ARTICLES OF INCORPORATION
OF
MERCURY CAPITAL CORP.
KNOW ALL MEN BY THESE PRESENTS: That the undersigned incorporator, being
a natural person of the age of eighteen years or more, and acting as
incorporator of this corporation under the Colorado Business Corporation Act,
does hereby adopt these Articles of Incorporation:
ARTICLE I
NAME
The name of the Corporation shall be: Mercury Capital Corp.
ARTICLE II
PRINCIPAL STREET ADDRESS
The principal street address of the Corporation shall be: 16178 East
Prentice Place, Aurora, Colorado 80015.
ARTICLE III
PERIOD OF DURATION
The Corporation shall exist in perpetuity, from and after the date of
filing these Articles of Incorporation with the Secretary of State of the
State of Colorado unless dissolved according to law.
ARTICLE IV
CAPITAL STOCK
The aggregate number of shares which this Corporation shall have
authority to issue is One Hundred Million (100,000,000) shares of no par value
each, which shares shall be designated "Common Stock"; and Five Million
(5,000,000) shares of no par value each, which shares shall be designated
"Preferred Stock" and 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 shall be alike in every particular except as
otherwise provided by these Articles of Incorporation or the Colorado Corpora
tion 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 in any amount not less than nor more than the rate 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 resolu
tion 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.
If less than all the outstanding shares are to be redeemed, such
redemption may be made by lot or pro rata as may be prescribed by resolution
of the Board of Directors; provided, however, that the Board of Directors may
alternatively invite from shareholders offers to the Corporation of Preferred
Stock at less than an amount to be determined by a resolution of the Board of
Directors prior to issuance of such Preferred Stock, and when such offers are
invited, the Board of Directors shall then be required to buy at the lowest
price or prices offered, up to the amount to be purchased.
From and after the date fixed in any such notice as the date of
redemption (unless default shall be made by the Corporation in the payment of
the redemption price), all dividends on the Preferred Stock thereby called for
redemption shall cease to accrue and all rights of the holders thereof as
stockholders of the Corporation, except the right to receive the redemption
price, shall cease and terminate.
Any purchase by the Corporation of the shares of its Preferred Stock
shall not be made at prices in excess of said redemption price.
4. Voting Rights; Cumulative Voting. Each outstanding share of Common
Stock shall be entitled to one vote and each fractional share of Common Stock
shall be entitled to a corresponding fractional vote on each matter submitted
to a vote of shareholders. A majority of the shares of Common Stock entitled
to vote, represented in person or by proxy, shall constitute a quorum at a
meeting of shareholders. Except as otherwise provided by these Articles of
Incorporation or the Colorado Corporation Code, if a quorum is present, the
affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the shareholders.
When, with respect to any action to be taken by shareholders of this Corpora
tion, the laws of Colorado require the vote or concurrence of the holders of
two-thirds of the outstanding shares, of the shares entitled to vote thereon,
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or of any class or series, such action may be taken by the vote or concurrence
of a majority of such shares or class or series thereof. Cumulative voting
shall not be allowed in the election of directors of this Corporation.
Shares of Preferred Stock shall only be entitled to such vote as is
determined by the Board of Directors prior to the issuance of such stock,
except as required by law, in which case each share of Preferred Stock shall
be entitled to one vote.
5. Preemptive Rights. The holders of shares of common stock of the
Corporation shall be entitled to and shall have preemptive rights or
preferential rights to subscribe to any additional unissued stock or any other
securities which the Corporation may offer as now or hereafter may be
authorized for issuance. The Board of Directors, however, may issue stock
options to directors, officers, or employees in accordance with applicable
law, without first offering such options or the underlying shares to stock
holders of the Corporation; and no stockholder shall have any preemptive right
in, or preemptive right to subscribe to, any such options or the underlyng
shares issued pursuant to such options.
6. Conversion Rights. Holders of shares of Preferred Stock may be
granted the right to convert such Preferred Stock to Common Stock of the Cor
poration on such terms as may be determined by the Board of Directors prior to
issuance of such Preferred Stock.
ARTICLE V
INDEMNIFICATION
The Corporation may indemnify any director, officer, employee, fiduciary,
or agent of the Corporation to the full extent permitted by the Colorado
Business Corporation Act as in effect at the time of the conduct by such
person.
ARTICLE VI
AMENDMENTS
The Corporation reserves the right to amend its Articles of Incorporation
from time to time in accordance with the Colorado Business Corporation Act.
ARTICLE VII
ADOPTION OF BYLAWS
The initial Bylaws of the Corporation shall be adopted by its board of
directors. The Bylaws may contain any provisions for the regulation and
management of the affairs of the Corporation not inconsistent with law or
these Articles of Incorporation.
ARTICLE VIII
INITIAL BOARD OF DIRECTORS
The number of directors of the Corporation shall be fixed by the Bylaws
of the Corporation. The initial board of directors of the Corporation shall
consist of one (1) director. The name and address of the person who shall
serve as director until the first annual meeting of shareholders and unti his
successor is elected and shall qualify are:
Timothy J. Brasel 16178 East Prentice Place
Aurora, Colorado 80015
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ARTICLE IX
LIMITATION OF LIABILITY OF
DIRECTORS TO CORPORATIONS AND SHAREHOLDERS
No director shall be liable to the Corporation or any shareholder for
monetary damages for breach of fiduciary duty as a director, except for any
matter in respect of which such director (a) shall be liable under C.R.S.
Section 7-108-403 or any amendment thereto or successor provision thereto; (b)
shall have breached the director's duty of loyalty to the Corporation or its
shareholders; (c) shall have not acted in good faith or, in failing to act,
shall not have acted in good faith; (d) shall have acted or failed to act in a
manner involving intentional misconduct or a knowing violation of law; or (e)
shall have derived an improper personal benefit. Neither the amendment nor
repeal of this Article, nor the adoption of any provision in the Articles of
Incorporation inconsistent with this Article, shall eliminate or reduce the
effect of this Article in respect of any matter occurring prior to such
amendment, repeal or adoption of an inconsistent provision. This Article
shall apply to the full extent now permitted by Colorado law or as may be
permitted in the future by changes or enactments in Colorado law, including
without limitation C.R.S. Section 7-102-102 and/or C.R.S. Section 7-103-102.
ARTICLE X
REGISTERED OFFICE AND REGISTERED AGENT
The address of the initial registered office of the Corporation is 16178
East Prentice Place, Aurora, Colorado 80015, and the name of the initial
registered agent at such address is Timothy J. Brasel. Further the regis
tered office or the registered agent may be changed in the manner permitted by
law. The undersigned consents to his appointment as registered agent of the
Corporation.
Dated: December 5, 1996 /s/ Timothy J. Brasel
Timothy J. Brasel
ARTICLE XI
INCORPORATOR
The name and address of the incorporator is Jon D. Sawyer, 600 17th
Street, Suite 2700, Denver, Colorado 80202.
Dated: December 5, 1996 /s/ Jon D. Sawyer
Jon D. Sawyer, Incorporator
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