Exhibit 4.1
Pursuant to Rule 601 4.v attached is the following Certificate to set forth
designations, voting powers, preferences, limitations, restrictions, and
relative rights of Series B 6% cumulative convertible preferred stock, $5.00
par value per share.
EXHIBIT 4.1 to Form 10-Q Filed March 13, 1998
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CERTIFICATE TO SET FORTH DESIGNATIONS, VOTING POWERS,
PREFERENCES, LIMITATIONS, RESTRICTIONS, AND RELATIVE
RIGHTS OF SERIES B 6% CUMULATIVE CONVERTIBLE
PREFERRED STOCK, $5.00 PAR VALUE PER SHARE
It is hereby certified that:
I. The name of the corporation is Butler National Corporation (the
"Corporation"),a Delaware corporation.
II. Set forth hereinafter is a statement of the voting powers,
preferences, limitations, restrictions, and relative rights of shares of
Series B 6% Cumulative Convertible Preferred Stock hereinafter designated as
contained in a resolution of the Board of Directors of the Corporation
pursuant to a provision of the Articles of Incorporation of the Corporation
permitting the issuance of said Series B 6% Cumulative Convertible Preferred
Stock by resolution of the Board of Directors:
Series B 6% Cumulative Convertible Preferred Stock, $5.00 par value
1. Designation: Number of Shares The Corporation shall have 3,000
shares designated as Series B 6% Cumulative Convertible Preferred Stock, $5.00
par value, as part of the authorized class of preferred shares (the "Series B
Preferred Stock"). Each share of Series B Preferred Stock shall have a stated
value equal to $1,000 (as adjusted for any stock dividends combinations or
splits with respect to such shares)(the"Stated Value").
2. Dividends.
(a) The holders of outstanding shares of Series B Preferred
Stock shall be entitled to receive preferential dividends in cash out of any
funds of the Corporation legally available at the time for declaration of
dividends before any dividend or other distribution will be paid or declared
and set apart for payment on any shares of any Common Stock or other class of
stock junior to the Series B Preferred Stock, including Series A Preferred
Stock (the Common Stock and such junior stock being hereinafter collectively
the "Junior Stock") at the rate of 6% simple interest per annum on the Stated
Value per share payable quarterly when as and if declared; provided however
that dividend payments may be made in the sole discretion of the Board of
Directors of the Corporation in additional fully paid and non-assessable
shares of Series B Preferred Stock at a rate of one share of Series B
Preferred Stock for each $1,000 of such dividend not paid in cash, and the
issuance of such additional shares shall constitute full payment of such
dividend.
(b) The dividends on the Series B Preferred Stock at the rates
provided above shall be cumulative whether or not earned so that if at any
time full cumulative dividends at the rate aforesaid on all shares of the
Series B Preferred Stock then outstanding from the date from and after which
dividends thereon are cumulative to the end of the quarterly dividend period
next preceding such time shall not have been paid or declared and set apart
for payment, or if the full dividend on all such outstanding Series B
Preferred Stock for the then current dividend period shall not have been paid
or declared and set apartment for payment, the amount of the deficiency shall
be paid or declared and set apart for payment (but without interest thereon)
before any sum shall be set apart for or applied by the Corporation or a
subsidiary of the Corporation to the purchase redemption or other acquisition
of the Stock ("Parity Stock") and before any dividend or other distribution
shall be paid or declared and set apart for payment on any Junior Stock and
before any sum shall be set aside for or applied to the purchase, redemption
or other acquisition of Junior Stock.
(c) Dividends on all shares of the Series B Preferred Stock
shall begin to accrue and be cumulative from and after the date of issuance
thereof A dividend period shall be deemed to commence on the day following a
quarterly dividend payment date herein specified and to end of the next
succeeding quarterly dividend payment date herein specified.
3. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding-up of the
Corporation, whether voluntary or involuntary, the holders of the Series B
Preferred Stock shall be entitled to receive before any payment or
distribution shall be made on the Junior Stock, out of the assets of the
Corporation available for distribution to stockholders, the Stated Value per
share of Series B Preferred Stock and all accrued and unpaid dividends to and
including the date of payment thereof. Upon the payment in full of all amounts
due to holders of the Series B Preferred Stock of the holders of the Common
Stock of the Corporation and any other class of Junior Stock shall receive all
remaining assets of the Corporation legally available for distribution. If the
assets of the Corporation available for distribution to the holders of the
Series B Preferred Stock shall be insufficient to permit payment in full of
the amounts payable as aforesaid to the holders of Series B Preferred Stock
upon such liquidation, dissolution or winding-up, whether voluntary or
involuntary, then all such assets of the Corporation shall be distributed to
the exclusion of the holders of shares of Junior Stock ratably among the
holders of Series B Preferred Stock.
(b) Neither purchase nor the redemption by the Corporation of
shares of any class of stock nor the merger nor consolidation of the
Corporation with or into any other corporation or corporations nor the sale or
transfer by the Corporation of all or any part of its assets shall be deemed
to be a liquidation, dissolution or winding-up of the Corporation for the
purposes of this paragraph 3.
4. Conversion into Common Stock. Shares of Series B Preferred Stock
shall have the following conversion rights and obligations:
(a) Subject to the further provisions of this paragraph 4, each
holder of shares of Series B Preferred Stock shall have the right at any time
and from time to time after forty (40) days' from the date on which a share of
Series B Preferred Stock was issued, to convert some or all such shares into
fully paid and non-assessable shares of Common Stock of the Corporation (as
defined in paragraph 4(i) below) determined in accordance with the Conversion
Rate. provided in paragraph 4(b) below (the "Conversion Rate"); provided, that
the aggregate Stated Value to be converted shall be at least $25,000 (unless
if at the time of such conversion the aggregate Stated Value of all shares of
Series B Preferred Stock registered to the Holder is less than $25,000, then
the whole amount may be converted).
(b) The number of shares of Common Stock issuable upon
conversion of each share' of Series B Preferred Stock shall equal (I) the sum
of (A) the Stated Value per share and (B) accrued and unpaid dividends on such
share, divided by (ii) the Conversion Price. The Conversion Price shall be
equal to the lesser of- (i) the average of the Closing Bid Price (as
hereinafter defined) of the Corporation's Common Stock for the five (5)
trading days immediately preceding the date of issuance of the Series B
Preferred Stock; or (ii) seventy percent (70%) of the 'average of the Closing
Bid Price for the five trading days immediately preceding conversion of the
Series B Preferred Stock. The Closing Bid Price shall mean the closing bid
price of the Corporation's Common Stock as reported from the NASDAQ SmallCap
Market (or if not reported by NASDAQ as reported by such other exchange or
market where traded).
(c) The bolder of any certificate for shares of Series B
Preferred Stock desiring to e9nvert any of such shares may give notice of its
decision to convert the shares into common stock by telecopying an executed
and completed notice of conversion to the
Corporation and delivering within three business days thereafter, the original
notice of conversion and the certificate for the Preferred Stock properly
endorsed for or accompanied by duly executed instruments of transfer (and such
other transfer papers as said Transfer Agent may reasonably require) to the
Corporation. Each date on which a notice of conversion is telecopied to and
received by the Corporation in accordance with the provisions hereof shall be
deemed a Conversion Date. The Corporation will transmit the certificates
representing the shares of common stock issuable upon conversion of any
Preferred Stock (together with the Preferred Stock representing the shares not
converted) to the Holder via express courier, or otherwise, for receipt by the
holder within three business days after receipt by the Corporation of the
original notice of conversion and the Preferred Stock representing the shares
to be converted. The holder of the shares so surrendered for conversion shall
be entitled to receive (except as otherwise provided herein) a certificate or
certificates which shall be expressed to be fully paid and non-assessable for
the number of shares of Common Stock to which such stockholder shall be
entitled upon such conversion registered in the name of such holder or in such
other name or as such stockholder in writing may specify. In the case of any
Series B Preferred Stock which is converted in part only the holder of shares
of Series B Preferred Stock shall upon delivery of the certificate or
certificates representing Common Stock also receive a new share certificate
representing the unconverted portion of the shares of Series B Preferred
Stock. 'Nothing herein shall be construed to give any holder of Series B
Preferred Stock surrendering the same for conversion the right to receive any
additional shares of Common Stock or other property which results from an
adjustment in conversion rights under the provision of paragraph (d) or (e) of
this paragraph 4 until holders of Common Stock are entitled to receive the
shares or other property giving rise to tile adjustment.
In the case of the exercise of the conversion rights set forth in
paragraph 4(a) the conversion privilege shall be deemed to have been exercised
and the shares of Common Stock issuable upon such conversion shall be deemed
to have been issued upon the date of receipt by such Transfer Agent for
conversion of the certificate for such shares of Series B Preferred Stock. The
person or entity entitled to receive Common Stock issuable upon such
conversion shall, on the "date such conversion privilege is deemed to have
been exercised and thereafter, be treated for all purposes as the record
holder of such Common Stock and shall on the same date cease to be treated for
any purpose as the record holder of such shares of Series B Preferred St6ck to
be converted.
Notwithstanding the foregoing, if the stock transfer books are closed on
the date such shares are received by the Transfer Agent, the conversion
privilege shall be deemed to have been exercised and the person or entity
shall be treated as a record holder of shares 6f Common Stock on the next
succeeding date on which the transfer books are open, but the Conversion Rate
shall be that in effect on the date such conversion privilege was exercised.
The Corporation shall not be required to deliver certificates for shares of
its Common Stock or new certificates for unconverted shares of its Series B
Preferred Stock while the stock transfer books for such respective classes of
stock are duly closed for any purpose; but the right of surrendering shares of
Series B Preferred Stock for conversion shall not be suspended during any
period that the stock transfer books of either of such classes of stock are
closed.
Upon the conversion of any shares of Series B Preferred Stock no
adjustment or payment shall be made with respect to such convened shares on
account of any dividend on shares of such stock or on account of any dividend
on the Common Stock, except that the holder of such converted shares shall be
entitled to be paid any dividends declared on shares of Common Stock after
conversion thereof.
The Corporation shall not be required in connection with any conversion
of Series B Preferred Stock to issue a fraction of a share of its Common Stock
nor to deliver any stock certificate representing a fraction thereof For
administrative efficiency and simplicity, in the event the number of shares
issuable to a shareholder results in a fractional share, said number shall be
rounded up to the next higher whole number of shares. No cash shall be paid
for any fractional share.
(d) The Conversion Rate shall be subject to adjustment from time
to time as follows:
(i) In case the Corporation shall at any time (A)
declare any dividend or distribution on its Common Stock or other securities
of the Corporation other than the Series B Preferred Stock, (B) split or
subdivide the outstanding Common Stock, (C) combine the outstanding Common
Stock into a smaller number of shares, or (I)) issue by reclassification of
its Common Stock any shares or other securities of the Corporation, then in
each such event the Conversion Rate shall be adjusted proportionately so that
the holders of Series B Preferred Stock shall be entitled to receive the kind
and number of shares or other securities of the Corporation which such holders
would have owned or have been entitled to receive after the happening of any
of the events described above had such shares of Series B Preferred Stock been
converted immediately prior to the happening of such event (or any record date
with respect thereto). Such adjustment shall be made whenever any of the
events listed above shall occur. An adjustment made to the Conversion pursuant
to this paragraph 4(d)(i) shall become effective immediately after the
effective date of the event retroactive to the record date, if any, for the
event.
(e) The Conversion Rate shall also be subject to adjustment from
time to time as follows:
(i) In case of any merger of the Corporation with or into
any other corporation (other than a merger in which the Corporation is the
surviving or continuing corporation and which does not result in any
reclassification, conversion, or change of the outstanding shares of Common
Stock) then as part of such merger lawful provision shall be made so that
holders of Series B Preferred Stock shall thereafter have the right to convert
each share of Series B Preferred Stock into the kind and amount of shares of
stock and/or other securities or property receivable upon such merger by a
holder of the number of shares of Common Stock into which such shares of
Series B Preferred Stock might have been converted immediately prior to such
consolidation or merger. Such provision shall also provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in paragraph (d) of this paragraph 4. The foregoing provisions of
this paragraph 4(e) shall similarly apply to successive mergers.
(ii) In case of any sale or conveyance to another person or
entity of the property of the Corporation as an entirety, or substantially as
an entirety, in connection with which shares or other securities or cash or
other property shall be issuable, distributable, payable, or deliverable for
outstanding shares of Common Stock; then, unless the right to convert such
shares shall have terminated, lawful provision shall be made so that the
holders of Series B Preferred Stock shall thereafter have the right to convert
each share of the Series B Preferred Stock into the kind and amount of shares
of stock or other securities or property that shall be issuable,
distributable, payable, or deliverable upon such sale or conveyance with
respect to each share of Common Stock immediately prior to such conveyance.
(f) : Subject to the provisions of this section, if the Corporation
at any time shall issue any shares of Common Stock prior to the conversion of
the entire Stated Value of the Series B Preferred Stock (otherwise than as:
(i) provided in paragraphs (d) and (e) of this paragraph 4; or (ii) pursuant
to options, warrants, or other obligations to issue shares, outstanding on the
date hereof as described in public filings made by the Corporation prior to
the date hereof with the Securities and Exchange Commission and a warrant to
be issued to European Equity Partners, Inc. or its designees, 9ptions to
Michael Markow, and other than the recent increase in the number of options
available for issuance under the Corporation's option plans; [(i) and (ii)
above, are hereinafter referred to as the "Existing Option Obligations"] for a
consideration less than the Conversion Price that would be in effect at the
time of such issue, then, and thereafter successively upon each such issue,
the Conversion Price shall be reduced as follows (i) the number of shares of
Common Stock outstanding immediately prior to such issue shall be multiplied
by the Conversion Price in effect at the time of such issue and the product
shall be added to the aggregate consideration, if any, received by the
Corporation upon such issue of additional shares of Common Stock; and (ii) the
sum so obtained shall be divided by the number of shares of Common Stock
outstanding immediately after such issue. Except for the Existing Option
Obligations and options that may be issued under any employee incentive stock
option and/or any qualified stock option plan adopted by the Company, for
purposes of this adjustment, the issuance of any security of the Corporation
carrying the right to convert such seurity into shares of Common Stock or of
any warrant, right or option to purchase Common Stock shall result in an
adjustment to the Conversion Price upon the issuance of shares of Common Stock
upon exercise of such conversion or purchase rights.
(g) Whenever the number of shares to be issued upon conversion
of the Series B Preferred Stock is required to be adjusted as provided in this
paragraph 4, the Corporation shall forthwith compute the adjusted number of
shares to be so issued and prepare a certificate setting forth such adjusted
conversion amount and the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Transfer Agent for the Series B
Preferred Stock and the Common Stock; and the Corporation shall mail to each
holder of record of Series B Preferred Stock notice of such adjusted
conversion price.
(h) In case at any time the Corporation shall propose:
(i) To pay any dividend or distribution payable in shares
upon its Common Stock or to make any distribution (other than cash dividends)
to the holders of its Common Stock; or
(ii) To offer for subscription to the holders of in Common
Stock any additional shares of any class or any other rights; or
(iii) Any capital reorganization or reclassification of its
shares or the merger of the Corporation with another corporation (other than a
merger in which the Corporation is the surviving or continuing corporation and
which does not result in any reclassification, conversion, or change of the
outstanding shares of Common Stock);or
(iv) The voluntary dissolution, liquidation or winding-up
of the Corporation;
then, and in any one of more of said cases, the Corporation shall cause at
least fifteen (15) days prior, notice of the date on which (A) the books of
the Corporation shall close or a record be taken for such stock dividend,
distribution, or subscription rights, or (B) such capital reorganization,
reclassification, merger, dissolution, liquidation or winding-up shall take
place, as the case may be, to be mailed to the Transfer Agent for the Series B
Prefwed Stock and for the Common Stock and to the holders of record of the
Series B Preferred Stock.
(i) So long as any shares of Series B Preferred Stock shall
remain outstanding and the holders thereof shall have the right to convert the
same in accordance with provisions of this paragraph 4 the Corporation shall
at all times reserve from the authorized and unissued shares of its Common
Stock a sufficient number of shares to provide for such conversions.
(j) The term Common Stock as used in this paragraph 4 shall mean
Common Stock of the Corporation as such stock is constituted at the date of
issuance thereof or as it may from time to time be changed or shares of stock
of any class of other securities and/or property into which the shares of
Series B Preferred Stock shall at any time become convertible pursuant to the,
provisions of this paragraph 4.
(k) The Corporation shall pay the amount of any and all
issue taxes (but not income taxes) which may be imposed in respect of any
issue or delivery of stock upon the conversion of any shares of Series B
Preferred Stock, but all transfer taxes and income taxes that may-be payable
in respect of any change or ownership of Series B Preferred Stock or any
rights represented thereby or of stock receivable upon conversion thereof
shall be paid by the person or persons surrendering such stock for conversion.
5. Mandatory Conversion.
(a) Subject to the provisions of paragraph 5(e) below, the
shares of Series B Preferred Stock not previously convened into shares of
Common Stock shall be converted into share's of Common Stock without further
action of the Holder on the date that is two years from the date of issuance
thereof; at the Conversion Price and on the conversion terms specified in
paragraph 4(b).
(b) Notice of conversion of Series U Preferred Stock by the
Corporation pursuant to this paragraphs shall be given by mail or in such
other manner as may be' prescribed by resolution of the Board not less than
thirty (30) days prior to the applicable date of mandatory conversion (the
"Mandatory Conversion Date"). As applicable, the notice shall specify the
number of shares to be converted, the date fixed for conversion, and the
conversion price per share.
(c) The holder of any certificate for shares of Series B
Preferred Stock that is converted pursuant to this Section 5 shall surrender
such certificate at the principal office of any transfer agent for said stock
(the "Transfer Agent") properly endorsed for or accompanied by duly executed
instruments of transfer (and such other transfer papers as said Transfer Agent
may reasonably require). The holder of the shares so surrendered for
conversion shall be entitled to receive (except as otherwise provided herein)
a certificate or certificates which shall be expressed to be fully paid and
non-assessable for the number of shares of Common Stock to which such
stockholder shall be entitled upon such conversion registered in the name of
such holder or in such other name or names as such stockholder in writing may
specify.
(d) On and after the applicable Mandatory Conversion Date
(subject to paragraph 5(e) below), and notwithstanding that any certificate
for shares of Series B Preferred Stock so called for conversion shall not have
been surrendered for cancellation, all dividends on the Series B Preferred
Stock called for conversion shall cease to accrue and the shares represented
thereby shall no longer be deemed outstanding and all rights of the holders
thereof as stockholders of the Corporation shall cease and terminate, except
the right to receive the shares of Common Stock upon conversion as provided
herein.
(e) In no event shall a Mandatory Conversion occur at any
time unless the Common Stock to be delivered upon conversion will be
unlegended, freely tradable, and freely transferable on the transfer books of
the Corporation.
6. Event of Default. The occurrence of any of the following
events of default ("Event of Default") including a Material Adverse Event, as
defined in section 5(g), shall cause the dividend rate of 6% described in
paragraph 4 hereof to become 16% from and after ten (10) days after the
occurrence of such event and at the option of the Holder, the Series B'
Preferred Stock shall be redeemed by the Corporation at its Stated Value and
accrued dividends.
(a) The Corporation fails to pay any dividend payment required
to be paid pursuant to the terms of paragraph 2 hereof and such failure
continues for a period of ten (10) days after written notice to the
Corporation from the holder.
(b) The Corporation breaches any covenant or other term or
condition of the Subscription Agreement entered into between the Corporation
and holder relating to Series B Preferred Stock (the "Subscription Agreement")
and such breach continues for a period of seven (7) days after written notice
to the Corporation from the holder.
(c) Any representation or warranty of the Corporation
made in the Subscription Agreement, or in any agreement, statement or
certificate given in writing pursuant thereto shall be false or misleading.
(d) The Corporation shall make an assignment for the
benefit of creditors, or apply for or consent to the appointment of a receiver
or trustee for it or for a substantial part of its property or business; or
such a receiver or trustee shall otherwise be appointed.
(e) Any money judgment, writ or similar process shall be
entered or filed against the Corporation or any of its property or other
assets for more than $100,000, and shall remain unvacated, unbonded or
unstayed for a period of forty-five (45) days.
(f) Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings or relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against the Corporation.
(g) The occurrence of a Material Adverse Event involving
the Corporation shall mean (i) delisting of the Common Stock from the NASDAQ
SmallCap Market; (ii) a concession by the Company of a default under any one
or more obligations in an aggregate monetary amount in excess of $100,000; and
(iii) an SEC stop trade order or NASDA,Q trading suspension, if either applies
for a period of ten days or longer.
(h) The Corporation's failure to timely deliver Common Stock
to the holder pursuant to paragraph 4 hereof and section 9 of the Subscription
Agreement in the form of free-trading, unlegended shares of Common Stock
freely transferable on the books and records of the Corporation, and with such
opinions and approvals so that the Common Stock will be immediately
transferable by Corporation's transfer agent.
7. Voting Rights. The shares of Series B Preferred Stock
shall not have voting rights.
8. Status of Converted Stock. In case any shares of Series B
Preferred Stock shall be converted to paragraph 4 hereof or otherwise
repurchased or reacquired, the shares so converted, or reacquired shall resume
the status of authorized but unissued shares of Preferred Stock and shall no
longer be designated as Series B Preferred Stock.
9. Additional Restrictions. For as long as any shares of the
Series B Preferred Stock are outstanding, the Corporation will not issue any
preferred stock that is senior to the Series B Preferred Stock, and will not
amend the terms of the Series B Preferred Stock without the consent of the
holders of the Series B Preferred Stock.
Signed on this _________day of December, 1997.
BUTLER NATIONAL CORPORATION
/s/ Clark D. Stewart
By:________________________
Clark D. Stewart
President and CEO
ATTEST:
/s/ Edward J. Matukewicz
___________________________
Assistant Secretary