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Exhibit 2.1
CERTIFICATE OF INCORPORATION
OF
ENEFEL 1001, INC.
(A Nevada Corporation)
FIRST. The name of this corporation is ENEFEL 1001, Inc.
SECOND. The Corporation's REGISTERED OFFICE in the State of Nevada
is located at 2533 N. Carson Street, Carson City, Nevada 89706. The
Corporation's RESIDENT AGENT at this address is Laughlin Associates, Inc.
THIRD. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Nevada. The Corporation may conduct all or any part of its
business, and may hold, purchase, mortgage, lease and convey real and personal
property, anywhere in the world. The Corporation shall have perpetual duration.
FOURTH. The name and mailing address of the INCORPORATOR is:
NAME MAILING ADDRESS
Mark Cooper 3773 Cherry Creek North Drive, Suite 615
Denver, Colorado 80209
Upon the filing of this Certificate of Incorporation the powers of
the Incorporator shall terminate. The name and address of the person who is to
serve as the one director until the first annual meeting of shareholders or
until his successor is duly elected and has qualified is:
NAME MAILING ADDRESS
J. R. Nelson 6521 W. Calhoun Place
Littleton, Colorado 80123
{CAPITAL STOCK}
FIFTH. The aggregate number of shares of capital stock of all
classes which the Corporation shall have authority to issue is TWENTY-ONE
MILLION (21,000,000), of which TWENTY MILLION (20,000,000) shares having a par
value of $.001 per share shall be of a class designated "COMMON STOCK" (or
"COMMON SHARES") and ONE MILLION (1,000,000) shares having a par value of $.001
per share 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 CLASS AND 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, the designation of such classes and series and the powers, preferences
and rights of the shares of such classes and series,
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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 class or 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 of the holder of the shares or of another
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 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 Nevada.
(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 FIFTH 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
dividend period shall have been paid or declared, and
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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 class or 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
FIFTH. 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 FIFTH, 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
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Common Share shall be of the same class, without any designation, preference or
relative, participating, optional or other special rights, and 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.
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 General Corporation Law of Nevada 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 shares without par value 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.
(e) DENIAL OF PREEMPTIVE RIGHTS. No holder of any shares of the
Corporation shall be entitled as a matter of right to subscribe for or purchase
any part of any new or additional issue of stock of any class or of securities
convertible into or exchangeable for stock of any class, whether now or
hereafter authorized or whether issued for money, for a consideration other than
money, or by way of dividend.
(f) CONVERTIBILITY. Common Shares or other shares of any class or
series, and notes, debentures, bonds and other debt instruments issued by the
Corporation or any affiliated company, 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
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or resolutions providing for the issuance of such convertible or exchangeable
shares adopted by the Board of Directors.
(g) 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 General Corporation Law of
Nevada, 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.
{VOTING OF SHAREHOLDERS}
SIXTH. 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
this Charter, 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 this Charter, it shall mean the total number of voting
shares out 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 which commenced with a quorum shall require
the affirmative vote only of a majority of the votes cast, except where this
Charter 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 Nevada General
Corporation Law 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 SIXTH 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. Cumulative voting shall
not be allowed in the election of directors.
(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 shareholder may be
taken by written consent, in lieu of a meeting and without prior notice or vote,
by the holders of a majority of the total voting power, except where a higher
proportion of the total voting power is expressly required herein to authorize
such action. 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 of shareholders in lieu of a meeting,
shall so far as permitted by law be as valid and as binding as though ratified
by every shareholder of the Corporation.
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{CONCERNING SHAREHOLDERS, DIRECTORS AND OFFICERS}
SEVENTH. 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 one (1) Directors. Directors shall be elected by plurality vote and
need not be elected by written ballot, except as provided 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, only upon the affirmative vote of the
holders of not less than two-thirds (2/3) of the total voting power, without
considering the vote of the director or directors sought to be removed.
As used herein, "CAUSE" for the removal of a director shall be
deemed to exist of (A) there has been a finding by not less than 2/3 of the
entire Board of Directors that cause exists and the directors have recommended
removal to the shareholders, or (B) an other cause defined by law.
(c) REMOVAL OF OFFICERS AND EMPLOYEES. Unless the Bylaws otherwise
provide, any officer or employee of the Corporation may be removed at any time
with or without cause by the Board of Directors 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}
EIGHTH. The initial Bylaws of the Corporation shall 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 contain any provisions for the regulation and management of the
affairs of the Corporation not inconsistent with law or this Charter.
{INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS}
NINTH. 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
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in the right of the Corporation), 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 attorney's 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 NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation 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. No indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged by a court of competent
jurisdiction after exhaustion of all appeals therefrom to be liable to the
Corporation or for amounts paid in settlement to the Corporation unless and only
to the extent that the court in which such action or suit was brought or other
court of competent jurisdiction 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 shall deem proper.
(c) INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
PARTY. Notwithstanding the other provisions of this Article NINTH, 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 NINTH, or in
defense of any claim, issue or matter therein, he shall 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. Any indemnification
under Sections (a) and (b) of this Article NINTH (unless ordered by a court)
shall be paid by the Corporation unless a determination is made (i) by a
disinterested majority of the Board of Directors who were not parties to such
action, suit or proceeding, or (ii) if such disinterested majority of the Board
of Directors so directs or cannot be obtained, by independent legal counsel in a
written opinion, or (iii) by the shareholders, that indemnification of the
director or officer is not proper in the circumstances because he has not met
the applicable standard of conduct set forth in Sections (a) and (b) of this
Article NINTH.
(e) ADVANCES OF COSTS, CHARGES AND EXPENSES. Costs, charges and
expenses (including attorney's fees) incurred by a person referred to in
Sections (a) or (b) of this Article NINTH 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 upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it
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shall ultimately be determined that such director or officer is not entitled to
be indemnified by the Corporation as authorized in this Article, accompanied by
evidence satisfactory to the Board of Directors of ability to make such
repayment. Such costs, charges and expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the majority of
the Directors deems appropriate. The majority of the Directors 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 NINTH, 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 NINTH 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 NINTH, 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 NINTH, 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 NINTH, the
person to be indemnified shall have unreasonably failed to enter into a
settlement 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 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 estate, 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 NINTH is in effect. Any repeal or modification of this
Article NINTH or any repeal or modification of relevant provisions of the
General Corporation Law of Nevada 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
NINTH 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:
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(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, expect 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
General Corporation Law of Nevada, 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 NINTH; provided, however, that such insurance is
available on acceptable terms, which determination shall be made by a vote of a
majority of the Directors.
(k) SAVINGS CLAUSE. If this Article NINTH 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, 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 NINTH that shall not have been
invalidated and to the full extent permitted by applicable law.
(l) AMENDMENT. No amendment, termination or repeal of this Article
NINTH 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 General Corporation Law of
Nevada 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 indemnify such persons to the fullest
extent permitted by the General Corporation Law of Nevada, as so amended.
(n) RESTRICTION. Notwithstanding any other provision hereof
whatsoever, no person shall be indemnified under this Article NINTH 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 (iii) for any other cause
prohibited by applicable state or federal law, unless a court determines
otherwise.
9
<PAGE>
{EXCLUSION OF DIRECTOR LIABILITY}
TENTH. As authorized by Section 78.037(1) of the General
Corporation Law of Nevada, no director or officer 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 or officer, except for
liability for (a) any acts or omissions which involve intentional misconduct,
fraud or a knowing violation of law, or (b) any payment of dividends in
violation of Section 78.300 of the General Corporation Law of Nevada, as it now
exists or may hereafter be amended. This Article TENTH shall apply to a person
who has ceased to be a director or officer of the Corporation with respect to
any breach of fiduciary duty which occurred when such person was serving as a
director or officer. This Article TENTH shall not be construed to limit or
modify in any way any director's or officer's right to indemnification or other
right whatsoever under this Charter, the Corporation's Bylaws or the General
Corporation Law of Nevada.
If the General Corporation Law of Nevada hereafter is amended to
authorize the further elimination or limitation of the liability of directors or
officers generally, then the liability of the Corporation's directors and
officers, in addition to the limitation on personal liability provided herein,
shall be limited to the fullest extent permitted by the General Corporation Law
of Nevada as so amended. Any repeal or modification of this Article TENTH by the
shareholders shall be prospective only and shall not adversely affect any
limitation on the personal liability of any director or officer existing at the
time of such repeal or modification. The affirmative vote of at least a majority
of the total voting power shall be required to amend or 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 this Charter, 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 this Charter, except such
provisions which expressly require a higher proportion of the votes case or
require a proportion of the total voting power. The affirmative vote of a
majority of the total voting power is necessary to repeal this Charter in its
entirety and adopt a new charter in its stead.
{CERTAIN POWERS RESERVED TO DIRECTORS}
TWELFTH. 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 containing such terms, provisions and conditions as the
Board of Directors deems necessary or adivsable 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, 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 or 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 indetedness of the Corporation; and to create, issue and deliver
additional amounts or series of obligations under the terms of any such
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 TWELFTH.
10
<PAGE>
{INAPPLICABILITY OF CONTROL SHARE ACQUISITION STATUTE}
THIRTEENTH. The Corporation expressly elects not to be governed by
Sections 78.378 through 78.3793 of the General Corporation Law of Nevada
(concerning acquisitions of controlling interest in corporations), as it now
exists or may hereafter be amended, or any successor statute. 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 THIRTEENTH.
IN WITNESS WHEREOF, the undersigned, being the Incorporator named
above, for the purpose of forming a corporation pursuant to the General
Corporation Law of Nevada, does hereby make and file this Certificate of
Incorporation for ENEFEL 1001, Inc.
DATED: November 17, 1995 INCORPORATOR:
X.................................
MARK COOPER
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
On this day the 17th day of November, 1995, before me, John D.
Brasher Jr., the above signed incorporated, personally appeared Mark Cooper,
known to me (or satisfactorily proven) to be the person whose name is subscribed
to the within instrument and acknowledged that he executed the same for the
purposes therein contained. In witness whereof, I hereunto set my hand and
official seal.
(SEAL)
--------------------
Notary Public
11
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
PROPAINT SYSTEMS, INC.
(A Nevada Corporation)
PROPAINT SYSTEMS, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of Nevada, DOES HEREBY CERTIFY THAT:
A. The Board of Directors of this corporation by the unanimous written
consent of its members, filed with the minutes of the Board, duly adopted a
resolution setting forth a proposed amendment to the Certificate of
Incorporation of the corporation to amend the first paragraph of Article FIFTH
in order to increase the number of common shares and preferred shares authorized
issuable, declaring such amendments to be advisable and directing that the
proposal be placed before the shareholders of the corporation for consideration
thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that Article FIFTH of the Certificate of Incorporation of
this corporation be amended to provide as follows:
"FIRST. The name of this corporation is PROPAINT SYSTEMS, INC.
FIFTH. The aggregate number of shares of capital stock of all classes
which the Corporation shall have authority to issue is ONE HUNDRED TWENTY-FIVE
MILLION (125,000,000), of which ONE HUNDRED MILLION (100,000,000) shares having
a par value of $.001 per share shall be of a class designated "COMMON STOCK" (or
"COMMON SHARES") and TWENTY-FIVE MILLION (25,000,000) shares having a par value
of $.001 per share 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: "
B. Other than the amendment to the first paragraph of Article FIFTH,
there are no amendments to the Certificate of Incorporation.
C. Pursuant to resolution of the corporation's Board of Directors, the
foregoing Certificate of Amendment was duly approved by affirmative vote of the
holders of a majority of the Corporation'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 General Corporation Law of
Nevada and the existing Certificate of Incorporation and bylaws of the
Corporation.
D. This amendment was duly adopted in accordance with the provisions of
Section 78.390 of the General Corporation Law of Nevada.
IN WITNESS WHEREOF, PROPAINT SYSTEMS, INC. has caused this Certificate
of Amendment to be
<PAGE>
signed by its Vice President, and attested by its Secretary,
as of the date below.
DATED: June 5, 1998 PROPAINT SYSTEMS, INC.
By______________________________________
JOHN D. BRASHER JR., VICE PRESIDENT
By _________________________________
ELISABETH M. CROSSE, SECRETARY
<PAGE>
ACKNOWLEDGMENTS
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 PROPAINT SYSTEMS, 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 5,
1998.
_______________________________________________ My
NOTARY PUBLIC Commission
Expires__________________
(SEAL)
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 PROPAINT SYSTEMS, 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 5,
1998.
_____________________________________________________ My
NOTARY PUBLIC Commission
Expires______________
(SEAL)
<PAGE>
--------------------------
P R O P A I N T S Y S T E M S, I N C.
--------------------------
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
PROPAINT SYSTEMS, INC.
PROPAINT SYSTEMS, INC., a corporation organized on December 18, 1995,
and existing under and by virtue of the Nevada General Corporation Law, does
hereby certify that:
A. The name of the corporation is PROPAINT SYSTEMS, INC.
B. Under authority of Section 78.195 of the Nevada General Corporation
Law, Article FIFTH, Part I of the Certificate of Amendment to the Corporation's
Certificate of Incorporation expressly vests 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 16, 1998, pursuant to Section
78.315 of the Nevada General Corporation Law, duly adopted a resolution setting
forth an amendment to the Certificate of Incorporation of the Corporation
designating and establishing a series of preferred stock consisting of 5,000,000
preferred shares known as the "SERIES A, VOTING CONVERTIBLE PREFERRED STOCK".
D. The Corporation submits this Certificate of Amendment to its
Certificate of Incorporation for the purpose of establishing and designating
such series of preferred stock as required by Section 78.1955 of the Nevada
General Corporation Law.
E. A copy of the "Resolution of the Board of Directors Establishing a
Series of Shares of Preferred Stock of PROPAINT SYSTEMS, INC." dated as of June
16, 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 Nevada Secretary of State.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment as of June 17, 1998.
PROPAINT SYSTEMS, INC.
(SEAL)
By___________________________________
JOHN D. BRASHER JR., VICE PRESIDENT
<PAGE>
X_____________________________________
ELISABETH M. CROSSE, ASST. SECRETARY
ACKNOWLEDGEMENT
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 PROPAINT SYSTEMS, INC., a
Nevada 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 17, 1998.
X_______________________________________ My Commission Expires:_______________
NOTARY PUBLIC
(SEAL)
EXHIBIT A
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
PROPAINT SYSTEMS, INC.
(A Nevada Corporation)
PROPAINT SYSTEMS, INC., a corporation organized on December 18, 1995,
and existing under and by virtue of the General Corporation Law of Nevada, DOES
HEREBY CERTIFY THAT:
A. The shareholders of the Corporation duly adopted a resolution
setting forth a proposed amendment to the Certificate of Incorporation of the
corporation to change the name of the corporation from PROPAINT SYSTEMS, INC. to
APC TELECOMMUNICATIONS, INC., declaring such amendment to be advisable and
directing that the proposal be placed before the shareholders of the corporation
for consideration thereof. The resolution setting forth the proposed amendment
is as follows:
RESOLVED, that Article FIRST of the Certificate of Incorporation of
this corporation be amended to provide as follows:
"FIRST. The name of this corporation is APC TELECOMMUNICATIONS, INC."
B. Other than the change of the corporation's name, there are no
amendments to the Certificate of Incorporation.
C. The foregoing Certificate of Amendment was on June 17, 1998, duly
approved by means of written consent in lieu of a meeting of the holders of a
majority of the Corporation'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 General Corporation Law of Nevada and the
existing Certificate of Incorporation and bylaws of the Corporation.
D. This amendment was duly adopted in accordance with the provisions of
Section 78.390 of the General Corporation Law of Nevada.
IN WITNESS WHEREOF, PROPAINT SYSTEMS, INC. has caused this Certificate
of Amendment to be signed by its Vice President, and attested by its Assistant
Secretary, as of the date below.
DATED: June 17, 1998
PROPAINT SYSTEMS, INC.
ATTEST:
By_______________________________________
JOHN D. BRASHER JR., VICE PRESIDENT
By__________________________________________
ELISABETH M. CROSSE, ASSISTANT SECRETARY
<PAGE>
(SEAL)
ACKNOWLEDGMENT
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 PROPAINT SYSTEMS, 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 17,
1998.
_______________________________________________ My
NOTARY PUBLIC Commission
Expires__________________
(SEAL)
ACKNOWLEDGMENT
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 Assistant Secretary of PROPAINT SYSTEMS, 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 17,
1998.
_______________________________________________ My
NOTARY PUBLIC Commission
Expires__________________
(SEAL)
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
APC TELECOMMUNICATIONS, INC.
(A Nevada Corporation)
APC TELECOMMUNICATIONS, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of Nevada, DOES HEREBY
CERTIFY THAT:
A. The Board of Directors of this corporation by the unanimous written
consent of its members, filed with the minutes of the Board, duly adopted a
resolution setting forth a proposed amendment to the Certificate of
Incorporation of the corporation to change the name of the corporation from APC
TELECOMMUNICATIONS, INC. to INNOFONE.COM, INCORPORATED, declaring such amendment
to be advisable and directing that the proposal be placed before the
shareholders of the corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that Article FIRST of the Certificate of Incorporation of
this corporation be amended to provide as follows:
"FIRST. The name of this corporation is INNOFONE.COM, INCORPORATED."
B. Other than the change of the corporation's name, there are no
amendments to the Certificate of Incorporation.
C. Pursuant to resolution of the corporation's Board of Directors, the
foregoing Certificate of Amendment was duly approved by affirmative vote of the
holders of a majority of the Corporation's 9,885,000 shares of common stock
outstanding and entitled to vote and the holders of a majority of the
Corporation's 5,000,000 shares of Series A, Voting Convertible Preferred Stock
outstanding and entitled to vote on the proposed amendment, and therefore
sufficient for approval, all in accordance with the General Corporation Law of
Nevada and the existing Certificate of Incorporation and bylaws of the
Corporation.
D. This amendment was duly adopted in accordance with the provisions of
Section 78.390 of the General Corporation Law of Nevada.
IN WITNESS WHEREOF, APC TELECOMMUNICATIONS, INC. has caused this
Certificate of Amendment to be signed by its President, and attested by its
Assistant Secretary, as of the date below.
DATED: March 23, 1999 APC TELECOMMUNICATIONS, INC.
By _______________________________
LARRY HUNT, PRESIDENT
By ___________________________________________
JOHN D. BRASHER JR., ASSISTANT SECRETARY
<PAGE>
ACKNOWLEDGMENTS
STATE OF ONTARIO )
) ss.
COUNTY OF YORK REGION )
I HEREBY CERTIFY that before me, a Notary Public duly commissioned and
qualified in and for the above jurisdiction, personally came and appeared Larry
Hunt, the President and Chief Executive Officer of APC TELECOMMUNICATIONS, 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 March 23,
1999.
___________________________________________ My
NOTARY PUBLIC Commission
Expires__________________
(SEAL)
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 Assistant Secretary of APC TELECOMMUNICATIONS, 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 March 23,
1999.
___________________________________________ My
NOTARY PUBLIC Commission
Expires__________________
(SEAL)
