proceeding was not made in good
faith or was frivolous;
3. Insured Claims. To indemnify any person for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to him or her by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Corporation.
4. Claims Under Section 16(b). To indemnify any person for
expenses or the payment of profits arising from the purchase and sale
by him or her of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar or
successor statute.
(j) Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was or has agreed to become 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 or on his behalf in any such capacity,
or arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability under the provisions of this
Article SEVENTH; provided, however, that such insurance is available on
acceptable terms, which determination shall be made by the Board of Directors by
majority vote of a quorum.
(k) Savings Clause. If this Article SEVENTH or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation (i) shall nevertheless indemnify each director and officer of the
Corporation and (ii) may nevertheless indemnify each employee and agent of the
Corporation, as to any cost, charge and expense (including attorney's fees),
judgment, fine and amount paid in settlement with respect to any action,
<PAGE>
suit or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article SEVENTH that shall not have
been invalidated and to the full extent permitted by applicable law.
(l) Amendment. The affirmative vote of at least a majority of the total
voting power shall be required to amend, repeal, or adopt any provision
inconsistent with, this Article SEVENTH. No amendment, termination or repeal of
this Article SEVENTH shall affect or impair in any way the rights of any
director or officer of the Corporation to indemnification under the provisions
hereof with respect to any action, suit or proceeding arising out of, or
relating to, any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or appeal.
(m) Subsequent Legislation. If the Wyoming Business Corporation Act is
amended after adoption of this Charter to further expand the indemnification
permitted to directors, officers, employees or agents of the Corporation, then
the Corporation shall have the power to indemnify such persons to the fullest
extent permitted by the Wyoming Business Corporation Act, as so amended.
(n) Restriction. Notwithstanding any other provision hereof whatsoever,
no person shall be indemnified under this Article SEVENTH who is adjudged liable
for (i) a breach of duty to the Corporation or its shareholders that resulted in
personal enrichment to which he was not legally entitled, (ii) intentional fraud
or dishonesty or illegal conduct, or (ii) for any other cause prohibited by
applicable state or federal law, unless a court determines otherwise.
{EXCLUSION OF DIRECTOR LIABILITY}
EIGHTH. As authorized by Section 17-16-834 of the Wyoming Business
Corporation Act, no director of the Corporation shall be personally liable to
the Corporation or any shareholder thereof for monetary damages for breach of
his fiduciary duty as a director, except for liability (i) for any breach of a
Director's duty of loyalty to the Corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (ill) for acts in violation of Section 17-16-833 of
the Wyoming Business Corporation Act, as it now exists or may hereafter be
amended, or (iv) for any transaction from which the director derives an improper
personal benefit. This Article EIGHTH shall apply to a person who has ceased to
be a director of the Corporation with respect to any breach of fiduciary duty
which occurred when such person was serving as a director. This Article EIGHTH
shall not be construed to limit or modify in any way any director's right to
indemnification or other right whatsoever under these Articles, the
Corporation's Bylaws or the Wyoming Business Corporation Act.
If the Wyoming Business Corporation Act hereafter is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of the Corporation's directors, in addition to the limitation
on personal liability provided herein, shall be limited to the fullest extent
permitted by the Wyoming Business Corporation Act as so amended. Any repeal or
modification of this Article EIGHTH by the shareholders shall be prospective
only and shall not adversely affect any limitation on the personal liability of
any director existing at the time of such repeal or modification.
NINTH. The Corporation expressly elects not to be governed by Sections
17-18-105 through 17-18-111 of the Wyoming Business Corporation Act, as it now
exists or hereafter may be amended, or any successor or similar statute relating
to business combinations. The affirmative vote of at least a majority of the
total voting power is necessary to repeal, amend or adopt any provision
inconsistent with this Article NINTH.
{CERTAIN POWERS RESERVED TO DIRECTORS}
TENTH. The Corporation hereby reserves solely to the Board of Directors
the power and authority to borrow from time to time on behalf and in the name of
the Corporation and to determine the amount, terms, provisions and conditions of
any such borrowing; and in connection therewith to create, issue and deliver
instruments of indebtedness, including but not limited to promissory notes,
bonds, debentures and similar instruments containing such terms, provisions and
conditions as the Board of Directors deems necessary or advisable in its sole
discretion.
In connection with the creation, issuance or delivery of any such form
or evidence of indebtedness, there is also reserved solely to the Board of
Directors the power and authority to create, enter into and execute indentures
of trust,
<PAGE>
conveyances, mortgages and similar instruments containing such terms, provisions
and conditions as the Board of Directors deems necessary or advisable in its
sole discretion; and, without need of prior or subsequent shareholder approval,
to pledge, mortgage or convey any or all property, assets, rights, privileges or
franchises now or hereafter belonging to the Corporation in order to secure the
payment when due of the principal, interest and other charges due upon any such
promissory notes, bonds or debentures or other obligations or evidences of
indebtedness of the Corporation; and to create, issue and deliver additional
amounts or series of obligations under the terms of any such indenture,
conveyance or mortgage after creation and issuance of the original obligations
thereunder. Any form of indebtedness authorized by the Board of Directors may be
made convertible into Common Stock or other securities of the Corporation and
may be made redeemable at such time and on such terms (including the use of a
sinking fund or similar arrangement) as the Board of Directors deems necessary
or advisable in its sole discretion.
The affirmative vote of a majority of the total voting power shall be
required to amend, repeal or adopt any provision inconsistent with this Article
TENTH.
{AMENDMENT}
ELEVENTH. The Corporation reserves the right to amend, restate or
repeal any provision contained in these Articles, in the manner now or hereafter
prescribed by statute, and all rights conferred on shareholders are granted
subject to this reservation. The affirmative vote of a majority of the votes
cast is necessary to amend or restate provisions of these Articles, except such
provisions which expressly require a higher proportion of the votes cast or
require the affirmative vote of a proportion of the total voting power.
-----------------------
END OF AMENDMENT
-----------------------
C. This amendment does not provide for any exchange, reclassification
or cancellation of issued shares.
D. Pursuant to resolution of the Company's Board of Directors, the
foregoing Certificate of Amendment was duly approved by affirmative vote of the
holders of 909,000 shares of the Company's 1,000,000 shares of capital stock
outstanding and entitled to vote on the proposed amendment, and therefore
sufficient for approval, all in accordance with the Wyoming Business Corporation
Act and the existing Articles of Incorporation and bylaws of the Company.
E. This foregoing amendment was duly adopted on May 15, 1998 in
accordance with the provisions of Section 17-16-1003 of the Wyoming Business
Corporation Act.
<PAGE>
IN WITNESS WHEREOF, this corporation has caused this Certificate of
Amendment to be signed by its President, and attested by its Secretary, this
15th day of May, 1998.
DIVERSIFIED TECHNOLOGIES, INC.
ATTEST: By /s/ Jerry Nelson
-----------------------------
Jerry Nelson, President
By /s/ Elisabeth M. Crosse
-------------------------------
Elisabeth M. Crosse, Secretary
[Diversified Technologies, Inc.
Corporate Seal of Wyoming
1995 - appears on original document]
<PAGE>
95-303298-D FILED
JUN 16 98 3 3 5 1 3 1
WYOMING
SECRETARY OF
STATE
-------------------------------------------------------
D I V E R S I F I E D T E C H N O L O G I E S, I N C.
-------------------------------------------------------
CERTIFICATE OF AMENDMENT
to
ARTICLES OF INCORPORATION
of
DIVERSIFIED TECHNOLOGIES, INC.
DIVERSIFIED TECHNOLOGIES, INC., a corporation organized and existing
under and by virtue of the Wyoming Business Corporation Act, does hereby certify
that:
A. The name of the corporation is DIVERSIFIED TECHNOLOGIES, INC.
B. As permitted by Section 17-16-602 of the Wyoming Business
Corporation Act, Article FIFTH, Part I of the Articles of Incorporation of this
Corporation, as amended to date, expressly vest authority in the Board of
Directors to prescribe the series, number of each series, voting powers,
designations, preferences, limitations, restrictions and relative rights of the
Corporation's preferred shares, without shareholder approval.
C. The Board of Directors of the Corporation has, by the unanimous
written consent of its members taken on June 15, 1998, pursuant to Section
17-16-602 of the Wyoming Business Corporation Act, duly adopted a resolution
setting forth an amendment to the Articles of Incorporation of the Corporation
designating and establishing a series of preferred stock consisting of 2,100,000
preferred shares known as the "SERIES A, VOTING CONVERTIBLE PREFERRED STOCK".
D. The Corporation submits this Certificate of Amendment to its
Articles of Incorporation for the purpose of establishing and designating such
series of preferred stock as required by Section 17-16-602 of the Wyoming
Business Corporation Act.
E. A copy of the "Resolution of the Board of Directors Establishing a
Series of Shares of Preferred Stock of DIVERSIFIED TECHNOLOGIES, INC." dated as
of June 15, 1998, setting forth the text of the amendment prescribing the
series, number of each series, voting powers, designations, preferences,
limitations, restrictions and relative rights of the Series A, Voting
Convertible Preferred Stock, is attached hereto as EXHIBIT A and is incorporated
by reference in this document as if fully set forth herein.
F. No shares of the Series A, Voting Convertible Preferred Stock have
been issued. No approval of the corporation's shareholders is necessary in
regard to this amendment or its filing with the Wyoming Secretary of State.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment as of June 15, 1998.
DIVERSIFIED TECHNOLOGIES, INC.
[Diversified Technologies, Inc. By /s/ John D. Brasher, Jr.
Corporate Seal of Wyoming, 1995 --------------------------------------
appears on original] John D. Brasher Jr., Vice President
[Received June 16, 1998 - Secretary of
X /s/ Elisabeth M. Crosse State of Wyoming seal appears on
-------------------------------- original]
Elisabeth M. Crosse, Secretary
<PAGE>
EXHIBIT A
RESOLUTION OF BOARD OF DIRECTORS
ESTABLISHING A SERIES OF SHARES OF PREFERRED STOCK
of
DIVERSIFIED TECHNOLOGIES, INC.
SERIES A, VOTING CONVERTIBLE PREFERRED STOCK
--------------------------------------------
The undersigned, constituting the entire board of directors of
DIVERSIFIED TECHNOLOGIES, INC., a Wyoming corporation ("Company"), hereby take
the following actions by unanimous written consent in lieu of a meeting, as
authorized by Sections 17-16-821 of the Wyoming Business Corporation Act:
WHEREAS, the Board of Directors of the Company ("Board") desires to
establish and designate a series of shares of Preferred Stock and to fix and
determine the relative rights and preferences thereof; and
RESOLVED, FIRST, that pursuant to 17-16-602 of the Wyoming Business
Corporation Act, the Board hereby establishes and designates a series of
Preferred Stock of the Company to consist of 2,100,000 shares, $.001 par value
per share, and hereby affixes the voting powers, designation, rights,
preferences, privileges and restrictions of the shares of such series, as
follows:
1. Designation and Consideration.
The Board hereby designates 2,100,000 shares of its authorized
but unissued shares of preferred stock, $.001 par value per share, as the
"SERIES A, VOTING CONVERTIBLE PREFERRED STOCK". Shares of this series are herein
referred to as the "Series A Preferred Stock." Each share of Series A Preferred
Stock shall be issued for such consideration as the Board may determine (whether
cash, property or other assets). Once duly issued for the consideration herein
called for, shares of the Series A Preferred Stock shall be deemed fully paid
and nonassessable.
2. Dividends.
The holders of the shares of Series A Preferred Stock shall
not be entitled to receive any dividends thereon; provided, that, if a dividend
is declared on the common shares of the Company or on any series of preferred
shares ranking equal or junior to the Series A Preferred Stock, then in such
event the holders of the Series A Preferred Stock shall be entitled to receive a
proportional share of such dividend, based upon the proportion of the number of
shares of Series A Preferred Stock then outstanding to the total number of
shares of common and preferred stock entitled to share in such dividend.
3. Redemption.
The shares of Series A Preferred Stock shall not be subject to
redemption.
4. Conversion Right.
4.1 Conversion into Common Stock. Each share of Series A
Preferred Stock may, subject to all terms and conditions of this Section 4 and
subject to adjustment as provided below, at any time after issuance, be
converted at the option of the holder thereof into fully paid, nonassessable
common stock of the Company, no par value per share.
(a) Maximum Conversion Rate. Each share of Series A Preferred
Stock may be converted into six (6) fully paid, nonassessable shares of common
stock of the Company, subject to the following conversion conditions:
<PAGE>
(1) one fourth (1/4th) of the shares of Series A
Preferred Stock held may be converted when the
two-port Voice Server owned by the Company's wholly
owned subsidiary, ATC Group, Inc., a Maryland
corporation, has successfully completed original beta
testing by a customer, as evidenced by the customer's
final written acceptance specifying all testing
carried out and test results;
(2) one fourth (1/4th) of the shares of Series A
Preferred Stock held may be converted when the
four-port Voice Server owned by the Company's wholly
owned subsidiary, ATC Group, Inc., a Maryland
corporation, has successfully completed original beta
testing by a customer, as evidenced by the customer's
final written acceptance specifying all testing
carried out and test results;
In addition to the customer's final written
acceptance as called for in subparagraphs (i) and
(ii) preceding, it shall also be a conversion
condition that the Company's full board of directors
by unanimous vote determines that the customer's beta
testing occurred as represented in the final written
acceptance and that such testing was reasonably
appropriate to evaluate fitness of the tested device
for its intended use;
(3) one fourth (1/4th) of the shares of Series A
Preferred Stock held may be converted when the
Company and all subsidiaries have on a combined basis
achieved an aggregate of Five Million Dollars
(US$5,000,000.00) in booked sales, evidenced by firm
purchase orders, firm distribution agreements,
license agreements, royalty agreements or other
written agreements committing contracting parties to
purchase a minimum specified dollar amount of product
(collectively, the "Sales Agreements"), subject to no
condition, contingency or limitations other than
product delivery and satisfying technical
specifications made part of the Sales Agreements; and
(4) one fourth (1/4th) of the shares of Series A
Preferred Stock held may be converted when the
Company and all subsidiaries have on a combined basis
achieved an aggregate of Ten Million Dollars
(US$10,000,000.00) in booked sales, evidenced by
Sales Agreements that are not subject to any
condition, contingency or limitation other than
product delivery and satisfying technical
specifications made part of the Sales Agreements.
In addition to the booked sales required by
subparagraphs (iii) and (iv) preceding, it shall also
be a conversion condition that the Company's full
board of directors by unanimous vote determines that
all Sales Agreements which evidence the booked sales
are valid, arm's length agreements and appropriate to
the Company's operations.
The four conversion conditions of this Paragraph
4.1(a) need not be satisfied in any particular order,
nor is the satisfaction of any conversion condition
dependent upon the prior satisfaction of any other
conversion condition.
(b) Automatic Conversion at Maximum Conversion Rate.
Notwithstanding the provisions of Paragraph 4.1(a) preceding, if the Company has
not realized US$1,000,000 in cash or other value from an offering of its
securities prior to deduction of offering-related expenses and other
non-operating expenses not to exceed US$100,000, (the "Qualifying Amount")
within six (6) months following the date of original issuance of the Series A
Preferred Stock ("Original Issue Date"), then each share of Series A Preferred
Stock shall, automatically and without any requirement to satisfy any conversion
conditions of this Section 4 and without need of any further action on the part
of holders of Series A Preferred Stock except to surrender the Series A
Preferred Stock certificates to the Company's Secretary for conversion, be
converted into and thereafter represent six (6) shares of the common stock of
the Company; provided, however, that if on the date which is six (6) months
following the Original Issue Date, a total of at least $650,000 has then been
realized by the Company in cash or other value from an offering of its
securities prior to deductions, then the
2
<PAGE>
six-month period in which the Company must raise the Qualifying Amount shall be
extended to eight (8) months following the Original Issue Date.
(c) When Conversion Rate Determinable by Board of Directors.
For purposes of this Section 4, the term "Reorganization" includes any merger,
consolidation, share exchange, or other business combination pursuant to which
the Company is not the surviving corporation after the effective date of the
Reorganization, and any sale or lease of all or substantially all of the assets
of the Company, and the term "Reorganization Agreement" shall mean a plan or
agreement with respect to a Reorganization. In the event the Company consummates
a Reorganization, every share of Series A Preferred Stock issued and outstanding
on the Reorganization's effective date shall on such date be converted into the
number and kind of shares or other property that would be received by a person
holding the number of common shares of the Company into which the shares of
Series A Preferred Stock would be convertible on the effective date.
Notwithstanding any other provisions of this Paragraph 4.1, if the
conversion conditions set forth in subparagraphs 4.1 (a)(i) and (ii) have been
satisfied by the Reorganization's effective date, then any requirement set forth
herein to satisfy the conversion conditions set forth in subparagraphs 4.1
(a)(iii) and (iv) shall be waived and such two conditions shall be deemed to
have been fully satisfied. If on the Reorganization's effective date the
conversion conditions set forth in subparagraphs 4.1 (a)(i) and (ii) have not
been satisfied, then the immediately following paragraph shall apply to the
holders of the Series A Preferred Stock.
In regard to any conversion conditions which at the time of execution
of the Reorganization Agreement have not been satisfied, the Board of Directors
shall, prior to such effective date, in good faith determine the extent to which
such remaining conversion conditions have been partially satisfied. [For
example, achieving $1,000,000 in booked sales would satisfy one-fifth of the
subparagraph 4.1(a)(iii) conversion condition and one-tenth of subparagraph
4.1(a)(iv) conversion condition, respectively.] The Board of Directors shall
then determine the number of shares of the Company's common stock into which the
shares of Series A Preferred Stock may be converted, which shall be in
proportion to the extent the remaining conversion conditions have then been
partially satisfied. The determination of the Board of Directors in this matter
shall be final and binding for all purposes.
(d) Automatic Conversion at Minimum Conversion Rate. On the
fifth (5th) anniversary of the Original Issue Date of the Series A Preferred
Stock, every share of Series A Preferred Stock which has not theretofore
satisfied any of the foregoing conversion conditions in this Section 4 and been
converted to common stock shall, automatically and without any requirement to
satisfy any conversion conditions of this Section 4 and without need of any
further action on the part of holders of Series A Preferred Stock except to
surrender the Series A Preferred Stock certificates to the Company's Secretary
for conversion, be converted into and thereafter represent one (1) share of the
common stock of the Company.
(e) Other Matters Relating to Conversion. The common shares of
the Company into which shares of Series A Preferred Stock are converted
("Conversion Shares") will not be registered under the Securities Act of 1933,
as amended ("Act"), but shall be issued in reliance upon Section 4(2) of the Act
or Rule 505 or 506 of Regulation D under the Act, or Regulation S under the Act,
or other available exemption from registration under the Act. Conversion shall
be deemed to occur on the date a certificate evidencing shares of Series A
Preferred Stock being converted is presented to the Company or to the Company's
transfer agent and registrar, properly endorsed and accompanied by the proper
fee payable for issuance of the Conversion Shares. Each certificate evidencing
Series A Preferred Shares or Conversion Shares shall be subject to such
restrictions, conditions and limitations, and shall bear such restrictive
legends, if any, as are required by applicable laws, rules and regulations.
4.2 Other Adjustments to Conversion Rates. The conversion
rates set forth in paragraph 4.1 above will be subject to further adjustment if
the Company is reorganized, merged, consolidated or party to a plan of exchange
with another corporation pursuant to which shareholders of the Company receive
any shares of stock or other securities, or in the event of any sale or other
transfer of all or substantially all of the Company's assets, or in case of any
reclassification of the Common Stock. Holders of shares of the Series A
Preferred Stock shall be entitled, after the occurrence of any such event, to
receive on conversion thereof the kind and amount of shares of stock or other
securities,
3
<PAGE>
cash or other property receivable upon such event by a holder of the number of
Common Shares into which the shares of Series A Preferred Stock might have been
converted immediately prior to occurrence of the event. In the event of a split
or combination, the number of Conversion Shares issuable shall be appropriately
adjusted. For purposes of this paragraph, the term "shareholder" means a holder
of Common Stock.
4.3 No Fractional Shares Issuable. No fractional share of
Common Stock, or scrip or other instrument representing a fractional Common
Share, shall be issued upon conversion of any share of Series A Preferred Stock.
If any such conversion results in a fractional share of Common Stock being
issuable, the Company issue a whole share if the fraction is one half (0.50) or
more, and the converting holder shall forfeit the fraction if less than one half
(0.50).
4.4 Common Stock Authorized and Reserved. The Board hereby
specifically authorizes the issuance of and reserves for issuance an aggregate
of 12,400,002 Common Shares upon conversion of the Series A Preferred Stock,
giving effect to the conversion rates set forth in paragraph 4.1; provided,
however, that if any adjustment to the conversion rates should require the
issuance of a greater number of Common Shares, then the issuance of such greater
number of Common Shares hereby is authorized and reserved.
5. Rights on Liquidation, Dissolution, or Winding Up.
5.1 Payment of Liquidation Preference. In the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company,
the holders of shares of Series A Preferred Stock shall be subordinate to all
claims of the Company's creditors and to claims of the holders of every series
of the Company's preferred stock ranking senior upon liquidation to the Series A
Preferred Stock, but otherwise are entitled to receive a liquidation preference
in the amount of $.001 per share, before any payment is made to any holder of
common shares or any series of preferred shares ranking junior to the shares of
Series A Preferred Stock. After the payment of such liquidation preference and
any liquidation preferences payable to holders of any other series of preferred
shares, the holders of the shares of Series A Preferred Stock shall share
ratably with the holders of the Company's common stock and all series of
preferred stock ranking on a parity with or junior to the Series A Preferred
Stock in the Company's assets available for distribution to its shareholders.
5.2 Effective Reorganization. Neither the consolidation or
merger of the Company with or into any other company nor the lease, exchange,
sale or transfer of all or substantially all of the Company's assets shall be
deemed to be a liquidation, dissolution or winding up of the Company's affairs,
whether voluntary or otherwise, within the meaning of this Section 5.
6. Voting Rights.
The shares of Series A Preferred Stock shall have the right to
vote in elections of directors and on other matters generally as to which
shareholders of the Company may vote. Each share of Series A Preferred Stock
shall be entitled to cast three (3) votes on every matter placed before
shareholders for consideration. The shares of Series A Preferred Stock shall
vote with the common shares and not as a separate class. Any matter which
requires the approval of the holders of the Series A Preferred Stock shall
require only the affirmative vote of a majority of the votes cast by the holders
of such shares, voting as a separate class, at any lawful meeting of such
holders which commences with a quorum; or if such shares vote by means of
written consent in lieu of a meeting, the concurrence of only a majority of the
holders of the Series A Preferred Stock shall be necessary.
4
<PAGE>
7. Certain Corporate Actions.
The Company shall not amend its articles or certificate of
incorporation without the prior approval of the holders of the Series A
Preferred Stock, voting as a separate class, if such amendment would directly or
indirectly effect any adverse change in any of the rights, preferences or
privileges of, or limitations provided for herein for the benefit of, the
holders of Series A Preferred Stock. Without limiting the generality of the
foregoing, no such amendment may be effected without such approval if such
amendment would:
(a) Reduce the amount payable to the holders of Series A
Preferred Stock upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company, or change the seniority of
the liquidation preferences of the holders of Series A Preferred Stock
relative to the rights upon liquidation, dissolution or winding up of
the holders of any other class or series of the Company's shares; OR
(b) Cancel or modify the right of holders of Series A
Preferred Stock to convert such shares to Common Shares of the Company,
all as set forth herein.
8. Rank of Series A Preferred Stock.
The shares of the Series A Preferred Stock shall rank junior
to all series of preferred stock of the Company hereafter created, unless such
subsequently created series expressly ranks on a parity with or subordinate to
the Series A Preferred Stock. The Company may issue other shares of another
class or series of preferred stock after the date hereof which rank on a parity
with or senior to the Series A Preferred Stock.
9. Status of Certain Shares.
Shares of Series A Preferred Stock which (i) have, been
redeemed, converted, exchanged, purchased, retired or surrendered to the
Company, or (ii) have been reacquired in any other manner, or (iii) have not
been sold or issued and which by determination of the Board of Directors shall
not be sold or issued as Series A Preferred Stock, shall have the status of
authorized and unissued preferred shares and may be reissued by the Board of
Directors as shares of any other series of preferred stock. In any such event,
the Board of Directors may but shall not required to file an amendment to the
Company's articles of incorporation with the Nevada Secretary of State to
reflect any such fact.
10. Tax Matters.
The holders of Series A Preferred Stock shall be solely liable
for and shall pay any and all taxes and other governmental charges, of every
kind, that may be imposed in respect of the issue or delivery of Common Shares
upon redemption or conversion of Series A Preferred Stock. The Company may
withhold certain of such Common Shares in order to satisfy the Company's tax
withholding obligations or take similar steps to ensure that such taxes and
charges are duly paid. If the Company becomes liable for or pays any such taxes
due to acts of a Series A Preferred Stock holder, it may, in order to recoup the
amount of such tax or tax liability:
(i) withhold the amount of such tax or tax liability from any
funds whatever in or coming into the Company's possession and belonging
to such holder, including dividends declared on the Series A Preferred
Stock and payable to such holder; and/or
(ii) cancel and reissue in the Company's name such number of
shares of Series A Preferred Stock, based upon the original issue price
per share, as will equal the amount of the tax paid or tax liability
incurred.
11. No Limit Imposed on Corporate Powers.
Except to the extent expressly set forth herein, the issuance
and existence of the Series A Preferred Stock shall not affect in any way the
right or power of the Company or its shareholders to make or authorize any and
all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any
5
<PAGE>
merger or consolidation of the Company, or any issue of bonds, debentures or
other indebtedness, or the dissolution or liquidation of the Company, or any
sale, exchange or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
IN WITNESS WHEREOF, the undersigned directors have duly
approved the foregoing resolution effective as of June 15, 1998.
/s/ John D. Brasher, Jr.
----------------------------------
John D. Brasher Jr.
[Diversified Technologies, Inc.
Corporate Seal of Wyoming, 1995
appears on original]
6
<PAGE>
ACKNOWLEDGEMENTS
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that before me, the undersigned Notary Public, duly
qualified and commissioned in and for the above jurisdiction, personally came
and appeared John D. Brasher Jr., Vice President of DIVERSIFIED TECHNOLOGIES,
INC., a Wyoming corporation, who acknowledged that he signed the foregoing
document and that the statements therein contained are true and correct.
SWORN TO AND SUBSCRIBED before me on June 15, 1998.
My Commission Expires
X /s/ Jennifer S. Myers My Commission Expires: October 22, 2001
------------------------- -------------------------
Notary Public
[Jennifer S. Myers, Notary
Public, State of Colorado seal
appears on original]
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that before me, the undersigned Notary Public, duly
qualified and commissioned in and for the above jurisdiction, personally came
and appeared Elizabeth M. Crosse, Secretary of DIVERSIFIED TECHNOLOGIES, INC., a
Wyoming corporation, who acknowledged that she signed the foregoing document and
that the statements therein contained are true and correct.
SWORN TO AND SUBSCRIBED before me on June 15, 1998.
My Commission Expires
X /s/ Jennifer S. Myers My Commission Expires: October 22, 2001
------------------------- -------------------------
Notary Public
[Jennifer S. Myers, Notary
Public, State of Colorado seal
appears on original]
7
<PAGE>
ACKNOWLEDGEMENTS
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that before me, the undersigned Notary Public, duly
commissioned and qualified in and for the above jurisdiction, personally came
and appeared Jerry Nelson, the President of DIVERSIFIED TECHNOLOGIES, INC., who
after being duly sworn declared that he executed the foregoing Certificate of
Amendment as his free act and deed and that the statements therein set forth are
true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on June 1,
1998.
My Commission Expires
X /s/ Jennifer S. Myers My Commission Expires: October 22, 2001
------------------------- -------------------------
Notary Public
[Jennifer S. Myers, Notary
Public, State of Colorado seal
appears on original]
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that before me, a Notary Public duly commissioned and
qualified in and for the above jurisdiction, personally came and appeared
Elizabeth M. Crosse, the Secretary of DIVERSIFIED TECHNOLOGIES, INC., who after
being duly sworn declared that she executed the foregoing Certificate of
Amendment as her free act and deed and that the statements therein set forth are
true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on June 1,
1998.
My Commission Expires
X /s/ Jennifer S. Myers My Commission Expires: October 22, 2001
------------------------- -------------------------
Notary Public
[Jennifer S. Myers, Notary
Public, State of Colorado seal
appears on original]
8
<PAGE>
95-303298 D CERTIFICATE OF AMENDMENT FILED
to JUL 8 98 3 3 5 7 3 0
ARTICLES OF INCORPORATION WYOMING
of SECRETARY OF STATE
DIVERSIFIED TECHNOLOGIES, INC.
(A Wyoming Corporation)
DIVERSIFIED TECHNOLOGIES, INC., a corporation organized on September
12, 1995 and existing under and by virtue of the Wyoming Business Corporation
Act, DOES HEREBY CERTIFY THAT:
A. The name of this corporation is DIVERSIFIED TECHNOLOGIES, INC.
B. The Board of Directors of this corporation, by the unanimous written
consent of its members, filed with the minutes of the Board, duly adopted
resolutions setting forth a proposed amendment of the Articles of Incorporation
of the corporation, amending Article FIRST to change the name of the corporation
to TEK DIGITEL CORPORATION, declaring such amendment to be advisable. The text
of the amendment appears below within quotation marks:
"FIRST. The name of this Corporation is TEK DIGITEL CORPORATION."
---------------------------------------
END OF AMENDMENT
---------------------------------------
C. This amendment does not provide for any exchange, reclassification
or cancellation of issued shares.
D. Pursuant to resolution of the Company's Board of Directors, the
foregoing Certificate of Amendment was duly approved by affirmative vote of the
holders of 909,000 shares of the Company's 1,000,000 shares of capital stock
outstanding and entitled to vote on the proposed amendment, and therefore
sufficient for approval, all in accordance with the Wyoming Business Corporation
Act and the existing Articles of Incorporation and bylaws of the Company.
E. This foregoing amendment was duly adopted on June 30,1998 in
accordance with the provisions of Section 17-16-1003 of the Wyoming Business
Corporation Act.
IN WITNESS WHEREOF, this corporation has caused this Certificate of
Amendment to be signed by its President, and attested by its Secretary, this 2nd
day of July, 1998.
DIVERSIFIED TECHNOLOGIES, INC.
By /s/ John D. Brasher, Jr.
-----------------------------------
John D. Brasher Jr., Vice President
RECEIVED
WYOMING
SECRETARY OF STATE
98 JUL -8 AM10:05
X /s/ E. M. Crosse
----------------------------------
Elisabeth M. Crosse, Secretary
(SEAL)
[Diversified Technologies,
Inc., Corporate Seal of
Wyoming appears on
original]
<PAGE>
ACKNOWLEDGEMENTS
STATE OF COLORADO )
) SS.
COUNTY OF DENVER )
I HEREBY CERTIFY that before me, a Notary Public duly commissioned and
qualified in and for the above jurisdiction, personally came and appeared John
D. Brasher Jr., the Vice President of DIVERSIFIED TECHNOLOGIES, INC., who after
being duly sworn declared that he executed the foregoing Certificate of
Amendment as his free act and deed and that the statements therein set forth are
true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on July 2,
1998.
My Commission Expires
X /s/ Jennifer S. Myers My Commission Expires: October 22, 2001
------------------------- -------------------------
Notary Public
[Jennifer S. Myers, Notary
Public, State of Colorado seal
appears on original]
STATE OF COLORADO )
) SS.
COUNTY OF DENVER )
I HEREBY CERTIFY that before me, a Notary Public duly commissioned and
qualified in and for the above jurisdiction, personally came and appeared
Elisabeth M. Crosse, the Secretary of DIVERSIFIED TECHNOLOGIES, INC., who after
being duly sworn declared that she executed the foregoing Certificate of
Amendment as her free act and deed and that the statements therein set forth are
true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on July 2,
1998.
My Commission Expires
X /s/ Jennifer S. Myers My Commission Expires: October 22, 2001
------------------------- -------------------------
Notary Public
[Jennifer S. Myers, Notary
Public, State of Colorado seal
appears on original]
2
