EXHIBIT (3)(a)
ARTICLES OF INCORPORATION
OF
GATEWAY AMERICAN PROPERTIES CORPORATION
ARTICLE I - Name
The name of the corporation is GATEWAY AMERICAN PROPERTIES CORPORATION.
19971044938 C
$ 50.00
SECRETARY OF STATE
03-21-97 13:55:08
ARTICLE II - Initial Principal Office
The initial principal office of the corporation shall be 9145 East Kenyon
Avenue, Suite 200, Denver, CO 80237-1810.
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 - Purposes and Powers
Section 1. Purposes. Except as restricted by these Articles of
Incorporation, the corporation is organized for the purpose of transacting all
lawful business for which corporations may be incorporated pursuant to the
Colorado Business Corporation Act, as amended (the "Act")
Section 2. General Powers. The corporation shall have and may exercise any
and all powers and rights which a corporation may exercise legally pursuant to
the Act.
ARTICLE V - Capital Stock
Section 1. Shares Authorized. This corporation is authorized to issue one
class of shares of stock to be designated as "Common Stock." The total number of
shares that may be issued by this corporation is 20,000,000 shares having a par
value of $0.01. All or any part of the shares of the Common Stock may be issued
by the corporation from time to time for such consideration as may be determined
and fixed by the Board of Directors, as provided by law, and when such
consideration has been received by the corporation, such shares shall be deemed
fully paid.
Section 2. Dividends. 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.
Section 3. Liquidation. In the event of voluntary or involuntary
liquidation, dissolution or winding up of the corporation, and after paying or
adequately providing for the payment of all its obligations, the holders of the
Common Stock shall be entitled to receive all the remaining assets of the
corporation available for distribution to its stockholders ratably in proportion
to the number of shares of Common Stock held by them respectively.
Section 4. Voting Rights; Non-Cumulative Voting. Each outstanding share of
Common Stock shall be entitled to one (1) 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 outstanding shares
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of shareholders. When, with respect to any action taken by
shareholders of this corporation, the Act requires the vote or concurrence of
the holders of greater than a majority of the outstanding shares of the
corporation, the Act shall control. Except as otherwise provided by these
Articles of Incorporation or the Act, 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. Cumulative voting in
the election of directors will not be allowed.
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Section 5. Preemptive Rights. No holder of any shares of the corporation
shall, as such, have any preemptive right to purchase or to subscribe for any
shares of the Common Stock or any other securities of the corporation which it
may issue or sell, whether out of the number of shares authorized by the
Articles of Incorporation of the corporation as originally filed, or by any
amendment thereof, or out of shares of the Common Stock of the corporation
acquired by it after the issue thereof, nor shall any holder of any such share,
as such, have any right to purchase or subscribe for any obligation which the
corporation may issue or sell that shall be convertible into or exchangeable for
any shares of the Common Stock of the corporation, or which shall be attached or
appertain to any warrant or warrants or any instrument or instruments that shall
confer upon the owner of such obligation, warrant or instrument the right to
subscribe for or to purchase from the corporation any shares of its Common
Stock.
ARTICLE VI - Corporate Opportunity
The officers, directors, and other members of management of this
corporation shall be subject to the doctrine of "corporate opportunities" only
insofar as it applies to business opportunities in which this corporation has
expressed an interest as determined from time to time by this corporation's
Board of Directors as evidenced by resolutions appearing in the corporation's
minutes. Once such areas of interest are delineated, all such business
opportunities within such areas of interest which come to the attention of the
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officers, directors and other members of management of this corporation shall be
disclosed promptly to this corporation and made available to it. The Board of
Directors may reject any business opportunity presented to it and thereafter any
officer, director or other member of management may avail himself of such
opportunity. Until such time as this corporation, through its Board of
Directors, has designated an area of interest, the officers, directors and other
members of management of this corporation shall be free to engage in such areas
of interest on their own and this doctrine shall not limit the rights of any
officer, director or other member of management of this corporation to continue
a business existing prior to the time that such area of interest is designated
by the corporation. This provision shall not be construed to release any
employee of this corporation (other than an officer, director or member of
management) from any duties which he may have to this corporation.
ARTICLE VII - Initial Registered Office and Agent
The street address of the initial registered office of this corporation is
9145 East Kenyon Avenue, Suite 200, Denver, CO 80237-1810, and the name of the
initial registered agent of this corporation at that address is HARVEY E.
DEUTSCH.
ARTICLE VIII - Incorporator
The name and address of the person signing these Articles is: HARVEY E.
DEUTSCH, 9145 East Kenyon Avenue, Suite 200, Denver, CO 80237-1810.
ARTICLE IX - Bylaws
The initial Bylaws of the corporation shall be adopted by its Board of
Directors. The power to adopt, alter, amend or repeal Bylaws of this corporation
shall be vested in either the Board of Directors or shareholders; provided,
however, that the Board of Directors may not alter, amend or repeal any Bylaw
adopted by the shareholders if the shareholders specifically provide that the
Bylaw is not subject to alteration, amendment or repeal by the Board of
Directors.
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ARTICLE X - Amendment
The corporation reserves the right to amend its Articles of Incorporation
from time to time in accordance with the Colorado Business Corporation Act.
ARTICLE XI - Indemnification
Section 1. Right to Indemnification. The corporation shall indemnify any
person who was, is, or is threatened to be made a party to any threatened,
pending or completed action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal (other than an
action by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee, fiduciary or agent of the corporation or
who, while a director, officer, employee, fiduciary or agent of the corporation,
is or was serving at the request of the corporation as a director, officer,
partner, employee, fiduciary, or agent of another corporation, partnership,
joint venture, trust, other enterprise or employee benefit plan, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, to the extent that and under the circumstances in
which the Act permits such indemnification. The corporation shall indemnify any
person who was, is, 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 a director, officer, employee, fiduciary or agent of the corporation or
who, while a director, officer, employee, fiduciary or agent of the corporation,
is or was serving at the request of the corporation as a director, officer,
employee, fiduciary or agent of another corporation, partnership, joint venture,
trust, other enterprise or employee benefit plan, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with such
action, suit or proceeding, to the extent that and under the circumstances which
the Act permits such indemnification.
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Section 2. Manner of Indemnification. Any indemnification under this
Article (unless ordered by a court) shall be made as authorized in a specific
case upon a determination that indemnification of the director, officer,
employee, fiduciary, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in the Act with respect to
indemnification of directors. Such determination may be made: (a) by the Board
of Directors by a majority vote of a quorum consisting of Directors who were not
parties to such action, suit, or proceeding, or (b) if such a quorum is not
obtainable, by a majority vote of a committee of the Board designated by the
Board, which committee shall consist of two (2) or more Directors who were not
parties to the action, suit, or proceeding, except that Directors who were
parties to the action, suit, or proceeding may participate in the designation of
Directors for the committee. If such quorum is not obtainable or such committee
cannot be established pursuant to (a) and (b) above, or even if such quorum is
obtained or such committee is designated if such quorum or committee so directs,
such determination shall be made: (a) by independent legal counsel selected by
vote of the Board of Directors or the committee in the manner specified in (a)
or (b) above (as the case may be) or, if a quorum cannot be obtained and a
committee cannot be established pursuant to (a) and (b) above, by independent
legal counsel selected by a majority vote of the full Board. Authorization of
indemnification and evaluation as to reasonableness of expenses may be made in
the same manner as the determination that indemnification is proper is made;
except that, if the determination that indemnification is proper is made by
independent legal counsel (as set forth above), authorization of indemnification
and evaluation as to reasonableness of expenses may be made by the body that
selected said counsel.
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Section 3. Non-Exclusive Right. The foregoing right of indemnification
shall not be deemed exclusive of any other right to which those seeking
indemnification may be entitled and shall continue as to a person who has ceased
to be a director, officer, employee, fiduciary, or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 4. Personal Liability. The personal liability of a director to the
corporation or to its shareholders for monetary damages for breach of fiduciary
duty as a director is hereby eliminated, except that such provision shall not
eliminate or limit the liability of a director to the corporation or its
shareholders for monetary damages for: any breach of the director's duty of
loyalty to the corporation or to its shareholders; acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
acts specified in Section 7-108-403 of the Act; or any transaction from which
the director derived an improper personal benefit.
Section 5. Vote to Amend. A vote of two-thirds (2/3) of each class of stock
entitled to vote shall be required to amend this article.
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ARTICLE XII - BOARD OF DIRECTORS
Section 1. Number. The number of Directors of the corporation shall be
between three (3) and five (5), which number may be increased or decreased
pursuant to the bylaws of the corporation but shall never be less than one (1),
provided that:
(a) If there is no stock outstanding, the number of Directors may be
less than three (3) but not less than one (1); and
(b) If there is stock outstanding, and so long as there are less
than two (2) shareholders, the number of Directors may be less than two (2) but
not less than the number of shareholders.
Section 2. Initial Board. The initial Board of Directors of the
corporation shall consist of three (3) directors. The names and addresses of the
persons who shall serve as such directors until the first annual meeting of the
shareholders and until their successors are elected and shall qualify are as
follows:
NAME ADDRESS
Harvey E. Deutsch 9145 East Kenyon Avenue
Suite 200
Denver, CO 80237-1810
Michael A. Messina 9145 East Kenyon Avenue
Suite 200
Denver, CO 80237-1810
Joel H. Farkas 9145 East Kenyon Avenue
Suite 200
Denver, CO 80237-1810
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IN WITNESS WHEREOF, I have signed these Articles of Incorporation on this
20th day of March, 1997.
/s/ Harvey E. Deutsch
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HARVEY E. DEUTSCH
The undersigned, having been designated in the foregoing Articles of
Incorporation as Registered Agent, hereby agrees to accept said designation.
/s/ Harvey E. Deutsch
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HARVEY E. DEUTSCH
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