Exhibit 3.1
ARTICLES OF INCORPORATION
OF
ATLAS MINERALS INC.
ARTICLE I
NAME
The name of the Corporation is Atlas Minerals Inc.
ARTICLE II
AUTHORIZED CAPITAL
The aggregate number of shares of stock the Corporation is authorized to
issue is 100,000,000 shares of a class designated as common stock, $0.01 par
value, and 1,000,000 shares of a class designated as preferred stock, $0.01 par
value, and the relative rights of the shares of each class are as follows:
1. Preferred Stock. The Corporation may divide and issue the preferred
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stock in series. Preferred shares of each series when issued shall be
designated to distinguish them from the shares of all other series. The Board
of Directors hereby is expressly vested with authority to divide the class of
preferred stock into series and to fix and determine the relative rights,
limitations and preferences of the shares of any such series so established to
the full extent permitted by these Articles of Incorporation and the laws of the
state of Colorado in respect of the following:
(a) The number of shares to constitute such series, and the
distinctive designations thereof;
(b) The rate and preference of any dividends and the time of payment
of any dividends, whether dividends are cumulative and the date from which any
dividends shall accrue;
(c) Whether shares may be redeemed and, if so, the redemption price
and the terms and conditions of redemption;
(d) The amount payable upon shares in event of involuntary
liquidation;
(e) The amount payable upon shares in event of voluntary liquidation;
(f) Sinking fund or other provisions, if any, for the redemption or
purchase of shares;
(g) The terms and conditions on which shares may be converted, if the
shares of any series are issued with the privilege of conversion;
(h) Voting rights, if any; and
(i) Any other relative rights and preferences of shares of such
series, including without limitation any restriction on an increase in the
number of shares of any series theretofore authorized and any limitation or
restriction of rights or powers to which shares of any future series shall be
subject.
There shall be no preemptive rights with respect to any shares of preferred
stock, unless designated by the Board of Directors.
2. Common Stock.
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(a) The holders of common stock shall have and possess all rights as
shareholders of the Corporation except as such rights may be limited by law or
by the preferences, privileges and voting powers, and the restrictions and
limitations, of any class or series of preferred stock. All common stock, when
duly issued, shall be fully paid and nonassessable.
(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 of common stock shall
have as many votes for each share held by him as there are directors to be
elected by the common shareholders and for whose election the shareholder has a
right to vote. Cumulative voting shall not be permitted in the election of
directors or otherwise.
(c) In the event of liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment or
provision for payment of all of the Company's debts and obligations and any
preferential distributions to holders of shares of any class or series of
preferred stock, the holders of shares of common stock shall be entitled to
receive, ratably in proportion to the number of shares of common stock held by
them respectively, the net assets of the Corporation.
(d) Subject to the preferential rights of the holders of shares of
any class or series of preferred stock, the holders of common stock shall be
entitled to receive, as and when declared by the Board of Directors out of funds
of the Corporation legally available therefor, such dividends (payable in cash,
stock or otherwise) as the Board of Directors may from time to time determine,
payable to shareholders of record on such dates as shall be fixed for such
purpose by the Board of Directors in advance of payment of each particular
dividend.
(e) There shall be no preemptive rights with respect to any shares of
common stock.
ARTICLE III
OFFICES AND REGISTERED AGENT
1. The street address of the registered office of the Corporation is 1675
Broadway, Denver, Colorado 80202, and the name of the registered agent at that
address is The Corporation Company. The written consent of the registered agent
to the appointment as such is stated below.
2. The address of the Corporation's principal office is 370 Seventeenth
Street, Suite 3010, Denver, Colorado 80202.
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ARTICLE IV
INCORPORATOR
The name and address of the sole incorporator is James R. Jensen, Atlas
Corporation, is 370 Seventeenth Street, Suite 3010, Denver, Colorado 80202.
ARTICLE V
PURPOSES
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 and may carry on any business or activity permissible 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.
ARTICLE VI
BOARD OF DIRECTORS
1. Management. The corporate powers shall be exercised by or under the
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authority of, and the business and affairs of the Corporation shall be managed
under the direction of, a Board of Directors.
2. Number; Qualifications. The number of directors of the Corporation
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shall be specified in or fixed in accordance with the Bylaws of the Corporation.
Directors need not be residents of the State of Colorado or the United States or
shareholders of the Corporation. The board of directors shall be elected at the
annual meeting of the shareholders or at a special meeting called for that
purpose. Each director shall be elected to hold office until the next annual
meeting of shareholders and until the director's successor is elected and
qualified.
3. Removal. A director may be removed from office only for cause and only
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by (a) the affirmative vote of the holders of not less than a majority of the
number of shares of common stock then outstanding or (b) the affirmative vote of
a majority of the entire Board of Directors then in office. Except as otherwise
provided by law or fixed by, or pursuant to, the provisions of Article II hereof
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relating to the rights of holders of any class or series of stock having a
preference over the common stock as to voting dividends or upon liquidation or
to elect directors under specified circumstances, this paragraph 3 shall not
apply with respect to any director elected by the holders of any such class or
series having a preference.
4. Vacancies. Except as otherwise provided for or fixed by, or pursuant
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to, the provisions of Article II hereof relating to the rights of holders of any
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class or series of stock having a preference over the common stock as to voting
dividends or upon liquidation or to elect directors under specified
circumstances, newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors. Any director elected
in accordance with the preceding sentence shall hold office for the remainder of
the term of the director who was replaced and until such director's successor
shall have been elected and
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qualified. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
ARTICLE VII
LIMITATION ON DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or to its shareholders for monetary damages for breach of fiduciary
duty as a director; except that this provision shall not eliminate or limit the
liability of a director to the Corporation or to its shareholders for monetary
damages otherwise existing for (i) any breach of the director's duty of loyalty
to the Corporation or to its shareholders; (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) acts specified in Section 7-108-403 of the Colorado Business Corporation
Act, as it may be amended from time to time; or (iv) any transaction from which
the director directly or indirectly derived any improper personal benefit. If
the Colorado Business Corporation Act is hereafter amended to eliminate or limit
further the liability of a director, then, in addition to the elimination and
limitation of liability provided by the preceding sentence, the liability of
each director shall be eliminated or limited to the fullest extent permitted by
the Colorado Business Corporation Act as so amended. Any repeal or modification
of this Article VII shall not adversely affect any right or protection of a
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director of the Corporation under this Article VII, as in effect immediately
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prior to such repeal or modification, with respect to any liability that would
have accrued, but for this Article VII, prior to such repeal or modification.
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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 he may have for contribution from any
other director or other person.
ARTICLE VIII
CONFLICTING INTEREST TRANSACTIONS AND INDEMNIFICATION
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.
1. Conflicting Interest Transactions.
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1.1 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. "Conflicting interest
transaction" shall not include any transaction between the Corporation and
another entity that owns, directly or indirectly, all of the outstanding shares
of the Corporation or all of the outstanding shares or other equity interests of
which are owned, directly or indirectly, by the Corporation. 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
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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) the
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 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.
2. Loans and Guaranties for the Benefit of Directors. Neither the Board
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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 (10) 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 2 are in addition to, and not in substitution for, the provisions
of paragraph 1 of this Article VIII.
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3. Indemnification. The Corporation shall, to the fullest extent
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permitted by the Colorado Business Corporation Act, as amended from time to
time, indemnify all directors and officers of the Corporation for liabilities or
claims incurred by such directors and officers within the scope of their
services and duties to the Corporation. Expenses (including attorneys' fees)
incurred by an officer or director of the Corporation or any of its direct or
indirect wholly-owned subsidiaries in defending any civil, criminal,
administrative or investigative action, suit or proceeding, shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking (and appropriate security or bond if
and as determined by the Board of Directors) by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized above. In the
event that an officer or director incurs expenses (including attorneys' fees) in
connection with a successful action to enforce the above indemnification rights,
such officer or director shall be entitled to indemnification for such expenses.
The foregoing right of indemnification shall inure to each such director and
officer, whether or not he or she is such director or officer at the time such
cost or expenses are imposed or incurred, and whether or not the claim asserted
against him or her is based on matters which antedate the adoption of these
revised articles, and in the event of his or her death shall extend to his legal
representatives. Such right of indemnification shall not be exclusive of any
other rights to which such director or officer may be entitled to as a matter of
law. Such expenses (including attorneys' fees) incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate. The Corporation shall further have the authority to
the maximum extent permitted by law to purchase and maintain insurance providing
such indemnification.
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4. Negation of Equitable Interests in Shares or Rights. Unless a person
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is recognized as a shareholder through procedures established by the Corporation
pursuant to Section 7-107-204 of the Colorado Business Corporation Act or any
similar applicable 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 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 Section
7-107-204 of the Colorado Business Corporation Act 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 Section 7-113-101(1) of the
Colorado Business Corporation Act, as amended from time to time, of any right he
may have pursuant to Article 113 of the Colorado Business Corporation Act or any
similar law subsequently enacted.
ARTICLE IX
AMENDMENT
The Corporation expressly reserves the right to amend, alter, change or
repeal any provision or provisions contained in these Articles of Incorporation
or any Article contained herein in any manner or respect now or hereafter
permitted or provided by the Colorado Business Corporation Act or any similar
law subsequently enacted, and the rights of all officers, directors and
shareholders are expressly made subject to such reservation.
ARTICLE X
BYLAWS
In furtherance of and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized from time to
time to make, alter, amend, supplement or repeal the Bylaws of the Corporation
in any respect, subject to the right of the shareholders entitled to vote with
respect thereto to adopt, alter, amend and repeal bylaws made by the Board of
Directors.
ARTICLE XI
EXISTENCE
The Corporation, if not dissolved, shall have perpetual existence.
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The undersigned has signed these Articles of Incorporation this ____ day of
________________, 2000.
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James R. Jensen, Sole Incorporator
THE UNDERSIGNED CONSENTS TO THE APPOINTMENT AS THE REGISTERED AGENT.
Signature of registered agent:
THE CORPORATION TRUST COMPANY
By: ________________________________
Name: __________________________
Title: __________________________
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