EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
HOUSTON OPERATING COMPANY
ARTICLE I
NAME
The name of the corporation ("Corporation"), shall be:
HOUSTON OPERATING COMPANY
ARTICLE II
DURATION
The Corporation shall continue in existence perpetually unless sooner
dissolved according to law.
ARTICLE III
PURPOSES
The purposes for which this Corporation is organized are:
(a) To acquire by purchase or otherwise, own, hold, lease, rent,
mortgage or otherwise, to trade with and deal in real estate, lands and
interests in lands and all other property of every kind and nature;
(b) To engage in the exploration, drilling, development, and operation
of oil and gas leases and other interests in oil and gas; and purchase, own,
sell, assign, deal in, and otherwise acquire, own and dispose of in any manner,
oil and gas or other natural resources, properties, or interests therein,
including but not limited to leases, working interests, overriding royalties,
production payments, or any other interest of whatever nature;
(c) To engage in the gathering, processing, and transportation of oil,
gas, and other natural resources, and to this end acquire, own, and develop
plants and facilities for the gathering, processing, and transportation of oil,
gas, and other natural resources and to do and cause to be done any other act or
transaction necessary, convenient, or appropriate in connection with the
foregoing purpose;
(d) To manufacture, use, work, sell and deal in compounds, chemicals,
biologicals, pharmaceuticals, electronics, dry goods, food stuffs, and products
of all types, including the privileges or rights, owned or hereafter acquired by
it for manufacturing, using and vending any machine or machines for
manufacturing, working or producing any or all products, and marketing or
distributing any or all products;
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(e) To borrow money and to execute notes and obligations and security
contracts therefore, to tend any of the monies or funds of the Corporation and
to take evidence of indebtedness therefore; and to negotiate loans; to carry on
a general mercantile and merchandise business and to purchase, sell and deal in
such goods, supplies, and merchandise of every kind and nature;
(f) To engage in the export or import business of any goods, supplies,
and merchandise of every kind and nature between the United States and its
territories and possessions and any and all foreign countries or between foreign
countries, as principal or agent;
(g) To do all and everything necessary, suitable, convenient, or proper
for the accomplishment of any of the purposes or the attainment of any one or
more of the objects herein enumerated or incidental to the powers therein named
or which shall at any time appear conducive or expedient for the protection or
benefit of the Corporation, with all the powers hereafter conferred by the laws
under which this Corporation is organized; and
(h) To engage in any and all other lawful purposes, activities and
pursuits, whether similar or dissimilar to the foregoing, and the Corporation
shall have all the powers allowed or permitted by the laws of the State of
Delaware.
ARTICLE IV
CAPITALIZATION
The Corporation shall have authority to issue an aggregate of
60,000,000 shares, of which 50,000,000 shares shall be common stock having a par
value of $0.001 per share ("Common Stock"), 5,000,000 shares shall be preferred
stock having a par value of $0.001 per share ("Preferred Stock"), and 5,000,000
shares shall be preference stock having a par value of $0.001 per share
("Preference Stock").
ARTICLE V
CLASSES OF STOCK
A statement of the designations and the powers, preferences, and
rights, and the qualifications, limitations, or restrictions thereof, of the
shares of stock of each class which the Corporation shall be authorized to
issue, is as follows:
(a) Definitions. As used in this Article V or in any resolution adopted
by the board of directors providing for the issue of any particular series of
Preferred Stock or Preference Stock, the following terms shall have the
following meanings, respectively:
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(i) The term "arrearages," whenever used in connection with
dividends on any shares of Preferred Stock or Preference Stock, shall
refer to the condition that exists as to dividends which (A) have not
been paid or declared and set apart for payment to the date or for the
period indicated, and (B) are cumulative (either unconditionally, or
conditionally to the extent that the conditions have been fulfilled);
but the term shall not refer to the condition that exists as to
dividends, to the extent that they are non-cumulative, on such shares
which shall not have been paid or declared and set apart for payment.
(ii) The term "stock junior to the Preferred Stock," whenever
used with reference to the Preferred Stock, shall mean the Preference
Stock, Common Stock and any other stock of the Corporation over which
the Preferred Stock has preference or priority in the payment of
dividends and in the distribution of assets on any dissolution,
liquidation, or winding up of the Corporation.
(iii) The term "stock junior to the Preference Stock,"
whenever used with reference to the Preference Stock, shall mean the
Common Stock and any other stock of the Corporation over which the
Preference Stock has preference or priority in the payment of dividends
and in the distribution of assets on any dissolution, liquidation, or
winding up of the Corporation.
(iv) The term "subsidiary" means any corporation of which at
least a majority of the outstanding stock having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation, irrespective of whether or not at the time stock of any
other class or classes or such corporation shall have or might have
voting power by reason of the happening of any contingency, is, at the
time of determination thereof, directly or indirectly owned by the
Corporation, or by one or more subsidiaries of the Corporation, or by
the Corporation and one or more subsidiaries. As used in this
definition, the term "corporation" shall include comparable types of
business organizations authorized under the laws of any state,
territory or possession of the United States or any foreign country
however designated.
(b) Preferred Stock Provisions.
(b)(1) Authority of the Board of Directors of the Corporation Issue in
Series. Preferred Stock may be issued from time to time in one or more series,
each such series to have such designations, preferences, and relative,
participating, optional, or other special rights and qualifications, limitations
or restrictions as are expressed in this Article and in the resolution or
resolutions providing for the issue of such series adopted by the board of
directors as hereinafter provided. Subject to the provisions of this Article,
authority is hereby granted to the board of directors to authorize the issue of
one or more series of Preferred Stock and, with respect to each series, to fix
by resolution or resolutions providing for the issue of each such series the
following:
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(i) the number of shares of such series, which may
subsequently be increased or decreased (but not below the number of
shares of such series then outstanding) by resolution of the board of
directors, and the distinctive designation thereof;
(ii)the dividend rate or rates on the shares of such series,
the extent, if any, to which dividends shall cumulate (and, if
cumulative, the date or dates from which dividends shall cumulate), the
dates on which dividends, if declared, shall be payable and any
limitations, restrictions, or conditions on the payment of such
dividends;
(iii) the terms (including the price or prices), if any, upon
which all or any part of the shares of such series may be redeemed, and
any limitations, restrictions, or conditions on such redemption;
(iv)the amounts which the holders of the shares of such series
shall be entitled to receive upon any liquidation, dissolution, or
winding up of the Corporation;
(v) the terms, if any, of any purchase, retirement, or sinking
fund to be provided for the shares of such series;
(vi)the terms, if any, upon which the shares of such series
shall be convertible into or exchangeable for shares of any other
series, class or classes, or other securities, whether or not issued by
the Corporation, and the terms of such conversion or exchange;
(vii) the voting powers, full or limited (not to exceed one
vote per share), if any, of the shares of such series;
(viii) the restrictions, limitations, and conditions, if any,
upon issuance of indebtedness of the Corporation so long as any shares
of such series are outstanding; and
(ix)any other preferences and relative, participating,
optional, or other special rights and qualifications, limitations and
restrictions thereof not inconsistent with law, the provisions of this
Article, or any resolution of the board of directors of the Corporation
pursuant hereto.
All shares of any one series of Preferred Stock shall be identical with
all other shares of the same series, except that shares of any one series issued
at different times may differ as to the dates from which dividends thereon shall
be cumulative.
So long as any shares of any series of the Preferred Stock shall be
outstanding, the resolution of the board of directors establishing such series
shall not be amended so as adversely to affect any of the powers, preferences,
or rights of the holders of the shares of such series, without the affirmative
vote of the holders of at least a majority, or such greater proportion as the
board of directors may set forth in the resolution establishing such series, of
the shares of such series outstanding at the time
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or as of a record date fixed by the board of directors of the Corporation, but
such resolution may be amended with such vote.
(b)(2) Dividend Rights.
(i) The holders of the Preferred Stock of each series shall be
entitled to receive when and as declared by the board of directors of
the Corporation, preferential dividends in cash payable at such rate,
from such date, and on such dividend payment dates and, if cumulative,
cumulative from such date or dates, as may be fixed by the provisions
of this Article or by the resolutions of the board of directors
providing for the issue of such series.
(ii) So long as any of the Preferred Stock is outstanding, no
dividends (other than dividends payable in stock junior to the
Preferred Stock and cash in lieu of fractional shares in connection
with any such dividend) shall be paid or declared in cash or otherwise,
nor shall any other distribution be made, on any stock junior to the
Preferred Stock, unless
(A) there shall be no arrearages in dividends on
Preferred Stock for any past dividend period, and dividends in
full for the current dividend period shall have been paid or
declared on all Preferred Stock (cumulative and
non-cumulative);
(B) the Corporation shall have paid or set aside for
payment all amounts, if any, then or theretofore required to
be paid or set aside for all purchase, retirement, and sinking
funds, if any, for the Preferred Stock of any series; and
(C) the Corporation shall not be in default on any of
its obligations to redeem any of the Preferred Stock.
If the date of any payment or declaration of any dividend or
of making any other distribution referred to in this paragraph (ii)
shall be a dividend payment date for the Preferred Stock, the reference
in this paragraph to "the current dividend period" shall be
inapplicable for all of the purposes hereof.
(iii) So long as any of the Preferred Stock is outstanding, no
shares of any stock junior to the Preferred Stock shall be purchased,
redeemed, or otherwise acquired by the Corporation or by any subsidiary
except in connection with a reclassification or exchange of any stock
junior to the Preferred Stock through the issuance or other stock
junior to the Preferred Stock, or the purchase, redemption, or other
acquisition of any stock junior to the Preferred Stock with proceeds of
a reasonably contemporaneous sale of other stock junior to the
Preferred Stock, nor shall any funds be set aside or made available for
any sinking fund for the purchase, redemption, or other acquisition of
any stock junior to the Preferred Stock, unless
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(A) there shall be no arrearages in dividends on
Preferred Stock for any past dividend period;
(B) The Corporation shall have paid or set aside for
payment all amounts, if any, then or theretofore required to
be paid or set aside for all purchase, retirement, and sinking
funds, if any, for the Preferred Stock of any series, and
(C) The Corporation shall not be in default on any of
its obligations to redeem any of the Preferred Stock.
(iv) Subject to the foregoing provisions and not otherwise,
such dividends (payable in cash, property, or stock junior to the
Preferred Stock) as may be determined by the board of directors of the
Corporation may be declared and paid on the shares of any stock junior
to the Preferred Stock from time to time.
(v) Dividends shall not be declared or paid or set aside for
payment on any series of Preferred Stock unless there shall be no
arrearages in dividends on all other series of Preferred Stock for any
past dividend period and dividends in full for the current dividend
period shall have been paid or declared on all Preferred Stock to the
extent that such dividends are cumulative and any dividends paid or
declared when dividends are not so paid or declared in full shall be
shared ratably by the holders of all series of Preferred Stock in
proportion to such respective arrearages and unpaid and undeclared
current cumulative dividends.
(b)(3) Liquidation Rights.
(i) In the event of any liquidation, dissolution, or winding
up of the Corporation, whether voluntary or involuntary, the holders of
Preferred Stock of each series shall be entitled to receive the full
preferential amount fixed by this Article or by the resolutions of the
Board of Directors of the Corporation providing for the issue of such
series, including any arrearages in dividends thereon to the date fixed
for the payment in liquidation, before any distribution shall be made
to the holders or any stock junior to the preferred Stock. After such
payment in full to the holders of the Preferred Stock, the remaining
assets of the Corporation shall then be distributed exclusively among
the holders of any stock junior to the Preferred Stock, according to
their respective interests.
(ii) If the assets of the Corporation are insufficient to
permit the payment of the full preferential amounts payable to the
holders of the Preferred Stock of the respective series in the event of
a liquidation, dissolution, or winding up, then the assets available
for distribution to holders of the Preferred Stock shall be distributed
ratably to such holders in proportion to the full preferential amounts
payable on the respective shares.
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(iii) A consolidation or merger of the Corporation with or
into one or more other corporations or a sale of all or substantially
all of the assets of the Corporation shall not be deemed to be a
liquidation, dissolution, or winding up, voluntary or involuntary.
(b)(4) Status of Preferred Stock Purchased, Redeemed, or Converted.
Shares of Preferred Stock purchased, redeemed, or converted into or exchanged
for shares of any other class or series, and unissued shares of any series of
Preferred Stock which cease to be designated as to series by reason of a
decrease in the number of shares of such series as herein provided, shall be
deemed to be authorized but unissued shares of Preferred Stock undesignated as
to series.
(b)(5) Restrictions on Certain Corporate Action. Subject to the
provisions of subsection (e)(4) of this Article V, so long as any shares of the
Preferred Stock shall be outstanding, the Corporation shall not, without the
affirmative vote of the holders of at least a majority of the shares of the
Preferred Stock outstanding at the time or as of a record date fixed by the
board of directors:
(i) create or authorize any class of stock ranking prior to or
on a parity with the Preferred Stock with respect to the payment of
dividends or the distribution of assets; or
(ii) amend the Certificate of Incorporation of the Corporation
so as adversely to affect any of the preferences or other rights of the
holders of the Preferred Stock; provided, however, that if any such
amendment would adversely affect any of the preferences or other rights
of the holders of one or more, but less than all, of the series of the
Preferred Stock then outstanding, the affirmative vote of, and only of,
the holders of at least a majority of the shares of all series so
adversely affected, voting as a single class, shall be required.
(c) Preference Stock Provisions.
(c)( 1) Authority of the Board of Directors of the Corporation To Issue
in Series. Preference Stock may be issued from time to time in one or more
series, each such series to have such designations, preferences, and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions as are expressed in this Article and in the resolution or
resolutions providing for the issue of such series adopted by the board of
directors as hereinafter provided. Subject to the provisions of this Article,
authority is hereby granted to the board of directors to authorize the issue of
one or more series of Preference Stock and, with respect to each series, to fix
by resolution or resolutions providing for the issue of each such series the
following:
(i) the number of shares of such series, which may, except as
otherwise provided in any resolution of the board of directors of the
Corporation providing for the issuance of a series of Preferred Stock,
subsequently be increased or decreased (but not below the number of
shares of such series then outstanding) by resolution of the board of
directors, and the distinctive designation thereof;
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(ii) the dividend rate or rates on the shares of such series,
the extent, if any, to which dividends shall cumulate (and, if
cumulative, the date or dates from which dividends shall cumulate), the
dates on which dividends, if declared, shall be payable and any
limitations, restrictions, or conditions on the payment of such
dividends;
(iii) the terms (including the price or prices), if any, upon
which all or any part of the shares of such series may be redeemed, and
any limitations, restrictions, or conditions on such redemption;
(iv) the amounts which the holders of the shares of such
series shall be entitled to receive upon any liquidation, dissolution,
or winding up of the Corporation;
(v) the terms, if any, of any purchase, retirement, or sinking
fund to be provided for the shares of such series;
(vi) the terms, if any, upon which the shares of such series
shall be convertible into or exchangeable for shares of any other
series, class or classes, or other securities, whether or not issued by
the Corporation, and the terms of such conversion or exchange;
(vii) the voting powers, full or limited (not to exceed one
vote per share), if any, of the shares of such series;
(ix) any other preferences and relative, participating,
optional, or other special rights and qualifications, limitations, and
restrictions thereof not inconsistent with law, the provisions of this
Article or any resolution of the board of directors of the Corporation
pursuant hereto.
All shares of any one series of Preference Stock shall be identical
with all other shares of the same series, except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereon shall be cumulative.
So long as any shares of any series of the Preference Stock shall be
outstanding, the resolution of the board of directors establishing such series
shall not be amended so as adversely to affect any of the powers, preferences,
or rights of the holders of the shares of such series, without the affirmative
vote of the holders of at least a majority, or such greater proportion as the
board of directors may set forth in the resolution establishing such series, of
the shares of such series outstanding at the time or as of a record date fixed
by the board of directors of the Corporation, but such resolution may be so
amended with such vote.
(c)(2) Dividend Rights.
(i) Subject to the rights of the holders of the Preferred
Stock and of any other series of Preference Stock, the holders of the
Preference Stock of each series shall be entitled to receive, when and
as declared by the board of directors of the Corporation, preferential
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dividends in cash payable at such rate, from such date, and on such
dividend payment dates and, if cumulative, cumulative from such date or
dates, as may be fixed by the provisions of this Article or by the
resolutions of the board of directors providing for the issue of such
series.
(ii) So long as any of the Preference Stock is outstanding, no
dividends (other than dividends payable in stock junior to the
Preference Stock and cash in lieu of fractional shares in connection
with any such dividend) shall be paid or declared in cash or otherwise,
nor shall any other distribution be made, on any stock junior to the
Preference Stock, unless
(A) there shall be no arrearages in dividends on
Preference Stock for any past dividend period, and dividends
in full for the current dividend period shall have been paid
or declared on all Preference Stock (cumulative and
non-cumulative);
(B) the Corporation shall have paid or set aside for
payment all amounts, if any, then or theretofore required to
be paid or set aside for all purchase, retirement, and sinking
funds, if any, for the Preference Stock of any series; and
(C) the Corporation shall not be in default on any of
its obligations to redeem any of the Preference Stock.
If the date of any payment or declaration of any dividend or
of making any other distribution referred to in this paragraph (ii)
shall be a dividend payment date for the Preference Stock, the
reference in this paragraph to "the current dividend period" shall be
inapplicable for all of the purposes hereof.
(iii) Subject to the foregoing provisions and not otherwise,
such dividends (payable in cash, property, or stock junior to the
Preference Stock) as may be determined by the board of directors of the
Corporation may be declared and paid on the shares of any stock junior
to the Preference Stock from time to time.
(iv) If the resolution of the board of directors establishing
any series of Preference Stock provides that dividends on the shares of
such series shall have priority over the payment of dividends on the
shares of any other series of Preference Stock, dividends on the shares
of such other series of Preference Stock shall not be paid unless
dividends on the series entitled to such priority shall have been paid
in full, including any arrearages which may exist with respect thereto.
Subject to any resolutions of the board of directors establishing a
priority or priorities as aforesaid, dividends shall not be declared or
paid or set aside for payment on any series of Preference Stock unless
there shall be no arrearages in dividends on all other series of
Preference Stock for any past dividend period and dividends in full for
the current dividend period shall have been paid or declared on all
other series of Preference Stock to the extent that
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such dividends are cumulative and any dividends paid or declared when
dividends are not so paid or declared in full shall be shared ratably
by the holders of all series of Preference Stock in proportion to such
respective arrearages and unpaid and undeclared current cumulative
dividends.
(c)(3) Liquidation Rights.
(i) Subject to the rights of the holders of the Preferred
Stock and of any other series of Preference Stock, in the event of any
liquidation, dissolution, or winding up of the Corporation, whether
voluntary or involuntary, the holders of Preference Stock of each
series shall be entitled to receive the full preferential amount fixed
by this Article or by the resolutions of the board of directors of the
Corporation providing for the issue of such series, including any
arrearages in dividends thereon to the date fixed for the payment in
liquidation, before any distribution shall be made to the holders of
any stock junior to the Preference Stock. After such payment in full to
the holders of the Preference Stock, the remaining assets of the
Corporation shall then be distributed exclusively among the holders of
any stock junior to the Preference Stock, according to their respective
interests.
(ii) If the resolution of the board of directors establishing
any series of Preference Stock provides that the full preferential
amount payable in the event of a liquidation, dissolution or winding up
of the Corporation with respect to such series shall be distributed
prior to the distribution of the preferential amount payable with
respect to any other series of Preference Stock, then no such amount
shall be distributed to the holders of the shares of such other series
unless the amount distributable on the series entitled to such priority
has been distributed in full. If the assets of the Corporation are
insufficient to permit the payment of the full preferential amounts
payable to the holders of the Preference Stock of the respective series
in the event of a liquidation, dissolution, or winding up, then the
assets available for distribution to holders of the Preference Stock
shall be distributed first to the holders of any series of Preference
Stock in accordance with any priorities established as aforesaid, and
then ratably to the holders of the remaining series of Preference Stock
in proportion to the full preferential amounts payable on the shares of
such series.
(iii) A consolidation or merger of the Corporation with or
into one or more other corporations or a sale of all or substantially
all of the assets of the Corporation shall not be deemed to be a
liquidation, dissolution, or winding up, voluntary or involuntary.
(c)(4) Status of Preference Stock Purchased, Redeemed or Converted.
Shares of Preference Stock purchased, redeemed or converted into or exchanged
for shares of any other class or series, and unissued shares of any series of
Preference Stock which cease to be designated as to series by reason of a
decrease in the number of shares of such series as herein provided, shall be
deemed to be authorized but unissued shares of Preference Stock undesignated as
to series.
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(c)(5) Restrictions on Certain Corporate Action. Subject to the
provisions of subsection (e)(4) of this Article V, so long as any shares of the
Preference Stock shall be outstanding, the Corporation shall not, without the
affirmative vote of the holders of at least a majority of the shares of the
Preference Stock outstanding at the time or as of a record date fixed by the
board of directors:
(i) create or authorize any class of stock ranking prior to or
on a parity with the Preference Stock with respect to the payment of
dividends or the distribution of assets; or
(ii) amend the Certificate of Incorporation of the Corporation
so as adversely to affect any of the preferences or other rights of the
holders of the Preference Stock, provided, however, that if any such
amendment would adversely affect any of the preferences or other rights
of the holders of one or more, but less than all, of the series of the
Preference Stock then outstanding, the affirmative vote of, and only
of, the holders of at least a majority of the shares of all series so
adversely affected, voting as a single class, shall be required.
(d) Common Stock Provisions.
(d)(1) Dividend Rights. Subject to provisions of law and the
preferences of the Preferred Stock and Preference Stock, the holders of the
Common Stock shall be entitled to receive dividends at such times and in such
amounts as may be determined by the board of directors of the Corporation.
(d)(2) Voting Rights. The holders of the Common Stock shall have one
vote for each share held on each matter submitted to a vote of the stockholders
of the Corporation.
(d)(3) Liquidation Rights. In the event of any liquidation,
dissolution, or winding up of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities of the
Corporation and the preferential amounts to which the holders of the Preferred
Stock and Preference Stock may be entitled, the holders of the Common Stock
shall be entitled to share ratably in the remaining assets of the Corporation.
(e) Other Provisions.
(e)(1) Authority for Issuance of Shares. The board of directors of the
Corporation shall have authority to authorize the issuance, from time to time
without any vote or other action by the stockholders, of any or all shares of
stock of the Corporation of any class at any time authorized, and any securities
convertible into or exchangeable for any such shares, in each case to such
persons and for such consideration and on such terms as the board of directors
from time to time in its discretion lawfully may determine; provided, however,
that the consideration for the issuance of shares of stock of the Corporation
having par value shall not be less than such par value. Shares so issued, for
which the full consideration determined by the board of directors has been paid
to the Corporation, shall
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be fully paid stock, and the holders of such stock shall not be liable for any
further call or assessments thereon.
(e)(2) No Preemptive Rights. Unless otherwise provided in the
resolution of the board of directors providing for the issue of any series of
Preferred Stock or Preference Stock, no holder of shares of any class of the
Corporation or of any security or obligation convertible into, or of any
warrant, option, or right to purchase, subscribe for, or otherwise acquire,
shares of any class of the Corporation, whether now or hereafter authorized,
shall, as such holder, have any preemptive right whatsoever to purchase,
subscribe for, or otherwise acquire, shares of any class of the Corporation,
whether now or hereafter authorized.
(e)(3) Abandonment of Dividends and Distributions. Anything herein
contained into the contrary notwithstanding, any and all right, title, interest,
and claim in and to any dividends declared, or other distributions made, by the
Corporation, whether in cash, stock, or otherwise, which are unclaimed by the
stockholder entitled thereto for a period of six years after the close of
business on the payment date, shall be and be deemed to be extinguished and
abandoned; and such unclaimed dividends or other distributions in the possession
of the Corporation, its transfer agents, or other agents or depositories, shall
at such time become the absolute property of the Corporation, free and clear of
any and all claims of any persons whatsoever.
(e)(4) Certain Amendments. Except as otherwise provided in this Article
or resolutions of the board of directors providing for the issue of any series
of Preferred Stock or Preference Stock, the number of authorized shares of any
class or classes of stock of the Corporation may be increased or decreased (but
not below the number of shares of such series then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, voting as a single class.
ARTICLE VI
LIMITATION ON LIABILITY
A director of the Corporation shall have no personal liability to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (a) for any breach of a director's duty of loyalty to
the Corporation or its stockholders, (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (c) under
section 174 of the General Corporation Law of Delaware as it may from time to
time be amended or any successor provision thereto, or (d) for any transaction
from which a director derived an improper personal benefit.
ARTICLE VII
TAKEOVER STATUTE ELECTION
The Corporation hereby expressly elects not to be governed by the
provisions of section 203 of the General Corporation Law of the state of
Delaware, which provision shall not apply to the Corporation.
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ARTICLE VIII
INDEMNIFICATION
The Corporation should have power to 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 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 to the full
extent permitted by the General Corporation Law of the state of Delaware on the
date hereof and as the same may be amended from time to time.
ARTICLE IX
REGISTERED OFFICE AND REGISTERED AGENT
The name and address of the Corporation's registered agent in the state
of Delaware is The Corporation Trust Company, 1209 Orange Street, in the city of
Wilmington, county of New Castle, Delaware. Either the registered office or the
registered agent may be changed in the manner provided by law.
ARTICLE X
AMENDMENT
The Corporation reserves the right to amend, alter, change, or repeal
all or any portion of the provisions contained in its Certificate of
Incorporation from time to time in accordance with the laws of the state of
Delaware, and, except as otherwise set forth herein, all rights conferred on
stockholders herein are granted subject to this reservation.
ARTICLE XI
ADOPTION AND AMENDMENT OF BYLAWS
The initial bylaws of the Corporation shall be adopted by the board of
directors. The power to alter, amend, or repeal the bylaws or adopt new bylaws
shall be vested in the board of directors, but the stockholders of the
Corporation may also alter, amend, or repeal the bylaws or adopt new bylaws. The
bylaws may contain any provisions for the regulation or management of the
affairs of the Corporation not inconsistent with the laws of the state or
Delaware now or hereafter existing.
ARTICLE XII
DIRECTORS
The governing board of the Corporation shall be known as the board of
directors. The number of directors comprising the board of directors
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shall be fixed and may be increased or decreased from time to time in the manner
provided in the bylaws of the Corporation, except that at no time shall there be
less than one nor more than eleven directors. The initial board of directors
shall be appointed by the sole incorporator following formation of the
Corporation as provided in section 108 of the General Corporation Law of
Delaware.
ARTICLE XIII
INCORPORATORS
The name and mailing address of the sole incorporator signing this
certificate of incorporation is as follows:
Name Address
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Mark E. Lehman 136 South Main Street, Suite 721
Salt Lake City, Utah 84101
The undersigned, being the sole incorporator herein before named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the state of Delaware, makes this certificate, hereby declaring and certifying
that this is his act and deed and that the facts herein stated are true, and
accordingly has hereunto set his hand this 30th day of August, 1989.
/s/ MARK E. LEHMAN
---------------------------------
Mark E. Lehman
STATE OF UTAH )
:ss
COUNTY OF SALT LAKE )
I, a notary public, hereby certify that on the 30th day of August,
1989, personally appeared before me Mark E. Lehman, who being by me first duly
sworn, declared that he signed the foregoing instrument as his own act and deed
and that the facts stated therein are true.
WITNESS MY HAND AND OFFICIAL SEAL.
/s/ [Signature Illegible]
---------------------------------
N O T A R Y P U B L I C
Residing in Salt Lake City, Utah
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My Commission Expires:
10-25-91
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