**Exhibit 3.1**

 

**Articles of Amendment to the**

**Amended and Restated Articles of Incorporation of**

**MPC Corporation**

 

Pursuantto Sections 7-106-102 and 7-110-102 of the Colorado Revised Statutes andArticle IV of the Amended and Restated Articles of Incorporation of MPCCorporation (the “***Corporation***”), as amended bythe Articles of Amendment of the Amended and Restated Articles of Incorporationof the Corporation (the “***Amended and RestatedArticles of Incorporation***”), the Corporation hereby amends itsAmended and Restated Articles of Incorporation as set forth below.

 

I.              Amendment to Article IV. Subsections (c) and (d) of Article IV ofthe Amended and Restated Articles of Incorporation are hereby deleted andreplaced in their entirety with the following new subsections (c) – (e):

 

“(c)         Designation of Series A Preferred Stock. There hereby is designated a series ofPreferred Stock, having the relative rights, limitations and preferences as setforth in subsection (e) hereof. The distinctive serial designation of this seriesshall be “Series A Convertible Preferred Stock” (hereinafter “***Series A Preferred Stock***”). Thenumber of shares of Series A Preferred Stock the Corporation is authorized toissue is 640,000, no par value per share.

 

(d)           Designation of Series B Preferred Stock. There hereby is designated a series ofPreferred Stock, having the relative rights, limitations and preferences as setforth in subsection (e) hereof. The distinctive serial designation of thisseries shall be “Series B Convertible Preferred Stock” (hereinafter “***Series B Preferred Stock***”). Thenumber of shares of Series B Preferred Stock the Corporation is authorized toissue is 260,000, no par value per share.”

 

II.            Date Amendment Adopted. This amendment to the Amended and RestatedArticles of Incorporation of MPC Corporation was adopted as of October 5, 2007.

 

III.           Adoption of Amendment. This amendment to the Amended and RestatedArticles of Incorporation of MPC Corporation was duly adopted by the consent ofthe Board of Directors of the Corporation, without shareholder action, and noshareholder action is or was required for the adoption of this amendment to theAmended and Restated Articles of Incorporation of MPC Corporation.

 

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**Articles of Amendment to the**

**Amended and Restated Articles of Incorporation of**

**MPC Corporation**

 

**(Series A and Series B Convertible Preferred Stock**

**Designation of Rights and Preferences)**

 

Pursuantto Sections 7-106-102 and 7-110-102 of the Colorado Revised Statutes andArticle IV of the Amended and Restated Articles of Incorporation of MPCCorporation (the “***Corporation***”), as amended bythe Articles of Amendment of the Amended and Restated Articles of Incorporationof the Corporation (the “***Amended and RestatedArticles of Incorporation***”), the Corporation hereby amends itsAmended and Restated Articles of Incorporation as set forth below.

 

I.              Amendment to Article IV. Article IV of the Amended and RestatedArticles of Incorporation is amended to add the following new subsections (c) –(e):

 

“(c)         Designation of Series A Preferred Stock. There hereby is designated a series ofPreferred Stock, having the relative rights, limitations and preferences as setforth in subsection (e) hereof. The distinctive serial designation of thisseries shall be “Series A Convertible Preferred Stock” (hereinafter “***Series A Preferred Stock***”). Thenumber of shares of Series A Preferred Stock the Corporation is authorized toissue is 615,000, no par value per share.

 

(d)           Designation of Series B Preferred Stock. There hereby is designated a series ofPreferred Stock, having the relative rights, limitations and preferences as setforth in subsection (e) hereof. The distinctive serial designation of thisseries shall be “Series B Convertible Preferred Stock” (hereinafter “***Series B Preferred Stock***”). Thenumber of shares of Series B Preferred Stock the Corporation is authorized toissue is 240,000, no par value per share.

 

(e)           Rights, Limitations and Preferences ofDesignated Preferred Stock.

 

1.             Definitions. As used in subsection (e) of this Article IV, the followingcapitalized terms shall have the following meanings:

 

“***Affiliates***” means any Person that,directly or indirectly through one or more intermediaries, controls or iscontrolled by or is under common control with a Person, as such terms are usedin and construed under Rule 144 under the Securities Act of 1933, as amended,and the rules and regulations promulgated hereunder.

 

“***Asset Sale***” means any voluntarysale, conveyance, exchange or transfer (for cash, securities or otherconsideration) of all or substantially all the property or assets (includingstock of a subsidiary) of the Corporation.

 

“***Change in Control***” means any eventor series of events as a result of which any person or entity or group ofpersons or entities, together with any “affiliate” or “associate” (as suchterms are defined in Rule 12b-2 under the Exchange Act) of such persons orentities, is or becomes the “beneficial owner” (as such term is defined in Rule13d-3 under the Exchange Act) of securities of the Corporation representingmore than fifty percent (50%) of the then outstanding shares of capital stockof the Corporation entitled to vote on the election of directors.

 

“***Closing Price***” shall mean, on anydate, the closing sale price per share of the Common Stock of the Corporation(or, if no closing sale price is reported, the average of the last bid and lastask prices or, if more than one in either case, the average of the average lastbid and the average last ask prices) on such date as reported in compositetransactions for the principal U.S. national or regional securities exchange onwhich it is traded, if any. If the Common Stock of the Corporation is notlisted for trading on a United States national or regional securities exchangeon the relevant date, the Closing Price shall be the last quoted bid price pershare of Common Stock of the Corporation in the over-the-counter market on therelevant date, as reported by the National Quotation Bureau or similarorganization. In absence of such quotation, the Closing Price shall be theaverage of the mid-point of the last bid and asked prices for the common stockof the Corporation on the relevant date from each of at least three (3)nationally recognized independent investment banking firms selected by theCorporation for that purpose.

 

“***Exchange Act***” means the SecuritiesExchange Act of 1934, as amended.

 

“***Liquidation Event***” means theoccurrence of any voluntary or involuntary bankruptcy, liquidation, dissolutionor winding up of the affairs of the Corporation, any Asset Sale, or any Changein Control.

 

“***Liquidation Preference***” means, withrespect to any share of Designated Preferred Stock, $0.00000001.

 

“***Original Issue Date***” means October1, 2007.

 

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“***Participating Dividend***” means, withrespect to any share of Designated Preferred Stock, a dividend payable inaccordance with Section 2.

 

“***Person***” means an individual,partnership, limited liability company, corporation, association, trust, jointventure, unincorporated organization, or any government, governmental departmentor agency or political subdivision thereof.

 

“***Designated Preferred Stock***” meansthe capital stock of the Corporation consisting of Series A Preferred Stock andSeries B Preferred Stock.

 

2.             Participating Dividends. If the Corporation declares or pays anydividends upon the Common Stock (whether payable in cash, securities or otherproperty) other than dividends payable solely in shares of Common Stock, theCorporation shall also declare and pay to the holders of the DesignatedPreferred Stock at the same time that it declares and pays such dividends tothe holders of the Common Stock, dividends in an amount equal to the dividendsthat would have been declared and paid with respect to the Common Stockissuable upon conversion of the Designated Preferred Stock had all of theoutstanding Designated Preferred Stock been converted immediately prior to therecord date for such dividend (assuming, solely for purposes of calculating thenumber of shares of Common Stock issuable upon such conversion, the absence ofthe Beneficial Ownership Limitation set forth in Section 5.1 below and theoccurrence of a Series A Automatic Conversion Event and a Series B AutomaticConversion Event). In the event that the Corporation declares or pays anydividends upon the Common Stock that are payable solely in shares of CommonStock, the Corporation shall declare and pay to the holders of Series APreferred Stock and Series B Preferred Stock, respectively, at the same timethat it declares and pays such dividends to the holders of the Common Stock, adividend payable in shares of Series A Preferred Stock or Series B PreferredStock, respectively, equal to the same number of shares of Common Stock thatsuch holder would have received had such holder’s shares of DesignatedPreferred Stock been converted immediately prior to such issuance into sharesof Common Stock (assuming, solely for purposes of calculating the number ofshares of Common Stock issuable upon such conversion, the absence of theBeneficial Ownership Limitation set forth in Section 5.1 below and theoccurrence of a Series A Automatic Conversion Event and a Series B AutomaticConversion Event).

 

3.             Liquidation. Upon the occurrence of any Liquidation Event, each holder ofDesignated Preferred Stock shall be entitled to be paid, before any paymentshall be made to the holders of Common Stock, an amount in cash (the “LiquidationPayment”) equal to the greater of: (i) the Liquidation Preference on such shares of DesignatedPreferred Stock, determined as of the date payment is made; and (ii) suchamount for each share of Designated Preferred Stock as such Holder wouldreceive had such shares (together with all other then-outstanding shares ofDesignated Preferred Stock) been converted into Common Stock (assuming that theBeneficial Ownership Limitation set forth in Section 5.1 below does not apply)immediately prior to the occurrence of such Liquidation Event, and the holdersof Designated Preferred Stock shall not be entitled to any further payment(assuming, solely for purposes of calculating the number of shares of CommonStock issuable upon such conversion, the occurrence of a Series A AutomaticConversion Event and a Series B Automatic Conversion Event). If, upon anyLiquidation Event, the Corporation’s assets to be distributed among the holdersof the Designated Preferred Stock are insufficient to permit payment to suchholders of the full Liquidation Payment, then the entire assets to bedistributed shall be distributed ratably among the holders of DesignatedPreferred Stock based upon the then aggregate Liquidation Preference of theshares of Designated Preferred Stock held by each such holder.

 

4.             Voting Rights; Special Rights.

 

(a)           NoRight to Vote. Except formatters as to which the holders of outstanding shares of Series A PreferredStock or Series B Preferred Stock have the right to vote as a class as mandatedby law, no holder of outstanding shares of Designated Preferred Stock shall beentitled to vote or consent on any matter presented to the shareholders of theCorporation for their action or consideration at any meeting of shareholders ofthe Corporation (or by written consent of shareholders in lieu of meeting).

 

(b)           NoAmendment, Alteration or Repeal.The Corporation shall not amend, alter or repeal the preferences, specialrights or other powers of the Series A Preferred Stock or Series B PreferredStock so as to affect adversely the such Designated Preferred Stock without thewritten consent or affirmative vote of the holders of at least two-thirds ofthe then outstanding shares of the Series A Preferred Stock or Series BPreferred Stock, as the case may be, given in writing or by vote at a meeting,consenting or voting (as the case may be) separately as a class. Withoutlimiting the generality of the foregoing, any increase in the number ofauthorized shares of the Series A Preferred Stock or Series B Preferred Stock,or any authorization or issuance of any additional series of preferred stockwith either preference or priority over the Designated Preferred Stock orparity with any Designated Preferred Stock as to the right to receive eitherdividends or amounts distributable upon the occurrence of a Liquidation Event,shall in each case be deemed to affect adversely the Designated PreferredStock.

 

5.             Automatic Conversion of Designated PreferredStock. Subject to and uponcompliance with the following provisions of this Section 5, and subject toadjustment as provided in Sections 8 and 9, each share of Designated PreferredStock shall 

 

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beconvertible into twenty fully paid and non-assessable shares of Common Stock(the “***Designated Preferred Stock Conversion Ratio***”)as provided below.

 

5.1           Each share of Series A Preferred Stock held by a holder thereof shallimmediately and automatically be converted into twenty shares of Common Stock(a “***Series A Automatic Conversion Event***”)at such time that, after giving effect to the conversion of all such shares ofSeries A Preferred Stock held by such holder, such holder (together with suchholder’s Affiliates, and any other person or entity acting as a group togetherwith such holder or any of such holder’s Affiliates) would not beneficially ownin excess of 9.99% of the outstanding Common Stock (the “***BeneficialOwnership Limitation***”). For purposes of this Section 5.1, beneficialownership shall be calculated in accordance with Section 13(d) of the ExchangeAct and the rules and regulations promulgated thereunder. In addition, adetermination as to any group status as contemplated above shall be determinedin accordance with Section 13(d) of the Exchange Act and the rules andregulations promulgated thereunder. Neither the automatic conversion nor theBeneficial Ownership Limitation may be waived by such holder or the Company. Theprovisions of this paragraph shall be construed and implemented in a mannerotherwise than in strict conformity with the terms of this Section 5.1 tocorrect this paragraph (or any portion hereof) which may be defective orinconsistent with the intended automatic conversion herein contained or to makechanges or supplements necessary or desirable to properly give effect to suchautomatic conversion.

 

5.2           Each share of Series B Preferred Stock shall immediately andautomatically be converted into twenty shares of Common Stock at such time that(i) the holders of a majority of the issued and outstanding shares of CommonStock of the Corporation approve the issuance of Common Stock pursuant to theconversion of all shares of Series B Preferred Stock, and (ii) each such shareof Series B Preferred Stock may be converted without resulting in the holder ofsuch Series B Preferred Stock holding greater than 19.9% of the Corporation’soutstanding Common Stock immediately after giving effect to the issuance ofshares of Common Stock issuable upon conversion of each such share of Series BPreferred Stock (a “***Series B Automatic Conversion Event***”).

 

5.3.          Upon the occurrence of a Series A Automatic Conversion Event asspecified in Section 5.1 above or a Series B Automatic Conversion Event asspecified in Section 5.2 above, the outstanding shares of Series A PreferredStock or Series B Preferred Stock, as the case may be, shall be convertedautomatically without any further action by the holders of such shares andwhether or not the certificates representing such shares are surrendered to theCorporation or its transfer agent; provided, however, that the Corporationshall not be obligated to issue certificates evidencing the shares of CommonStock issuable upon such conversion unless the certificates evidencing such sharesof Designated Preferred Stock are either delivered to the Corporation or itstransfer agent as provided below, or the holder notifies the Corporation or itstransfer agent that such certificates have been lost, stolen or destroyed andexecutes an agreement satisfactory to the Corporation to indemnify theCorporation from any loss incurred by it in connection with such certificates. Uponthe occurrence of such automatic conversion of Designated Preferred Stock, theholders of such Designated Preferred Stock shall surrender the certificatesrepresenting such shares at the office of the Corporation or any transfer agentfor the Designated Preferred Stock. Thereupon, there shall be issued anddelivered to such holder promptly at such office and in its name as shown onsuch surrendered certificate or certificates, a certificate or certificates forthe number of shares of Common Stock into which the shares of DesignatedPreferred Stock surrendered were convertible on the date on which suchautomatic conversion occurred, and any declared and unpaid dividends shall bepaid in accordance with the provisions of Section 2.

 

5.4.          The Corporation shall at all times reserve and keep available out ofits authorized but unissued shares of Common Stock or its treasury shares ofCommon Stock, solely for the purpose of issuance upon the conversion of theDesignated Preferred Stock as provided in this Section 5, such number ofshares of Common Stock as are then issuable upon conversion of all thenoutstanding shares of Designated Preferred Stock into shares of Common Stock(assuming the occurrence of a Series A Automatic Conversion Event and a SeriesB Automatic Conversion Event). Notwithstanding the foregoing, if, at any time,there shall be an insufficient number of authorized or treasury shares ofCommon Stock available for issuance upon conversion of Designated PreferredStock, the Corporation shall take all action necessary to propose and recommendto the shareholders of the Corporation that the Amended and Restated Articlesof the Incorporation of the Corporation, as amended from time to time, beamended to authorize additional shares in an amount sufficient to provideadequate reserves of shares for issuance upon such conversion, including thediligent solicitation of votes and proxies to vote in favor of such anamendment. All shares of Common Stock which are issuable upon conversionhereunder shall, when issued, be duly and validly issued, fully paid andnonassessable.

 

5.5           The issuance of certificates for shares of Common Stock upon conversionof shares of Designated Preferred Stock shall be made without charge to anyoriginal holder of any shares of Designated Preferred Stock for any issuancetax in respect thereof, or other cost incurred by the Corporation in connectionwith such conversion and the related issuance of Common Stock, provided thatthe Corporation shall not be required to pay any such taxes or costs which maybe payable in respect of any such conversion by any other person or in respectof any transfer involved in the issuance and delivery of any certificate in aname other than that of the registered holder of the shares converted.

 

6.             Redemption. On October 1, 2008, if any shares of the Series B Preferred Stockshall be outstanding, the Corporation shall, to the extent the Corporationshall have funds legally available for such payment, redeem all outstandingshares of 

 

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SeriesB Preferred Stock in cash at a redemption price per share of Series B PreferredStock equal to (x) one-and-one-half (1.5) multiplied by (y) the Closing Pricemultiplied by (z) the number of shares of Common Stock into which share ofSeries B Preferred Stock is then convertible, assuming for such purpose that aSeries B Automatic Conversion Event had occurred, together with accrued andunpaid dividends thereon to such dividend payment date, without interest. Ifthe Corporation is unable to or shall fail to discharge its obligation toredeem all outstanding shares of Series B Preferred Stock pursuant to theprevious sentence (the “***Mandatory RedemptionObligation***”), the Corporation shall discharge such obligation inpart to the extent of the funds legally available therefor, and the MandatoryRedemption Obligation shall remain in effect until such time as the Corporationis able to fully discharge such Mandatory Redemption Obligation. If and so longas any Mandatory Redemption Obligation with respect to the Series B PreferredStock shall not be fully discharged, the Corporation shall not declare or payany dividend or make any distributions on, or, directly or indirectly,purchase, redeem or satisfy any such mandatory redemption, sinking fund orother similar obligation in respect of any equity securities of the Corporation.From and after the payment of the redemption price specified in the firstsentence of this Section 6 with respect to a share of Series B Preferred Stock,all rights of the holder of such share, as a holder of Series B PreferredStock, shall cease and terminate with respect to all such share; provided,that, in the event that all of the shares of Series B Preferred Stock are notredeemed due to a default in payment by the Corporation or because theCorporation does not have sufficient legally available funds, such shares ofSeries B Preferred Stock not redeemed shall remain outstanding and shall beentitled to all of the rights and preferences provided herein.

 

7.             Other Distributions. In the event the Corporation shall declarea distribution payable in securities of other persons, evidences ofindebtedness issued by the Corporation or other persons, or assets (excludingcash dividends), then, in each such case for the purpose of this Section 7, theholders of the Designated Preferred Stock shall be entitled to a proportionateshare of any such distribution as though they were the holders of the number ofshares of Common Stock into which their shares of Designated Preferred Stockare convertible (assuming that the Beneficial Ownership Limitation set forth inSection 5.1 above does not apply) as of the record date fixed for thedetermination of the holders of Common Stock of the Corporation entitled toreceive such distribution.

 

8.             Adjustment for Stock Splits and Combinations. If the Corporation shall at any time orfrom time to time after the Original Issue Date effect a subdivision of theoutstanding Common Stock without a corresponding subdivision of the DesignatedPreferred Stock, the Designated Preferred Stock Conversion Ratio in effectimmediately before that subdivision shall be proportionately increased. Conversely,if the Corporation shall at any time or from time to time after the OriginalIssue Date combine the outstanding shares of Common Stock into a smaller numberof shares without a corresponding combination of the Designated PreferredStock, the Designated Preferred Stock Conversion Ratio in effect immediatelybefore the combination shall be proportionately decreased. Any adjustment underthis Section 8 shall become effective at the close of business on the date thesubdivision or combination becomes effective.

 

9.             Recapitalizations, Mergers or Asset Sales. If at any time or from time to time thereshall be (i) a recapitalization of the Common Stock, (ii) the merger orconsolidation of the Company with or into an unaffiliated third party entity,or (iii) the sale of all or substantially all of the Company’s assets (each a “***Fundamental Transaction***”) provisionshall be made so that the holders of the Designated Preferred Stock shallthereafter be entitled to receive upon conversion of the Designated PreferredStock (or earlier if the Beneficial Ownership Limitation set forth in Section5.1 would not be exceeded) the number of shares of stock or other securities orproperty of the Corporation or otherwise, to which a holder of Common Stockdeliverable upon conversion would have been entitled on such FundamentalTransaction, assuming that the Beneficial Ownership Limitation set forth inSection 5.1 above does not apply (and assuming the occurrence of a Series AAutomatic Conversion Event and a Series B Automatic Conversion Event). In anycase, appropriate adjustment shall be made in the application of the provisionsof Amended and Restated Articles of the Incorporation, as amended from time totime, with respect to the rights of the holders of the Designated Preferred Stockafter a recapitalization to the end that the provisions of Amended and RestatedArticles of the Incorporation, as amended from time to time, (including thenumber of shares purchasable upon conversion of the Designated Preferred Stock)shall be applicable after that event as nearly equivalent as may be practicable.In the event that the Company’s shareholders would be cashed out following aFundamental Transaction, all shares of outstanding Designated Preferred Stockshall be deemed to have been converted into Common Stock upon the consummationof such Fundamental Transaction, without regard to any provision in thisArticle IV limiting such conversion.

 

10.           No Impairment. The Corporation shall not, by the amendmentof its Amended and Restated Articles of the Incorporation, as amended from timeto time, or through any reorganization, recapitalization, transfer of assets,consolidation, merger, dissolution, issue or sale of securities or any othervoluntary action, avoid or seek to avoid the observance or performance of anyof the terms to be observed or performed hereunder by the Corporation, but atall times shall in good faith assist in the carrying out of all the provisionsof Amended and Restated Articles of the Incorporation, as amended from time totime, and in the taking of all such action as may be necessary or appropriatein order to protect the conversion rights of the holders of the DesignatedPreferred Stock, against impairment

 

11.           Status of Converted Stock. If any shares of Designated Preferred Stockare converted pursuant to Section 5, such shares shall be returned totreasury and again become available for issuance by the Corporation. Uponreturn to treasury, 

 

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suchshares shall cease to be Designated Preferred Stock and will become PreferredStock to be issued with such rights, limitations and preferences as theCorporation’s board of directors may determine from time to time.

 

12            Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation(an affidavit of the registered holder shall be satisfactory) of the ownershipand the loss, theft, destruction or mutilation of any certificate evidencingshares of Designated Preferred Stock, and in the case of any such loss, theftor destruction upon receipt of indemnity reasonably satisfactory to theCorporation, or, in the case of any such mutilation upon surrender of suchcertificate, the Corporation shall (at its expense) execute and deliver in lieuof such certificate a new certificate of like kind representing the number ofshares of Designated Preferred Stock represented by such lost, stolen,destroyed or mutilated certificate and dated the date of such lost, stolen,destroyed or mutilated certificate, and dividends shall accrue on theDesignated Preferred Stock represented by such new certificate from the date towhich dividends have been fully paid on such lost, stolen, destroyed ormutilated certificate.

 

13.           Notices. Except as otherwise expressly provided, all notices referred toherein will be in writing and will be deemed properly delivered if eitherpersonally delivered or sent by overnight courier or mailed certified orregistered mail, return receipt requested, postage prepaid, to the recipient(a) in the case of any shareholder, at such holder’s address as it appears in thestock records of the Corporation (unless otherwise indicated by any suchholder), and (b) in the case of the Corporation, at its principal office. Anysuch notice shall be effective (i) if delivered personally or by telecopier,when received, (ii) if sent by overnight courier, when receipted for, and (iii)if mailed, when receipt is acknowledged or the date of the second attempteddelivery, whichever is earlier.”

 

II.            Date Amendment Adopted. This amendment to the Amended and RestatedArticles of Incorporation of MPC Corporation was adopted as of September 28,2007, 2007.

 

III.           Adoption of Amendment. This amendment to the Amended and RestatedArticles of Incorporation of MPC Corporation was duly adopted by the consent ofthe Board of Directors of the Corporation, without shareholder action, and noshareholder action is or was required for the adoption of this amendment to theAmended and Restated Articles of Incorporation of MPC Corporation.

 

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**Attachment To**

**Articles of Amendment to the**

**Amended and Restated Articles of Incorporation of**

**HyperSpace Communications, Inc.**

 

Article I of the Amended and Restated Articles ofIncorporation is amended in its entirety to read as follows:

 

“I. Entity Name. Thename of the corporation (hereafter the “Corporation”) is: MPC CORPORATION.”

 

The first sentence of Article IV of the Amended andRestated Articles of Incorporation is amended in its entirety to read asfollows:

 

“IV. Capital Stock. The Corporation is herebyauthorized to issue One Hundred-One Million (101,000,000) shares of capitalstock, of which One Hundred Million (100,000,000) shares shall be “Common Stock”(defined below) and One Million (1,000,000) shares shall be “Preferred Stock”(defined below).”

 

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**ARTICLES OF AMENDMENT**

**TO THE**

**AMENDED AND RESTATED**

**ARTICLES OF INCORPORATION**

**OF**

**HYPERSPACE COMMUNICATIONS, INC.**

 

 This document is entitled to be filed pursuantto sections 7-90-301 *et. seq.* and7-110-106 of the Colorado Revised Statutes:

 

FIRST: The domestic entityname of the corporation is:

 

HYPERSPACECOMMUNICATIONS, INC.

 

SECOND: The first sentenceof Article IV of the Amended and Restated Articles of Incorporation ofHyperSpace Communications, Inc., is hereby amended in its entirety to read asfollows:

 

IV. Capital Stock.The Corporation is hereby authorized to issue Fifty-one Million (51,000,000)shares of capital stock, of which Fifty Million (50,000,000) shares shall be “CommonStock” (defined below) and One Million (1,000,000) shares shall be “PreferredStock” (defined below).

 

THIRD: The name and addressof the individual who causes this document to be delivered for filing is: 

 

Mark Pougnet

HyperSpace Communications,Inc.

8480 E. Orchard Road

Suite 6600

Greenwood Village, CO 80111

303-566-6504

 

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**AMENDED AND RESTATED**

**ARTICLES OF INCORPORATION**

**OF**

**HYPERSPACE COMMUNICATIONS, INC.**

 

Pursuant to § 7-90-301 *et. seq.*, § 7-110-107 and § 7-90-304.5 ofthe Colorado Revised Statutes (“C.R.S.”), these Amended and Restated Articlesof Incorporation are delivered to the Colorado Secretary of State for filing.

 

I.              Entity Name. The name of the corporation (hereafter the “Corporation”) is:HYPERSPACE COMMUNICATIONS, INC. 

 

II.            Principal Place of Business. The address of the Corporation’s principalplace of business is: 8480 E. Orchard Road, Suite 6600, Denver, CO 80111. 

 

III.           Registered Agent. The address of the Corporation’s RegisteredOffice is Perkins Coie LLP, 1899 Wynkoop Street, Suite 700, Denver, CO 80202.The name of the Corporation’s Registered Agent at that office is Sean C.Stewart, Esq. 

 

IV.           Capital Stock. The Corporation is hereby authorized toissue Twenty Five Million (25,000,000) shares of capital stock, of whichFifteen Million (15,000,000) shares shall be “Common Stock” (defined below) andTen Million (10,000,000) shares shall be “Preferred Stock” (defined below). Thedesignations and preferences, conversions, and other rights, voting powers,restrictions, limitations as to distributions, qualifications, and terms andconditions of redemption of the shares of each class of stock are as follows: 

 

(a)           Preferred Stock

 

The corporation may divideand issue the Preferred Stock in series. Preferred shares of each series whenissued shall be designated to distinguish them from the shares of all otherseries. The Board of Directors hereby is expressly vested with authority todivide the class of Preferred Stock into series and to fix and determine therelative rights, limitations and preferences of the shares of any such seriesso established to the full extent permitted by these Articles of Incorporation andthe laws of the state of Colorado with respect to the following:

 

(i)            The number of shares to constitute suchseries, and the distinctive designations thereof;

 

(ii)           The rate and preference of any dividends and the time of payment of anydividends, whether dividends are cumulative and the date from which anydividends shall accrue;

 

(iii)          Whether shares may be redeemed and, if so, the redemption price and theterms and conditions of redemption;

 

(iv)          The amount payable upon shares in event of involuntary liquidation; 

 

(v)           The amount payable upon shares in event of voluntary liquidation; 

 

(vi)          Sinking fund or other provisions, if any, for the redemption orpurchase of shares; 

 

(vii)         The terms and conditions on which shares may be converted, if the sharesof any series are issued with the privilege of conversion;

 

(viii)        Voting rights, if any; and 

 

(ix)           Any other relative rights and preferences of shares of such series,including without limitation any restriction on an increase in the number ofshares of any series theretofore authorized and any limitation or restrictionof rights or powers to which shares of any future series shall be subject.

 

(b)           Common Stock

 

(i)            The holders of Common Stock shall have andpossess all rights as shareholders of the corporation except as such rights maybe limited by the preferences, privileges and voting powers, and therestrictions and limitations of the preferred stock. All Common Stock, whenduly issued, shall be fully paid and nonassessable. The holders of Common Stockshall be 

 

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entitled to receive suchdividends as may be declared from time to time by the Board of Directors.

 

(ii)         Each shareholder of record shall have one vote for each share of CommonStock standing in his name on the books of the corporation and entitled tovote, except that in the election of directors each shareholder shall have asmany votes for each share of Common Stock held by him as there are directors tobe elected and for whose election the shareholder has a right to vote.

 

V.          Cumulative Voting. The shareholders shall not be entitled touse cumulative voting in the election of Directors. 

 

VI.         Classified Board of Directors. The directors of the Corporation shall bedivided into three classes, each class to consist, as nearly as may be, ofone-third of the number of directors then constituting the whole board ofdirectors. The directors of the first class shall be elected for a term toexpire at the first annual meeting of shareholders after their election, thedirectors of the second class shall be elected for a term to expire at thesecond annual meeting of shareholders after their election, and the directorsof the third class shall be elected for a term to expire at the third annualmeeting of shareholders after their election. At each annual meeting ofshareholders at which the terms of a class of directors expires, theirsuccessors shall be elected to hold office until the third succeeding annualmeeting of shareholders. 

 

VII.       Director and Officer Liability. To the fullest extent permitted by the Colorado Business CorporationAct, as the same exists or may hereafter be amended, a director or officer ofthe Corporation shall not be liable to the Corporation or its shareholders formonetary damages for breach of fiduciary duty as a director or officer. 

 

VIII.      Indemnification. TheCorporation shall indemnify any person and his estate and personalrepresentative against all liability and expense incurred by reason of theperson being or having been a director or officer of the Corporation to thefull extent and in any manner that directors may be indemnified under theColorado Business Corporation Act, as in effect at any time. The Corporationshall also indemnify any person who is serving or has served the Corporation asdirector, officer, employee, or agent, and that person’s estate and personalrepresentative, to the extent and in the manner provided in any bylaw,contract, resolution of the shareholders or directors, or otherwise, so long assuch provision is legally permissible. 

 

IX.        No Action By Unanimous Written Consent of the Shareholders. Any action required or permitted to betaken at a meeting of shareholders of the Corporation must be effected at aduly called annual or special meeting of the shareholders of the Corporation,and the ability of shareholders to act by unanimous written consent is herebyspecifically denied 

 

X.          Shareholder Approval of Amended and RestatedArticles of Incorporation.These Amended and Restated Articles of Incorporation were approved and adoptedby the shareholders of the Corporation, and the number of votes cast forapproval and adoption of these Amended and Restated Articles of Incorporationby each voting group entitled to vote separately on the amendment andrestatement was sufficient for approval by that voting group. 

 

Notice:

 

Causing this document to bedelivered to the Secretary of State for filing shall constitute the affirmationor acknowledgement of each individual causing such delivery, under penalties ofperjury, that the document is the individual’s act and deed, or that theindividual in good faith believes the document is the act and deed of theperson on whose behalf the individual is causing the document to be deliveredfor filing, taken in conformity with the requirements of Part 3 of Article 90of Title 7, C.R.S., the constituent documents, and the organic statutes, andthe individual in good faith believes the facts stated in the document are trueand the document complies with the requirements of that Part, the constituentdocuments, and the organic statutes.

 

This perjury notice appliesto each individual who causes this document to be delivered to the Secretary ofState, whether or not such individual is named in the document as one who hascaused it to be delivered.

 

XI.        Delivery for Filing.The name(s) and address(es) of the individual(s) causing this document to bedelivered for filing: 

 
|     | Name         |    |    | Address                      |
|--------------------|--------------|--------------|--------------|------------------------------|
|          | Mark Pougnet |    |    | 8480 E. Orchard Rd           |
|          |    |    |    | Suite 6600                   |
|          |    |    |    | Greenwood Village, CO  80111 |

 

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