Exhibit 3.4
ARTICLES OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION
OF
NOBLE ROMAN'S, INC.
---------
Pursuant to I.C. 23-1-29-2 of
the Indiana Business Corporation Law
The undersigned officer of Noble Roman's, Inc. (the "Corporation"), An
Indiana corporation incorporated on September 21, 1972 and existing under and
pursuant to the provisions of the Indiana Business Corporation Law, as amended,
desiring to give notice of corporate action effectuating amendment of certain
provisions of its Articles of Incorporation, does hereby certify the following
facts:
FIRST: Pursuant to the authority vested in the Board of Directors of the
Corporation in accordance with the provisions of its Articles of Incorporation,
as amended, a series of Preferred Stock of the Corporation be mid it is hereby
created, pursuant to which Four Million Nine Hundred Twenty-Nine Thousand Two
Hundred Seventy-Five (4,929,275) shares of the Preferred Stock shall be
designated Series A Convertible Preferred Stock (the "Preferred Shares") and the
powers, preferences and relative, participating, optional and other special
rights of such Preferred Shares, and the qualifications, limitations or
restrictions thereof are as follows:
Section 1. Liquidation.
1.1 Preference. Upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, each holder of Preferred Shares will be
entitled to be paid, before my distribution or payment is made upon any Common
Shares, Common Share Equivalents or any other securities which may be
subordinated to the Preferred Shares with respect to the liquidation preference
set forth in this Section 1.1, an amount in cash or other assets or property
equal to the aggregate Liquidation Value of all of such holder's Preferred
Shares. After payment of such aggregate Liquidation Value in respect of the
Preferred Shares, the entire remaining assets and funds of the Corporation
legally available for distribution, if any, shall be distributed among the
holders of Common Shares in proportion to the Common Shares then held by them.
1.2 Insufficient Funds. If upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the assets available for
distribution to the shareholders of the Corporation (the "Distributable Funds")
are insufficient to permit the payment to the holders of Preferred Shares of the
fall preferential amount set forth in Section 1.1 above, then the Distributable
Funds shall be distributed to the holders of Preferred Shares, ratably in
proportion to the number of Preferred Shares held by each such holder on the
date of liquidation, dissolution or winding up of the Corporation.
1.3 Notice. Unless such liquidation, dissolution or winding up of the
Corporation is waived by the holders of a majority of the Preferred Shares then
outstanding in writing pursuant to Section 1.4, the Corporation will mail
written notice of such liquidation, dissolution or winding up not less than 30
days prior to the payment date stated therein to each record holder of Preferred
Shares.
1.4 Other Liquidation Events. Any (a) sale or issuance or series of sales
and/or issuances of shares of the Corporation's capital stock by the Corporation
or any, holders thereof, including without limitation pursuant to any merger,
consolidation or other Organic Change, which results in any Person or group of
affiliated Persons (other than the holders of Common Shares ad Preferred Shares
as of the date of the Closing under the Securities Purchase Agreement) owning
capital stock of the Corporation possessing the voting power (under ordinary
circumstances) to elect a majority of the Board, (b) Organic Change in which the
stockholders of the Corporation immediately prior to the transaction possess
less than 50% of the voting power of the surviving entity (or its parent)
immediately after the transaction, (c) sale or transfer of all or substantially
all of the assets of the Corporation, or of the Corporation and its Subsidiaries
on a consolidated basis, in any transaction or series of related transactions,
(d) Insolvency Event, (e) refinancing, recapitalization or restructuring of the
Corporation's debt or equity, or (f) taking of any action described in Section
8.2 without obtaining the necessary consent set forth in such Section, shall be
deemed to be a liquidation, dissolution or winding up for purposes of Section
1.1 above, resulting in the redemption of the Preferred Shares upon payment of
the aggregate Liquidation Value therefor in accordance with Section 1.1, unless
the holders of a majority of the Preferred Shares then outstanding elect by
written notice to the Corporation that such event shall not be deemed a
liquidation.
Section 2. Dividends.
If at any time the Corporation pays guy dividends or makes any other
distributions with respect to the Common Shares, the Corporation shall pay at
such tune to each holder of Preferred Shares the dividends or other
distributions which such holder would have been entitled to receive bad such
holder converted all of its Preferred Shares into Common Shares on the date as
of which the holders of Common Shares of record entitled to such dividends or
other distributions were determined.
Section 3. Conversion.
3.1 Conversion Procedure.
(a) At any tame and from time to time, any holder of Preferred Shares may
convert all or any portion of the Preferred Shares held by such holder into the
number of Common Shares computed by (i) multiplying the number of Preferred
Shares to be converted by $1.00 and (ii) dividing the resulting product by the
Conversion Price then in effect (as determined in Section 3.2 below).
(b) Each conversion of Preferred Shares' will be deemed to have been
effected as of the close of business on the date on which the certificate or
certificates
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representing the Preferred Shares to be converted have been surrendered at the
principal office of the Corporation accompanied by a written request for
conversion. At such time as such conversion has been effected, the rights of the
holder of such Preferred Shares will cease and the Person or Persons in whose
name or names any certificate or certificates for Common Shares are to be issued
upon such conversion will be deemed to have become the holder or holders of
record of the Common Shares represented thereby.
(c) As soon as possible, but in no event longer than ten business days,
after a conversion, has been effected, the Corporation will deliver to the
converting holder:
(i) a certificate or certificates representing the number of Common
Shares issuable by reason of such conversion in such name or names and such
denomination or denominations as the converting holder has specified;
(ii) payment in an amount equal to the amount payable under Section
3.1 (f) below with respect to such conversion; and
(iii) a certificate representing any Preferred Shares which were
represented by the certificate or certificates delivered to the Corporation
in connection with such conversion but which were not converted.
(d) The issuance of certificates for Common Shares upon conversion of
Preferred Shares will be made without charge to the holders of such Preferred
Shares for any issuance tax in respect thereof or other cost incurred by the
Corporation in connection with such conversion and the related issuance of
Common Shares. Upon conversion of each Preferred Share, the Corporation will
take all such actions as are necessary in order to insure that the Common Shares
issuable with respect to such conversion will be validly issued, fully paid and
nonassessable.
(e) The Corporation will not close its books against the transfer of
Preferred Shares or Common Shares issued or issuable upon conversion of
Preferred Shares in any manner which interferes with the timely conversion of
Preferred Shares.
(f) If a fractional interest in a Common Share would, but for this Section
3.1(f), be deliverable upon any conversion of the Preferred Shares, the
Corporation shall, in lieu of delivering a fractional interest thereof, pay an
amount to the holder thereof equal to the Market Price of such fractional
interest as of time of conversion.
(g) The Corporation shall at all times reserve and keep available out of
its authorized but unissued Common Shares, solely for the purpose of issuance
upon the conversion of the Preferred Shares, such number of Common Shares
issuable upon the conversion of all outstanding Preferred Shares based upon the
Conversion Price then in effect. All Common Shares which are so issuable shall,
when issued, be duly and validly issued, My paid and nonassessable and free from
all taxes (other than taxes assessable
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on or against such holder), liens and charges. The Corporation shall take all
such actions as may be necessary to assure that all such Common Shares may be so
issued without violation of any applicable law or governmental regulation
applicable to the Corporation or generally applicable to transactions of such
type or any requirements of any domestic securities exchange upon which Common
Shares may be listed (except for official notice of issuance which shall be
immediately delivered by the Corporation upon each such issuance).
3.2 Conversion Price.
(a) Initial Conversion The initial Conversion Price will be $3.00. In order
to prevent dilution of the conversion rights granted to holders of Preferred
Shares hereunder, the Conversion Price will be subject to adjustment from time
to time pursuant to this Section 3.2 and Sections 3.4 and 3.5 below. For
purposes of this Section 3.2, the Corporation shall be deemed to have issued or
sold Common Shares as set forth in Section 3.3 below.
(b) Adjustment for Dilutive Events. If and whenever on or after February 8,
2000 the Corporation issues or sells, or in accordance with Section 3.3 below is
deemed to have issued or sold, any Common Shares for consideration per share
less than the Conversion Price in effect immediately prior to the time of such
issue or sale (a "Dilutive Event"), then forthwith upon the occurrence of any
such Dilutive Event the Conversion Price will be reduced so that the Conversion
Price in effect immediately following the Dilutive Event will equal the quotient
derived by dividing (i) the sum of (x) the product derived by multiplying the
Conversion Price in effect immediately prior to such Dilutive Event times the
number of Common Shares Deemed Outstanding immediately prior to such Dilutive
Event, plus (y) the consideration, if any, received by the Corporation pursuant
to such Dilutive Event, by (it) the number of Common Shares Deemed Outstanding
immediately after such Dilutive Event. As used in this Section 3.2(b) and in
Section 3.3 below, the term "Common Shares" includes Common Share Equivalents.
3.3 Common Shares Deemed Outstanding. For purposes of determining the
adjusted Conversion Price pursuant to Section 3.2(b) above, each of the
following events shall be deemed to be an issuance and sale of Common Shares by
the Corporation and the "Common Shares Deemed Outstanding"' shall be the number
of Common Shares actually issued and outstanding plus the number of Common
Shares deemed outstanding as a result of the following events as set forth
below.
(a) Issuance of Rights, Warrants or Options. If after February 8, 2000 (i)
the Corporation in any manner grants any rights, warrants or options to
subscribe for or to purchase Common Shares or any securities convertible into or
exchangeable for Common Shares (such rights or options referred to herein as
"Options" and such convertible or exchangeable stock or securities referred to
herein as "Convertible Securities") and (ii) the Price Per Share of Common
Shares issuable upon the exercise of such Options, or upon conversion or
exchange of such Convertible Securities is less than
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the Conversion Price in effect immediately prior to the time of the granting of
such Options, then (x) the total maximum amount of such Common Shares issuable
upon the exercise of such Options or upon conversion or exchange of the total
maximum number of Convertible Securities issuable upon the exercise of such
Options will be deemed to be Common Shares issued and sold by the Corporation,
(y) the consideration received pursuant to die Dilutive Event will equal the
Price Per Share times the number of Common Shares so deemed issued and sold by
the Corporation and (z) the number of Common Shares so deemed issued and sold by
the Corporation shall be included in the Common Shares Deemed Outstanding. for
purposes of this Section 3.3(a), the "Price Per Share" will be determined by
dividing (i) the total amount, if any, received or receivable by the Corporation
as consideration for the granting of such Options, plus the minimum aggregate
amount of additional consideration payable to the Corporation upon exercise of
all such Options, plus in the can of such Options which relate to Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable to the Corporation upon the issuance or sale of such Convertible
Securities and the conversion or exchange thereof, by (ii) the total maximum
number of Common Shares issuable upon the exercise of such Options or upon the
conversion or exchange of all such Convertible Securities issuable upon the
exercise of such Options. No further adjustment of the Conversion Price will be
made when Convertible Securities are actually issued upon the exercise of such
Options or when Common Shares are actually issued upon the exercise of such
Options or the conversion or exchange of such Convertible Securities.
(b) Issuance of Convertible Securities. If after February 9, 2000 (i) the
Corporation in any manner issues or sells any Convertible Securities and (ii)
the Price Per Share of Common Shares issuable upon such conversion or exchange
is less than the Conversion Price in effect immediately prior to the time of
such issue or sale, then (A) the maximum number of Common Shares issuable upon
conversion or exchange of such Convertible Securities will be deemed to be
Common Shares issued and sold by the Corporation, (B) the consideration received
pursuant to the Dilutive Event will equal the Price Per Share times the number
of Common Shares so deemed issued mid sold by the Corporation and (C) the number
of Common Shares so deemed issued and sold by the Corporation shall be included
in the Common Shares Deemed Outstanding. For the purpose of this Section 3.3(b),
the "Price Per Share" will be determined by dividing (i) the total amount
received or receivable by the Corporation as consideration for the issue or sale
of such Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the conversion or
exchange thereof, by (ii) the total maximum number of Common Shares issuable
upon the conversion or exchange of all such Convertible Securities. No further
adjustment of the Conversion Price will be made when Common Shares are actually
issued upon the conversion or exchange of such Convertible Securities, and if
any such issue or sale of such Convertible Securities is made upon exercise of
any Options for which adjustments to the Conversion Price had been or are to be
made pursuant to Section 3.3(a) above, no further adjustment of the Conversion
Price will be made by reason of such issue or sale.
(e) Change in Option Price or Conversion Rate, Expiration of Options.
Convertible Securities. If at any time there is a change in (i) the purchase
price provided
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for in any Options, (ii) the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities, or (iii) the rate at which
any Convertible Securities are convertible into or exchangeable for Common
Shares, then, the Conversion Price in effect at the time of such change will be
readjusted to the Conversion Price which would have been in effect had those
Options or Convertible Securities still at the time of such change provided for
such changed purchase price, Outstanding additional consideration or changed
conversion rate, as the case may be, at the time such Options or Convertible
Securities were initially granted, issued or sold-, provided that if such
adjustment would result in an increase of the Conversion Price in effect, such
adjustment will not be effective until 30 days after written notice thereof has
been given by the Corporation to all holders of the Preferred Shares. Any
adjustment of the Conversion Price pursuant to Section 3.2(b) that relates to an
Option or Convertible Security shall be disregarded to the extent that the right
to exercise such Option or convert such Convertible Security expires or is
canceled without being exercised, so that the, Conversion Price in effect.
immediately after such expiration or cancellation shall, be equal to the
Conversion Price in effect immediately prior to the time of the issue of the
expired or canceled Option or Convertible Security, with such additional
adjustments as would have been made to that Conversion Price had the expired or
canceled Option or Convertible Security not been issued.
(d) Calculation of Consideration Received. If any Common Shares, Option or
Convertible Security is issued or sold or deemed to have been issued or sold for
cash, the consideration received therefor or the Price Per Share, as the case
may be, will be deemed to be the net amount received or to be received,
respectively, by the Corporation therefor. In case any Common Shares, Options or
Convertible Securities are issued or sold for a consideration other than cash,
the amount of the consideration other than cash received by the Corporation or
the non-cash portion of the Price Per Share, as the case my be, will be the fair
market value of such consideration received or to be received, respectively, by
the Corporation, except where such consideration consists of securities, in
which case the amount of consideration received or to be received, respectively,
by the Corporation will be the Market Price thereof as of the date of receipt.
If any Common Shares, Options or Convertible Securities are issued in connection
with any merger in which the Corporation is the surviving corporation, the
amount of consideration therefor will be deemed to be the fair market value of
such portion of the net assets and business of the non-surviving corporation as
is attributable to such Common Shares, Options or Convertible Securities, as the
case may be. The fair market value of any consideration other than cash and
securities will be determined jointly by the Corporation and the holders of a
majority of the outstanding Preferred Shares. If such parties are unable to
reach agreement within a reasonable period of time, the fair market value of
such consideration will be determined by an independent appraiser jointly
selected by the Corporation and the holders of a majority of the outstanding
Preferred Shares; the cost of such appraiser shall be shared equally by the
Corporation and the holders of the Preferred Shares,
(e) Integrated Transactions. In case any Option is issued in connection
with the issuance or sale of other securities of the Corporation, together
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comprising one integrated transaction in which no specific consideration is
allocated to such Option by the parties thereto, the Option will be deemed to
have been issued for a consideration of $ 1.00.
(f) Treasury Shares. The number of Common Shares Deemed Outstanding at any
given time shall not include shares owed or held by or for the account of the
Corporation, and the disposition of any shares so owned or held shall be
considered an issuance or sale of Common Shares by the Corporation.
(g) Record Date. If the Corporation takes a record of the holders of Common
Shares for the purpose of entitling them (i) to receive a dividend or other
distribution payable in Common Shares, Options or in Convertible Securities or
(ii) to subscribe for or purchase Common Shares, Options or Convertible
Securities, then such record date will be deemed to be the date of the issuance
or sale of the Common Shares deemed to haw been issued or sold upon the
declaration of such dividend of upon the making of such other distribution or
the date of the granting of such right of subscription or purchase, as the case
may be.
(h) Exclusion. Notwithstanding the foregoing, the following shall not
constitute an issuance and sale of Common Shares by the Corporation for purposes
of section 3.2:
(i) Common Shares issued or issuable upon conversion of Preferred
shares;
(ii) Common Shares issued or issuable as a dividend or distribution on
Preferred Shares;
(iii) up to 365,750 Common Shares issued to directors, officers or
employees of, or consultants to, the Corporation pursuant to an agreement
of an option plan or purchase plan or other stock incentive program for
directors, officers, employees or consultants (other than Paul W. Mobley or
A. Scott Mobley) approved by the Board of Directors (the "Employee Stock
Options"), as adjusted for any stock dividend, stock split or other
recapitalization occurring after February 8, 2000;
(iv) Common Shares issued pursuant to the exercise Of any Option
(other than an Employee Stock Option) or conversion of any Convertible
Security issued and outstanding on or before February 9, 2000;
(v) Common Shares and Convertible Securities issued pursuant to (A)
that certain Securities Purchase Agreement dated as of February 9, 2000
between the Corporation and the other parties thereto, and (B) that certain
Securities Purchase Agreement dated as of April 30, 1999 between the
Corporation and the other parties thereto, including, without limitation,
additional Convertible securities issued pursuant to the term thereof in
lieu of interest and
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Common Shares issued upon conversion of any such Convertible Securities
(collectively, the "Investor Securities"); and
(vi) to the extent the Corporation declares a dividend or other
distribution with respect to its Common Shares generally and pays such
dividend or other distribution in the form of Common Shares, the Common
Shares issued or issuable by way of such dividend or other distribution
with respect to Common Shares excluded from the definition of Common Shares
Deemed Outstanding by this Section.
3.4 Subdivision or Combination of Common Shares. If the Corporation at any
time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding Common Shares into a greater
number of shares, the Conversion Price in effect immediately prior to such
subdivision will be proportionately reduced. If the Corporation at any time
combines (by reverse stock split or otherwise) one or more classes of its
outstanding Common Shares into a smaller number of shares, the Conversion Price
in effect immediately prior to such combination will be increased.
3.5 Organic Change.
(a) Corporation Survives. Upon the consummation of an Organic Change (other
than a transaction in which the Corporation is not the surviving entity) the
term of the Preferred Shares shall be deemed modified, without payment of any
additional consideration therefor, so as to provide that upon the conversion of
Preferred Shares following the consummation of such Organic Change, the holder
of such Preferred Shares shall have the right to acquire and receive (in lieu of
or in addition to, the Common Shares acquirable and receivable prior to the
Organic Change) such shares of stock, securities or assets as such holder would
have received if such holder had converted its Preferred Shares into Common
Shares immediately prior to such Organic Change, in each case giving effect to
any adjustment of the Conversion Price made after the daft of consummation of
the Organic Change. All other terms of the Preferred Shares shall remain in full
force and effect following such an Organic Change. The provisions of this
Section 3.5(a) shall similarly apply to successive Organic Changes.
(b) Corporation Does Not Survive. The Corporation shall not enter into an
Organic Change that is a transaction in which the Corporation is not the
surviving entity unless the surviving entity issues new securities, without
payment of any additional consideration therefor, with terms that provide that
upon the conversion of such securities following the consummation of such
Organic Change, the holder of such securities shall have the right to acquire
and receive (in lieu of or in addition to the Common Shares acquirable and
receivable prior to the Organic Change) such shares of stock, securities or
assets as such holder would have received if such holder had converted its
Preferred Shares into Common Shares immediately prior to such Organic Change, in
each case giving effect to any adjustment of the Conversion Price of such new
securities made after the date of consummation of the Organic Change on an
equivalent basis to the adjustments provided for the Preferred Shares Conversion
Price herein. All other terms
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of the new securities shall be equivalent to the terms of the Preferred Shares
provided for herein, The provisions of this Section 3.5(b) shall similarly apply
to successive Organic Changes.
3.6 Notices.
(a) Immediately upon any adjustment of the Conversion Price, the
Corporation shall give written notice thereof to all holders of Preferred Shares
specifying the Conversion Price in effect thereafter with respect to the
particular holder.
(b) The Corporation shall give written notice to all holders of Preferred
Shares at least five days prior to the date on which the Corporation closes its
books or takes a record for determining rights to vote with respect to any
Organic Change, dissolution or liquidation. The Corporation shall also give
written notice to the holders of Preferred Shares at least 20 days prior to the
date on which any Organic Change shall occur.
3.7 Certain Events. If any event similar to or of the type contemplated by
the provisions of this Section 3, but not expressly provided for by such
provisions, occurs, then the Board will make an appropriate and equitable
adjustment in the Conversion Price so as to protect the rights of the holders of
Preferred Shares; provided that no such adjustment will increase the Conversion
Price as otherwise determined pursuant to this Section 3 or decrease the number
of Common Shares issuable upon conversion of each Preferred Share.
Section 4. Purchase Rights
If at any time the Corporation grants, issues or sells any Options,
Convertible Securities or rights to purchase stock, warrants, securities or
other property pro rata to the record holders of Common Shares ("Purchase
Rights"), then each bolder of Preferred Shares shall be entitled to such
Purchase Rights, ratably in proportion to the number of Common Shares each such
holder would have held if each had converted all Preferred Shares held by it
into Common Shares on the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of Common Shares are to be determined for
the grant, issuance or sale of such Purchase Rights.
Section 5. Pre-emptive Rights.
If the Corporation authorizes the issuance and the of any Additional
Securities, the Corporation will offer to sell to the holders of Preferred
Shares, and each holder of Preferred Shares may elect to purchase, up to that
number of Additional Securities such that following such purchase, the holder is
able to maintain the same percentage ownership (on a fully-diluted basis) of the
outstanding Common Shares of the Corporation which such holder possessed by
virtue of its ownership of Preferred Shares (or Common Shares resulting from the
conversion thereof) immediately prior to the issuance and sale of the Additional
Securities. Holders of Preferred Shares will be entitled to purchase the
Additional Securities at the same price and upon the some terms as such
securities are being offered to any other Persons; provided that, if such
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Persons are to pay for such Additional Securities in whole or in part with
consideration other than cash, then the Board shall make a good faith
determination of the fair market value of such non-cash consideration and the
holders of the Preferred Shares will be entitled to pay cash equal to the fair
market value of the non-cash consideration such holders would otherwise pay
hereunder in the purchase of such Additional Securities. Notwithstanding the
foregoing, a holder of Preferred Shares will not be permitted to exercise its
rights under this Section 5 unless such holder agrees to purchase all securities
offered as a package or unit in the issuance of the Additional Securities. The
Corporation must give written notice of the issuance of Additional Securities,
which notice shall set forth the price and other terms of such issuance, to the
holders of Preferred Shares no later than 30 days prior to the issuance date of
the Additional Securities (the "Issuance Date"). Upon receipt of such notice,
the holders may exercise the right granted by this Section 5 by giving written
notice to the Corporation within 30 days following receipt of the aforesaid
notice, which written notice from a holder shall specify the number of
Additional Securities being purchased by such holder and be accompanied by a
cashier's or certified check in the full amount of the price for the Additional
Securities being purchased. The Corporation shall promptly make delivery to such
holders of certificates for the Additional Securities or other securities upon
execution of such documents and instruments as shall govern the issuance of such
Additional Securities or other securities. Notwithstanding the foregoing, if a
holder of Preferred Shares exercises its rights under this Section 5, such
holder shall not be required to purchase the Additional Securities unless and
until all other parties have purchased their Additional Securities. If a holder
of Preferred Shares who is not required to purchase Additional Securities
pursuant to the immediately preceding sentence exercises such holder's rights
under this Section 5 following the Issuance Date, then such holder shall be
deemed to have owned the Additional Securities purchased by it as of the
Issuance Date for the purpose of any benefits of ownership relating to such
Additional Securities, including the fight to receive cash or stock dividends
declared or other distributions, to participate in a merger or reorganization or
to reflect any reclassification of Additional Securities between the Issuance
Date and the date upon which such holder purchases the Additional Securities.
Section 6. Tag-Along Rights.
6.1 Notice of Purchase Offers. In the event any person holding Common
Shares constituting "restricted securities" under the Securities Act of 1933, as
amended (the "Securities Act"), and also being more than 20% of the Common
Shares of the Corporation ("Central, Shareholder"), decides to sell any of his,
her or its Common Shares pursuant to a bona fide written offer received or sent
by such person (collectively a "Purchase Offer"), then such Central Shareholder
shall promptly notify each holder of Preferred Shares of the terms and
conditions of such Purchase Offer.
6.2 Right to Participate. Each holder of Preferred Shares shall have the
right, exercisable upon written notice to the Central Shareholder within 30
business days after receipt of the notice of the Purchase Offer, to participate
in such Central Shareholder's sale of Common Shares on the same terms and
conditions. To the extent the holder of Preferred Shares exercises such right to
participation, the number of Common Shares which such Central Shareholder may
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sell pursuant to such Purchase Offer shall be correspondingly reduced. The right
of participation of the holder of Preferred Shares shall be subject to die
following terms and conditions:
(a) The holder of Preferred Shares may sell all or any part of that number
of Common Shares of the Company equal to the product obtained by multiplying (i)
the aggregate number of Common Shares covered by the Purchase Offer by (ii) a
fraction, the numerator of which is the number of Common Shares of the Company
at the time owned by such holder and the denominator of which is the combined
number of Common Shares of the Company at the time owned by the Central
Shareholder and all holders of Preferred Shares electing to participate in the
Central Shareholder's sale of Common Shares. For purposes of making such
computation, a holder of Preferred Shares shall be deemed to own the number of
Common Shares into which all its Preferred Shares is at the time convertible.
(b) The holder of Preferred Shares may participate in the sale by
delivering to the selling Central Shareholder for transfer pursuant to the
Purchase Offer one or more certificates, properly endorsed for transfer, which
(i) the number of Common Shares which the holder of Preferred Shares
elects to sell pursuant to this Section 6.2; or
(ii) that number of Preferred Shares which is at such time convertible
into the number of Common Shares which the holder of Preferred Shares
elects to sell pursuant to this Section 6.2; provided, however, that if the
purchase offeror objects to the delivery of Preferred, Shares in lieu of
Common Shares, the holder of Preferred Shares may convert and deliver
Common Shares as provided in (b)(i) above.
Section 7. Miscellaneous.
7.1 Registration of Transfer. The Corporation shall keep at its principal
Office a register for the registration of Preferred Shares. Upon the surrender
of my certificate representing Preferred Shares at such place, the Corporation
shall, at the request of the record holder of such certificate, execute and
deliver (at the Corporation's expense) a new certificate or certificates in
exchange therefor representing in the aggregate the number of Preferred Shares
represented by the surrendered certificate. Each such new certificate will be
registered in such name and will represent such number of Preferred Shares as is
requested by the holder of the surrendered certificate and will be substantially
identical In form to the surrendered certificate, and dividends will accrue on
the Preferred Shares represented by such new certificate from the date to which
dividends have been fully paid on such Preferred Shares represented by the
surrendered certificate.
7.2 Replacement. Upon receipt of evidence reasonably satisfactory to the
Corporation of the ownership and the loss, theft, destruction or mutilation of
my certificate evidencing Preferred Shares, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to the
Corporation (provided that if the holder is an
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institutional investor its own agreement will be satisfactory), or, in the can
of any such mutilation upon surrender of such certificate, the Corporation will
(at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of Preferred Shares represented
by such lost, stolen, destroyed or mutilated certificate and dated the date of
such lost, stolen, destroyed or mutilated certificate, and dividends will accrue
an the Preferred Shares represented by such new certificate from the date to
which dividends have been fully paid on such lost, stolen, destroyed or
mutilated certificate.
7.3 Notices. Except as otherwise expressly provided, all notices referred
to herein will bee in writing and will be delivered by registered or certified
mail, return receipt requested, postage prepaid and will be deemed to have been
given when so mailed (a) to the Corporation, at its principal executive offices
and (b) to any shareholder, at such holder's address as it appears in the stock
records of the Corporation (unless otherwise indicated in writing by such
bolder).
Section 8. Voting Rights.
8.1 Board Representation. The holders of more than 50% of the Preferred
Shares shall be entitled to select a person to observe all meeting, of the Board
8.2 Other Voting Matters. The Corporation may take the various actions
listed below only upon satisfying the one or more voting requirements, set forth
below, applicable to such action.
(a) Whenever the Indiana Business Corporation Law provides for a vote of a
class of shareholders, the holders of the outstanding shares of any class shall
be entitled to vote as a class in respect of any such amendment or transaction
and the proposed amendment or transaction shall be approved upon receiving the
affirmative vote of the holders of a majority of the outstanding shares of each
class of shares entitled to vote as a class in respect thereof and of the total
outstanding shares entitled to vote.
(b) So long as any Preferred Shares remain outstanding, the Corporation
shall, not without the affirmative vote or written consent by the holders of
more than two-thirds of the Preferred Shares then outstanding:
(i) directly or indirectly declare or pay any dividends or make any
distributions upon any of its equity securities;
(ii) except for the Investor Securities, authorize, issue, or enter
into any agreement providing for the issuance (contingent or otherwise) of
(A) any notes or debt securities containing equity features with rights
superior to those of the Preferred Shares (including, without limitation,
any notes or debt securities convertible into or exchangeable for equity
securities, issued in connection with the issuance of equity securities or
containing profit participation features) or (B) any additional series of
preferred shares of the Corporation or any equity
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securities with rights superior to those of the Preferred Shares (or any
securities convertible into or exchangeable for any equity securities); or
(iii) make any amendment to the Corporation's articles of
incorporation or by-laws or enter into any agreements which alter, change
or otherwise amend or adversely effect the rights, preferences or
privileges of the Preferred Shares.
(c) In all other events, except as required by the Indiana Business
Corporation Law all holders of shares of the Corporation will vote as a single
class, with each holder of Preferred Shares being entitled to cast such number
of votes as is equal to the number of Common Shares into which the Preferred
Shares of such holder would be converted on the date of such vote.
Section 9. Definitions.
"Additional Securities" means (i) any capital stock of the Corporation,
whether now authorized or not. (ii) any rights, options or warrants to purchase
any such capital stock or to purchase any securities that are or may become
convertible into any such capital stock, and (iii) any securities convertible
into any such capital stock. provided, however, that Additional Securities shall
not include (a) any Preferred Shares, (b) Common Shares issued upon the.
conversion of the Preferred Shares; (c) securities issued as a dividend on,
subdivision of or other distribution in respect of all outstanding Common
Shares, (d) securities issued upon the conversion, exercise or exchange of any
option, warrant or convertible security issued as or in connection with a
previous issuance of Additional Securities, (e) securities issued pursuant to
the acquisition of another corporation by the Corporation by merger, purchase of
substantially all of the assets of such other corporation, or by other
reorganization whereby the Corporation ends up owning, directly or indirectly,
greater than 50% of the voting power of the outstanding stock of such other
corporation, or (f) any Common Shares described in Section 3.3(h).
"Board" means the Corporation's Board of Directors.
"Common Share" means a share of the Corporation's common stock.
"Common Share Equivalent" means, collectively, any capital stock of any
class of the Corporation hereafter authorized which is not limited to a fixed
sum or percentage of par or stated value in respect to the rights of the holders
thereof to participate in dividends or in the distribution of assets upon any
liquidation, dissolution or winding up of the Corporation.
"Insolvency Event" means (i) the Corporation commencing any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, (19)
seeking appointment of a receiver, trustee, custodian or other similar official
for it of for all or any substantial part of its assets, or
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(C) making a general assignment for the benefit of its creditors; or (b) there
is commenced against the Corporation any case, proceeding or other action of a
nature referred to in clause (i) above; or (iii) there is commenced against the
Corporation any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial put of its assets; or (iv) the Corporation takes any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii) or (iii) above; or (v) the
Corporation generally does not pay its debts as they become due.
"Liquidation Value" of any Preferred Share as of any particular date will
be equal to $1.00 (as adjusted for any divisions, whether by stock split, stock
dividend or otherwise, or combinations, whether by reverse stock split or
otherwise, of the Preferred Shares).
"Market Price" of any security means the average of the closing prices of
such security's sales on all securities exchanges on which such security may at
the time be listed, or, if there has been no sales on any such exchange on any
day, the average of the highest bid and lowest asked prices on the primary
exchange on which such security is listed at the end of such day, or, if on any
day such security is not so listed, the average of the representative bid and
asked prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or, if
on any day such security is not quoted in the NASDAQ System, the average of the
highest bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or any
similar successor organization, in each such case averaged over a period of 21
days consisting of the day as of which "Market Price" is being determined and
the 20 consecutive business days prior to such day. The "Market Price" of a note
or other obligation which is not listed on a securities exchange or quoted in
the NASDAQ System or reported by the National Quotation Bureau, Incorporated,
the total consideration received by the Corporation (including interest) will be
discounted at the prime rate of interest at the First National Bank of Chicago
in effect at the time the note or obligation is deemed to have been issued. If
at any other time such security is not listed on any securities exchange or
quoted in the NASDAQ System Or the over-the-counter market, the "Market price",
thereof determined jointly by the Corporation and the holders of a majority of
the Preferred Shares. If such parties are unable to reach agreement within a
reasonable period of time, such fair value will be determined by an independent
appraiser jointly selected by the Corporation and the holders of a majority of
the Preferred Shares; the cost of such appraiser shall be shared equally by the
Corporation and the holders of the Preferred Shares.
"Organic Change" means any capital reorganization, reclassification,
consolidation, merger, lease, or sale of all or substantially all of the
Corporation's assets to another Person which is effected in such a way that
holders of Common Shares are entitled to receive (either directly or upon
subsequent liquidation) shares, securities or assets with respect to or in
exchange for Common Shares.
"Person" means an individual, a Partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization
and a governmental entity or any department, agency or political subdivision
thereof.
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"Securities Purchase Agreement" means the Securities Purchase Agreement,
entered into as of the 8th day of February, 2000, by and between the Corporation
and the investors identified therein.
SECOND: These Articles of Amendment were duly adopted by the Board of
Directors of the Corporation on May 22, 2000 in full legal compliance with the
provisions of the Indiana Business Corporation Law, the Articles of
Incorporation and the By Laws of the Corporation.
IN WITNESS WHEREOF, the undersigned hereby verifies, subject to the
penalties of perjury, that the statements contained herein are true, this 12th
day of April, 2001.
NOBLE ROMAN'S, INC.
By /s/ Paul W. Mobley
-------------------------------------
Paul W. Mobley, Chairman of the Board
and Chief Executive Officer
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