Exhibit 3.01
ARTICLES OF INCORPORATION
OF
HALEAKALA ENTERPRISES, INC.
The undersigned, who, if a natural person, is eighteen years of age or
older, hereby establishes a corporation pursuant to the Colorado Business
Corporation Act as amended and adopts the following Articles of Incorporation:
FIRST: The name of the corporation is HALEAKALA ENTERPRISES, INC.
SECOND: The corporation shall have and may exercise all of the rights,
powers and privileges now or hereafter conferred upon corporations organized
under the laws of Colorado. In addition, the corporation may do everything
necessary, suitable or proper for the accomplishment of any of its corporate
purposes. The corporation may conduct part or all of its business in any part of
Colorado, the United States or the world and may hold, purchase, mortgage, lease
and convey real and personal property in any of such places.
THIRD: (a) The aggregate number of common shares which the corporation
shall have authority to issue is 25,000,000 shares of Common Stock. The shares
of this class of Common Stock shall have unlimited voting rights and shall
constitute the sole voting group of the corporation, except to the extent any
additional voting group or groups may hereafter be established in accordance
with the Colorado Business Corporation Act. The shares of this class shall also
be entitled to receive the net assets of the corporation upon dissolution.
(b) Each shareholder of record shall have one vote for each share of stock
standing in his name on the books of the corporation and entitled to vote,
except that in the election of directors each shareholder shall have as many
votes for each share held by him as there are directors to be elected and for
whose election the shareholder has a right to vote. Cumulative voting shall not
be permitted in the election of directors or otherwise. Preemptive rights to
purchase additional shares of stock are denied.
(c) Unless otherwise ordered by a court of competent jurisdiction, at all
meetings of shareholders one-third of the shares of a voting group entitled to
vote at such meeting, represented in person or by proxy, shall constitute a
quorum of that voting group. Unless otherwise required by law, a majority vote
of those shareholders represented in person or by proxy will be sufficient to
take any corporate action.
(d) The corporation shall have the authority to issue 10,000,000 shares of
Preferred Stock, which may be issued in one or more series at the discretion of
the board of directors. In establishing a series, the board of directors shall
give to it a distinctive designation so as to distinguish it from the shares of
all other series and classes, shall fix the number of shares in such series, and
the preferences, rights and restrictions thereof. All shares of any one series
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shall be alike in every particular except as otherwise provided by these
Articles of Incorporation or the Colorado Business Corporation Code.
(1) Dividends. Dividends in cash, property or shares shall be paid
upon the Preferred Stock for any year on a cumulative or noncumulative basis as
determined by a resolution of the board of directors prior to the issuance of
such Preferred Stock, to the extent earned surplus for each such year is
available, in an amount as determined by a resolution of the board of directors.
Such Preferred Stock dividends shall be paid pro rata to holders of Preferred
Stock as determined by a resolution of the board of directors prior to the
issuance of such Preferred Stock. No other dividend shall be paid on the
Preferred Stock.
Dividends in cash, property or shares of the corporation may be paid
upon the Common Stock, as and when declared by the board of directors, out of
funds of the corporation to the extent and in the manner permitted by law,
except that no Common Stock dividend shall be paid for any year unless the
holders of Preferred Stock, if any, shall receive the maximum allowable
Preferred Stock dividend for such year.
(2) Distribution in Liquidation. Upon any liquidation, dissolution or
winding up of the corporation, and after paying or adequately providing for the
payment of all its obligations, the remainder of the assets of the corporation
shall be distributed, either in cash or in kind, first pro rata to the holders
of the Preferred Stock until an amount to be determined by a resolution of the
board of directors prior to issuance of such Preferred Stock has been
distributed per share, and, then, the remainder pro rata to the holders of the
Common Stock.
(3) Redemption. The Preferred Stock may be redeemed in whole or in
part as determined by a resolution of the board of directors prior to the
issuance of such Preferred Stock, upon prior notice to the holders of record of
the Preferred Stock, published, mailed and given in such manner and form and on
such other terms and conditions as may be prescribed by the Bylaws or by
resolution of the board of directors, by payment in cash or Common Stock for
each share of the Preferred Stock to be redeemed, as determined by a resolution
of the board of directors prior to the issuance of such Preferred Stock. Common
Stock used to redeem Preferred Stock shall be valued as determined by a
resolution of the board of directors prior to the issuance of such Preferred
Stock. Any rights to or arising from fractional shares shall be treated as
rights to or arising from one share. No such purchase or retirement shall be
made if the capital of the corporation would be impaired thereby.
FOURTH: The number of directors of the corporation shall be fixed by the
bylaws, or if the bylaws fail to fix such a number, then by resolution adopted
from time to time by the board of directors, provided that the number of
directors shall not be less than one nor more than nine. One director shall
constitute the initial board of directors. The following persons are elected to
serve as the corporation's initial directors until the first annual meeting of
shareholders or until their successors are duly elected and qualified:
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Name Address
Earnest Mathis, Jr. 26 West Dry Creek Circle, Suite 600
Littleton, Colorado 80120
FIFTH: The street address of the initial registered office of the
corporation is 26 West Dry Creek Circle, Suite 600, Littleton, Colorado 80120.
The name of the initial registered agent of the corporation at such address is
Earnest Mathis, Jr.
SIXTH: The address of the initial principal office of the corporation is 26
West Dry Creek Circle,
Suite 600, Littleton, Colorado 80120.
SEVENTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation, and the same are
in furtherance of and not in limitation or exclusion of the powers conferred by
law.
(a) Conflicting Interest Transactions. As used in this paragraph,
"conflicting interest transaction" means any of the following: (i) a loan or
other assistance by the corporation to a director of the corporation or to an
entity in which a director of the corporation is a director or officer or has a
financial interest; (ii) a guaranty by the corporation of an obligation of a
director of the corporation or of an obligation of an entity in which a director
of the corporation is a director or officer or has a financial interest; or
(iii) a contract or transaction between the corporation and a director of the
corporation or between the corporation and an entity in which a director of the
corporation is a director or officer or has a financial interest. No conflicting
interest transaction shall be void or voidable, be enjoined, be set aside, or
give rise to an award of damages or other sanctions in a proceeding by a
shareholder or by or in the right of the corporation, solely because the
conflicting interest transaction involves a director of the corporation or an
entity in which a director of the corporation is a director or officer or has a
financial interest, or solely because the director is present at or participates
in the meeting of the corporation's board of directors or of the committee of
the board of directors which authorizes, approves or ratifies a conflicting
interest transaction, or solely because the director's vote is counted for such
purpose if: (A) the material facts as to the director's relationship or interest
and as to the conflicting interest transaction are disclosed or are known to the
board of directors or the committee, and the board of directors or committee in
good faith authorizes, approves or ratifies the conflicting interest transaction
by the affirmative vote of a majority of the disinterested directors, even
though the disinterested directors are less than a quorum; or (B) the material
facts as to the director's relationship or interest and as to the conflicting
interest transaction are disclosed or are known to the shareholders entitled to
vote thereon, and the conflicting interest transaction is specifically
authorized, approved or ratified in good faith by a vote of the shareholders; or
(C) a conflicting interest transaction is fair as to the corporation as of the
time it is authorized, approved or ratified by the board of directors, a
committee thereof, or the shareholders. Common or interested directors may be
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counted in determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes, approves or ratifies the
conflicting interest transaction.
(b) Loans and Guaranties for the Benefit of Directors. Neither the board of
directors nor any committee thereof shall authorize a loan by the corporation to
a director of the corporation or to an entity in which a director of the
corporation is a director or officer or has a financial interest, or a guaranty
by the corporation of an obligation of a director of the corporation or of an
obligation of an entity in which a director of the corporation is a director or
officer or has a financial interest, until at least ten days after written
notice of the proposed authorization of the loan or guaranty has been given to
the shareholders who would be entitled to vote thereon if the issue of the loan
or guaranty were submitted to a vote of the shareholders. The requirements of
this paragraph (b) are in addition to, and not in substitution for, the
provisions of paragraph (a) of Article SEVENTH.
(c) Indemnification. The corporation shall indemnify, to the maximum extent
permitted by law, any person who is or was a director, officer, agent, fiduciary
or employee of the corporation against any claim, liability or expense arising
against or incurred by such person made party to a proceeding because he is or
was a director, officer, agent, fiduciary or employee of the corporation or
because he is or was serving another entity or employee benefit plan as a
director, officer, partner, trustee, employee, fiduciary or agent at the
corporation's request. The corporation shall further have the authority to the
maximum extent permitted by law to purchase and maintain insurance providing
such indemnification.
(d) Limitation on Director's Liability. No director of this corporation
shall have any personal liability for monetary damages to the corporation or its
shareholders for breach of his fiduciary duty as a director, except that this
provision shall not eliminate or limit the personal liability of a director to
the corporation or its shareholders for monetary damages for: (i) any breach of
the director's duty of loyalty to the corporation or its shareholders; (ii) acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) voting for or assenting to a distribution in
violation of Colorado Revised Statutes ss. 7-106-401 or the articles of
incorporation if it is established that the director did not perform his duties
in compliance with Colorado Revised Statutes ss. 7-108-401, provided that the
personal liability of a director in this circumstance shall be limited to the
amount of the distribution which exceeds what could have been distributed
without violation of Colorado Revised Statutes ss. 7-106-401 or the articles of
incorporation; or (iv) any transaction from which the director directly or
indirectly derives an improper personal benefit. Nothing contained herein will
be construed to deprive any director of his right to all defenses ordinarily
available to a director nor will anything herein be construed to deprive any
director of any right he may have for contribution from any other director or
other person.
(e) Negation of Equitable Interests in Shares or Rights. Unless a person is
recognized as a shareholder through procedures established by the corporation
pursuant to Colorado Revised Statutes ss. 7-107-204 or any similar law, the
corporation shall be entitled to treat the registered holder of any shares of
the corporation as the owner thereof for all purposes permitted by the Colorado
Business Corporation Act, including without limitation all rights deriving from
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such shares, and the corporation shall not be bound to recognize any equitable
or other claim to, or interest in, such shares or rights deriving from such
shares on the part of any other person including without limitation, a
purchaser, assignee or transferee of such shares, unless and until such other
person becomes the registered holder of such shares or is recognized as such,
whether or not the corporation shall have either actual or constructive notice
of the claimed interest of such other person. By way of example and not of
limitation, until such other person has become the registered holder of such
shares or is recognized pursuant to Colorado Revised Statutes ss. 7-107-204 or
any similar applicable law, he shall not be entitled: (i) to receive notice of
the meetings of the shareholders; (ii) to vote at such meetings; (iii) to
examine a list of the shareholders; (iv) to be paid dividends or other
distributions payable to shareholders; or (v) to own, enjoy and exercise any
other rights deriving from such shares against the corporation. Nothing
contained herein will be construed to deprive any beneficial shareholder, as
defined in Colorado Revised Statutes ss. 7-113-101(1), of any right he may have
pursuant to Article 113 of the Colorado Business Corporation Act or any
subsequent law.
(f) Merger With or Acquisition of Another Entity. Inasmuch as the
corporation has been formed to merge with or to acquire another business entity,
it shall not be necessary for the corporation to obtain shareholder approval for
such a transaction. Any such determination shall be at the discretion of the
corporation's board of directors.
EIGHTH: The name and address of the incorporator is:
Earnest Mathis, Jr.
26 West Dry Creek Circle, Suite 600
Littleton, Colorado 80120
DATED the 27th day of November, 1996.
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Incorporator
Earnest Mathis, Jr. hereby consents to the appointment as the initial
registered agent for the Corporation.
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Initial Registered Agent
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