CERTIFICATE OF INCORPORATION
OF
AQUA VIE BEVERAGE CORPORATION-H
FIRST: The name of the Corporation is Aqua Vie Beverage
Corporation-H, (the "Corporation").
SECOND: The registered office of the Corporation in the State
of Delaware is located at 1013 Centre Road, City of Wilmington,
County of New Castle. The name and address of its registered
agent is CSC, 1013 Centre Road, City of Wilmington, County of
New Castle, Delaware 19805.
THIRD: The nature of the business, objects and purposes to be
transacted, promoted or carried on by the Corporation are:
To manufacture, purchase or otherwise acquire, invest in,
mortgage,
Pledge, sell, assign and transfer or otherwise dispose of,
trade, deal in and with goods, wares and merchandise and personal
property of every class description;
To acquire, and pay for in cash, stock or bonds of
this Corporation or
otherwise, the goodwill, rights, assets and
property, and to undertake or assume the
whole or any part of the obligations or
liabilities of any person, partnership, trust,
joint stock company, syndicate, firm,
association or corporation;
To acquire, hold use, sell, assign, lease, and grant
licenses in respect of, mortgage or otherwise dispose of letters
patent of the United States or any
foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights,
trademark and trade names relating to or useful in connection with any
business of the Corporation;
To acquire by purchase, subscription or otherwise,
and to receive, hold, own, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the shares of
the capital stock, or any voting trust
Certificates in respect of the shares of capital
stock, scrip, warrants, rights,
Bonds, debentures, notes, trust receipts and
other securities, obligations,
Chooses in action and evidences of indebtedness
or interest issued or created
by any corporations, joint stock companies,
syndicates, associations, firms,
trust or person, public or private, or by the
government of the United States of
America, or by any foreign government, or by any
state, territory, province,
municipality or other political subdivision or
by any governmental agency,
and as owner thereof to possess and exercise
all the rights, powers, and
privileges of ownership, including the right to
execute consents and vote
thereon, and to do any and all acts and things
necessary or advisable for the
preservation, protection, improvement and
enhancement in value thereof;
To borrow or raise money for any of the purposes of
the Corporation and, from time to time without limit
as to amount, to draw, make, accept, endorse,
execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other
negotiable or nonnegotiable instruments and
evidences of indebtedness, and to secure the payment
of any thereof and of the interest thereon by
mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of
the Corporation, whether at the time owned or
thereafter acquired, and to sell, pledge, or
otherwise dispose of such bonds or other obligations
of the Corporation for its corporate purposes;
To purchase, receive, take by grant, gift, devise,
bequest or otherwise lease, or otherwise acquire,
own, hold, improve, employ, use and otherwise deal
in and with, real or personal property, or any
interest therein, wherever situated, and to sell,
convey, lease, exchange, transfer or otherwise
dispose of, or mortgage or pledge, all or any of the
Corporation's property and assets, or any interest
therein, wherever situated; and
To engage in any lawful act or activity for which
corporations may be organized under the existing
laws of the state of Delaware.
The business and purposes specified in the
foregoing clauses shall, except where otherwise
expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any
other clause in this Certificate of Incorporation,
but the business and purposes specified in each of
the foregoing clauses of this article shall be
regarded as independent business and purposes.
FOURTH: The total number of shares of all classes
of stock which the Corporation shall have authority
to issue shall be 51,000,000 shares, of which
1,000,000 shares will be preferred stock of the par
value of one tenth of a cent each ($.001)
(hereinafter called the "Preferred Stock") and of
which 50,000,000 shares shall be common stock of the
par value of one tenth of a cent each ($.001)
(hereinafter called the "Common Stock").
The following is a statement of the powers,
preferences and rights and the qualifications,
limitations and restrictions, of classes of stock of
the Corporation, and the authority with respect
thereto expressly vested in the Board of Directors
of the Corporation.
Serial Preferred Stock
(1) Shares of Serial Preferred Stock may be
issued from time to time in one or more series,
each such series to have distinctive serial
designations, as shall hereafter be determined
in the resolution or resolutions providing for
the issue of such Serial Preferred Stock from
time to time adopted by the Board of Directors
pursuant to authority so to do which is hereby
vested in the Board of Directors.
(2) Each series of Serial Preferred Stock
a. May have such number of shares;
b. May have such voting powers, full
or limited, or may be without voting powers;
c. May be subject to redemption at
such time or times and at such prices;
d. May be entitled to receive
dividends (which may be cumulative or non
cumulative ), at such rate or rates, on
such conditions, from such date or dates,
and at such times, and payable in preference
to, or in relation to, the dividends payable
on any other class or classes or series of
stock;
e. May have such rights upon the
dissolution of, or upon any distribution of
the assets of, the Corporation;
f. May be made convertible into, or
exchangeable for, shares of any other class
or classes of any other series of the same
or any other class or classes of stock of
the Corporation at such price or prices or
at such rates of exchange, and with such
adjustments;
g. May be entitled to the benefit of
a sinking fund or purchase fund to be
applied to the purchase or redemption of
shares of such series in such amount or
amounts;
h. May be entitled to the benefits
of such conditions and restrictions upon the
creation of indebtedness of the Corporation
or any subsidiary, upon the issuance of any
additional stock (including additional
shares of such series or any other series)
and upon the payment of dividends or the
making of other distributions on and the
purchase redemption or other acquisition by
the Corporation or any subsidiary of any
outstanding stock of the Corporation; and
i. May have such other relative,
participating, optional or other special
rights, and qualifications, limitations or
restrictions thereof; all as shall be stated
in said resolution or resolutions providing
for the issuance of such Serial Preferred
Stock. Except where otherwise set forth in
the resolution or resolutions adopted by the
Board of Directors providing for the
issuance of any series of Serial Preferred
Stock, the number of shares comprising such
series may be increased or decreased (but
not below the number of shares then
outstanding) from time to time by like
action of the Board of Directors.
(3) Shares of any series of Serial
Preferred Stock which have been redeemed
(whether through the operation of a sinking
fund or otherwise) or purchased by the
Corporation, or which, if convertible or
exchangeable, have been converted into or
exchanged for shares of stock of any other
class or classes shall have the statue of
authorized and unissued shares of Serial
Preferred Stock and may be reissued as a part
of the series of which there were originally a
part or may be reclassified and reissued as
part of a new series of Serial Preferred Stock
to be created by resolution or resolutions of
the Board of Directors or as part of any other
series of Preferred Stock, all subject to the
conditions or restrictions on issuance set
forth in the resolution or resolutions adopted
by the Board of Directors providing for the
issuance of any series of Serial Preferred
Stock and to any filing required by law.
D. Common Stock
(1) Except as otherwise provided by law or by
the resolution or resolutions of the Board of
Directors providing for the issuance of any
series of the Serial Preferred Stock, the
Common Stock shall have the exclusive right to
vote for the election of Directors and for all
other purposes, each holder of the Common Stock
being entitled to one vote for each share held.
(2) Subject to all of the rights of the Serial
Preferred Stock or any series thereof, the
holders of the Common Stock shall be entitled
to receive, which, as and if declared by the
Board of Directors, out of funds legally
available therefor, dividends payable in cash,
stock or otherwise.
(3) Upon any liquidation, dissolution or
winding up of the Corporation, whether
voluntary or involuntary, and after the holders
of the Serial Preferred Stock of each series
shall have been paid in full, the amounts to
which they respectively shall be entitled, or a
sum sufficient for such payments in full shall
have been set aside, the remaining net assets
of the Corporation shall be distributed pro
rata to the holders of the Common Stock in
accordance with their respective rights and
interests, to the exclusion of the holders of
the Serial Preferred Stock.
D. General Provisions
Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken for or in connection with
any corporate action, the meeting and vote of stockholders
may be dispensed with and such action may be taken with the
written consent of stockholders having not less than the
minimum percentage of the vote required by statute for the
proposed corporate action, provided that prompt notice
shall be given to all stockholders of the taking of the
corporate action without a meeting and by less than
unanimous vote.
FIFTH: No stockholder of this Corporation shall by reason
of his holding shares of any class have any pre-emptive or
preferential right to purchase or subscribe to any shares
of any class of the Corporation, now or hereafter to be
authorized or any notes, debentures, bonds or other
securities convertible into or carrying warrants or options
to purchase shares of any class, now or hereafter to be
authorized, whether or not the issuance of any such shares
or such notes, debentures, bonds or other securities would
adversely affect the dividend or voting rights of such
stockholder other than such rights, in any, as the Board of
Directors, in its discretion, may fix; and the Board of
Directors may issue shares of any class of this
Corporation, or any note, debentures, bonds or other
securities convertible into or carrying options or warrants
to purchase shares of any class, without offering any such
shares of any class, whether in whole or in part, to the
existing stockholders of any class.
SIXTH: The name and mailing address of the incorporator is:
Name Mailing Address
Bruce A. Butcher, Esq. Suite 3827-1001 Fourth Ave. Plaza
Seattle, WA 98154
SEVENTH: The Corporation is to have perpetual existence.
EIGTH: The number of directors constituting the original
Board of Directors is one (1). The number of the directors
shall be fixed by, or in the manner provided in, the By-
Laws of the Corporation. The names and addresses of the
initial directors of the Corporation who are to serve until
the first annual meeting of the shareholders or until their
successors are elected and qualified are:
Name Mailing Address
Thomas J. Gillespie 191 Sun Valley Road.
PO Box 5569
Ketchum, Idaho 83340
NINTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
(1) To make, alter or repeal the By- Laws of
the Corporation.
(2) To authorize and cause to be executed
mortgages and liens upon the real and personal
property of the Corporation.
(3) To set apart out of any of the funds of the
Corporation available for dividends a reserve
or reserves for any purpose and to abolish any
such reserve in the manner in which it was
created.
(4) By a majority of the whole Board of
Directors, to designate one or more committees
to consist of two or more of the directors of
the Corporation. The Board of Directors may
designate one or more directors as alternate
members of any committee, who may replace any
absent or disqualified member at any meeting of
the committee. Any such committee, to the
extent provided in the resolution or in the by-
laws of the corporation, shall have and may
exercise the powers of the Board of Directors
in the management of the business and affairs
of the Corporation and may authorize the seal
of the Corporation to be affixed to all papers
which may require it; provided, however, the
by- laws may provide that in the absence or
disqualification of any member of such
committee or committees the member or members
thereof present at any meeting and not
disqualified from voting, whether or not he or
they constitute a quorum, may unanimously
appoint another member of the Board of
Directors to act at the meeting in the place of
any such absent or disqualified member.
(5) When and as authorized by the affirmative
vote of the holders of a majority of the stock
issued and outstanding having voting power
given at a stockholder's meeting duly called
upon such notice as is required by statute, or
when authorized by the written consent of the
holders of a majority of the voting stock
issued and outstanding, to sell, lease or
exchange all or substantially all the property
and assets of the Corporation, including its
goodwill and its corporate franchises, upon
such terms and conditions and for such
consideration, which may consist in whole or in
part of money or property including securities
of any other corporation or corporations, as
the Board of Directors shall deem expedient and
for the best interests of the Corporation.
TENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the by-laws may provide.
The books of the Corporation may be kept (subject to any
provision contained in the statutes) outside of the State
of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the
by-laws of the Corporation shall so provide.
ELEVENTH: A director of the Corporation shall not be
personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts of omissions not in good faith
or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, as the same exists or hereafter
may be amended, or (iv) for any transaction from which the
director derived an improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to
authorize the further elimination of limitation of the
liability of directors, then the liability of a director of
the Corporation, in addition to the limitation on personal
liability provided herein, shall be limited to the fullest
extent permitted by the amended Delaware General
Corporation Law. Any repeal or modification of this
paragraph by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or
modification.
The Corporation shall, to the extent permitted by Section
145 of the Delaware General Corporation Law, as amended
from time to time, indemnify and reimburse all persons whom
it may indemnify and reimburse pursuant thereto. Expenses
incurred by an officer of director in defending a civil or
criminal 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
by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized
in Section 145(e) of the Delaware General Corporation Law.
Notwithstanding the foregoing, the indemnification provided
for herein shall not be deemed exclusive of any other
rights to which those entitled to receive indemnification
or reimbursement hereunder may be entitled under any by-law
of this Corporation, agreement, vote of stockholders or
disinterested directors of otherwise.
TWELTH: No contract or transaction between this corporation
and any person, firm, association, or corporation and no
act of this Corporation shall, in the absence of fraud, be
invalidated or in any way affected by the fact that any of
the directors of this Corporation are pecuniarily or
otherwise interested directly or indirectly, in such
contract, transaction or act, or are related to or
interested in, as a director, stockholder, officer,
employee, member or otherwise, such person, firm,
association or corporation. Any director so interested or
related who is present at any meeting of the Board of
Directors or committee of directors at which action on any
contract, transaction or act is taken may be counted in
determining the presence of a quorum at such meeting and
may vote thereat with respect to such contract, transaction
or act with like force and effect as if he were not so
interested or related. No director so interested or
related shall, because of such interest or relationship, be
disqualified from holding his office or be liable to the
Corporation or to any stockholder or creditor thereof for
any loss incurred by this Corporation under or by reason of
such contract, transaction or act, or be accountable for
any gains or profits he may have realized therein.
THIRTEENTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Certificate of Incorporation, in the manner how or
hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this
reservation.
THE UNDERSIGNED, being the incorporator herein before
named, for the purpose of forming a corporation pursuant to
the Corporation Laws of the State of Delaware, does make
this Certificate, hereby declaring and certifying that this
is my act and deed and the facts herein stated are true and
accordingly have hereunto set my hand this 29th day of
July, 1998.