EXHIBIT 3.1
ARTICLE I
NAME
The name of the Corporation is Smart Choice Automotive Group, Inc.
ARTICLE II
CAPITAL STOCK
The aggregate number of shares of capital stock which the Corporation
has authority to issue is 55,000,000 shares, which shall consist of 50,000,000
shares of common stock, $.01 par value per share ("Common Stock") and 5,000,000
shares of preferred stock, $.01 par value per share ("Preferred Stock"). No
shareholder of any stock of this Corporation shall have preemptive rights. There
shall be no cumulative voting by the shareholders of the Corporation.
A. Common Stock. Subject to the preferential dividend rights
applicable to shares of any series of Preferred Stock, the holders of shares of
Common Stock shall be entitled to receive such dividends as may be declared by
the Board of Directors. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, after distribution in
full of the preferential amounts to be distributed to the holders of shares of
the Preferred Stock, the holders of shares of the Common Stock shall be entitled
to receive all of the remaining assets of the Corporation available for
distribution to its shareholders, ratably in proportion to the number of shares
of the Common Stock held by them. Each holder of record of the Common Stock
shall have one vote for such share of Common Stock standing in such holder's
name on the books of the Corporation and entitled to vote.
B. Preferred Stock. The Preferred Stock may be issued by the
Board of Directors, from time to time, in one or more series. Authority is
hereby vested solely in the Board of Directors of the Corporation to provide,
from time to time, for the issuance of Preferred Stock in one or more series and
in connection therewith to determine without shareholder approval, the number of
shares to be included and such of the designations, powers, preferences, and
relative rights and the qualifications, limitations, and restrictions of any
such series, including, without limiting the generality of the foregoing, any of
the following provisions with respect to which the Board of Directors shall
determine to make affirmative provision:
1. The designation and name of such series and the
number of shares that shall constitute such series;
2. The annual dividend rate or rates payable on shares
of such series, the date or dates from which such dividends shall commence to
accrue, and the dividend payment dates for such dividends;
3. Whether dividends on such series are to be cumulative
or noncumulative, and the participating or other special rights, if any, with
respect to the payment of dividends;
4. Whether such series shall be subject to redemption
and, if so, the manner of redemption, the redemption price or prices and the
terms and conditions on which shares of such series may be redeemed;
5. Whether such series shall have a sinking fund or
other retirement provisions for the redemption or purchase of shares of such
series, and, if so, the terms and amount of such sinking fund or other
retirement provisions and the extent to which the charges therefor are to have
priority over the payment of dividends on or the making of sinking fund or other
like retirement provisions for shares of any other series or over the payment of
dividends on the Common Stock;
6. The amounts payable on shares of such series on
voluntary or involuntary dissolution, liquidation, or winding up of the affairs
of the corporation and the extent to which such payment shall have priority over
the payment of any amount on voluntary or involuntary dissolution, liquidation,
or winding up of the affairs of the corporation on shares of any other series or
on the Common Stock;
7. The terms and conditions, if any, on which shares of
such series may be converted into, or exchanged for, shares of any other series
or of Common Stock;
8. The extent of the voting powers, if any, of the
shares of such series;
9. The stated value, if any, for the shares of such
series, the consideration for which shares of such series may be issued and the
amount of such consideration that shall be credited to the capital account; and
10. Any other preferences and relative, participating,
option, or other special rights, and qualifications, limitations or restriction
thereof, or any other term or provision of shares of such series as the Board of
Directors may deem appropriate or desirable.
The Board of Directors is expressly authorized to vary the provisions
relating to the foregoing matters between the various series of Preferred Stock.
All shares of Preferred Stock of any one series shall be identical in
all respects with all other shares of such series, except that shares of any one
series issued at different times may differ as to the dates from which dividends
thereon shall be payable, and if cumulative, shall cumulate.
Shares of any series of Preferred Stock that shall be issued and
thereafter acquired by the Corporation through purchase, redemption (whether
through the operating of a sinking fund or otherwise), conversion, exchange, or
otherwise, shall, upon appropriate filing and recording to the extent required
by law, have the status of authorized and unissued shares of Preferred Stock and
may be reissued as part of such series or as part of any other series of
Preferred Stock. Unless otherwise provided in the resolution or resolutions of
the Board of Directors providing for the issuance thereof, the number of
authorized shares of stock of any series of Preferred Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by resolution or resolutions of the Board of Directors and
appropriate filing and recording to the extent required by law. In case the
number of shares of any such series of Preferred Stock shall be decreased, the
shares representing such decrease shall, unless otherwise provided in the
resolution or resolutions of the Board of Directors providing for the issuance
thereof, resume the status of authorized but unissued shares of Preferred Stock,
undesignated as to series.
C. Series E Convertible Preferred Stock
(a) General. The Series E Convertible Preferred Stock, par value
$.01 per share (the "Series E Preferred Stock"), shall consist of 2,000,000
shares. All shares of Series E Preferred Stock shall in all respects be equal
and shall have the powers, preferences, voting rights and other special rights,
and the limitations, restrictions and qualifications hereinafter set forth. The
Board of Directors is expressly authorized to cause shares of the Series E
Preferred Stock to be issued from time to time and to determine the
consideration to be received therefor.
(b) Dividends. The holders of record of the Series E Preferred
Stock shall be entitled to receive dividends in the amount per share equal to
five (5) times the amount per share of dividends paid from time to time to
holders of record of the Common Stock, and no more. The Board of Directors shall
not declare or pay any dividend on the Common Stock unless it declares a
dividend on the Series E Preferred Stock with the same record and payment dates
as such dividend on the Common Stock.
(c) Voting Rights of Series E Preferred Stock. The holders of
Series E Preferred Stock shall have the right to vote in all matters voted upon
by the holders of the Common Stock, voting together with the holders of the
Common Stock as a single class. Each share of Series E Preferred Stock shall be
entitled to five (5) votes. In all matters in which the holders of Series E
Preferred Stock shall be entitled to vote separately as a single class, each
share of the Series E Preferred Stock shall have one vote.
(d) Liquidation. In the event of the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the holders of
shares of Series E Preferred Stock shall be entitled to be paid out of the
assets of the Corporation per share of Series E Preferred Stock, before any
distribution or payment is made to or set apart for the holders of any shares of
Common Stock, the greater of (1) $1.00 per share or (2) the aggregate amount
remaining to be distributed after all distributions to holders of prior series
of preferred stock divided by the total number of outstanding shares of Series E
Preferred Stock and Common Stock, multiplied times five (5). Neither the merger
or consolidation of the Corporation into or with any other Corporation, nor the
sale of all or substantially all the assets of the Corporation, shall be deemed
a liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary.
(e) Conversion Rights.
(i) Conversion Rate. Each holder of shares of
Series E Preferred Stock shall have the right, at any time, to
convert, subject to the following provisions, each share of
Series E Preferred Stock held by the holder into five (5)
fully paid and nonassessable shares of Common Stock of the
Corporation.
(ii) Conversion Procedures. Any holder of shares
of Series E Preferred Stock desiring to convert the same into
Common Stock shall surrender the certificates for such shares
of Series E Preferred Stock at the executive office of the
Corporation, with the certificates duly endorsed to the
Corporation or in blank, together with a written request for
conversion. The Corporation will, as soon as practicable after
such surrender for conversion, issue and deliver to the person
for whose account such shares of Series E Preferred Stock were
so surrendered certificates for the number of shares of Common
Stock to which the person shall be entitled. Such conversion
shall be deemed to have been made as of the date on which the
certificates for shares of Series E Preferred Stock to be
converted and written request were actually received by the
Corporation, and the person entitled to receive the shares of
Common Stock issuable upon the conversion of such shares of
Series E Preferred Stock shall be treated for all purposes as
the record holder of such Common Stock on such date.
(iii) Adjustment. In the event that the
Corporation shall pay a dividend on its Common Stock in shares
of its Common Stock, or subdivide, combine or reclassify its
outstanding shares of Common Stock, the conversion rate in
effect immediately prior thereto shall be proportionately
increased or decreased, by multiplying the rate by a fraction
(x) the numerator of which is the total number of shares of
Common Stock outstanding immediately prior to the payment date
for the event and (y) the denominator of which is the total
number of shares of Common Stock outstanding immediately after
the payment date for the event.
(iv) Consolidation or Merger. In case of the
consolidation or merger of the Corporation with or into
another Corporation or entity (other than a merger not
involving any reclassification, conversion or exchange of
outstanding Common Stock in which the Corporation is the
surviving Corporation), or in case of the sale, transfer or
other disposition of all or substantially all of the property,
assets or business of the Corporation as a result of which
sale, transfer or other disposition, property other than cash
shall be payable or distributable to the holders of the Common
Stock, each share of Series E Preferred Stock shall thereafter
be convertible into the number and class or series of shares
or other securities or property of the Corporation, or of the
Corporation resulting from such consolidation or merger or to
which such sale, transfer or other disposition shall have been
made, to which the shares of Common Stock otherwise issuable
upon conversion of such share of Series E Preferred Stock
would have been entitled upon such reorganization,
consolidation, merger or sale, transfer or other disposition
if outstanding at the time thereof; and in any such case
appropriate adjustment, as determined by the Board of
Directors, shall be made in the application of the provisions
set forth in this Article V with respect to the conversion
rights thereafter of the holders of the Series E Preferred
Stock. Proper provision
shall be made as a part of the terms of any such
consolidation, merger, sale, transfer or other disposition
whereby the conversion rights of the holders of Series E
Preferred Stock shall be protected and preserved in accordance
with the provisions of this section.
(v) Common Stock Authorized and Reserved. The
Corporation shall at all times reserve and keep available, out
of its authorized and unissued stock, solely for the purpose
of effecting the conversion of the shares of Series E
Preferred Stock, such number of shares of Common Stock as
shall from time to time be sufficient to effect the conversion
of all of the shares of Series E Preferred Stock from time to
time outstanding.
(vi) No Fractional Shares. No fractional shares
shall be issued upon conversion of shares of Series E
Preferred Stock and the holder thereof shall receive the
amount of cash payable in respect of any fractional share of
Common Stock to which the holder shall be entitled. Whether or
not fractional shares are issuable upon such conversion shall
be determined on the basis of the total number of shares of
Series E Preferred Stock the holder is converting into Common
Stock and the number of shares of Common Stock issuable upon
such conversion.
ARTICLE III
SUPER-MAJORITY VOTE REQUIREMENT
The affirmative vote of the holders of not less than two-thirds of the
outstanding shares of this Corporation's voting stock (other than the shares
beneficially owned by an "Acquiring Person" as hereinafter defined) shall be
required for the approval or authorization of any "Business Combination" (as
hereinafter defined) of this Corporation or any subsidiary of this Corporation
with any Acquiring Person, notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified by law or otherwise;
provided, however, that the two-thirds voting requirement shall not be
applicable and such Business Combination shall require only such affirmative
vote as is required by law or otherwise if: (a) the Board of Directors of this
Corporation by at least an affirmative vote of a majority of the disinterested
directors then on the Board has expressly approved such Business Combination
either in advance of or subsequent to such Acquiring Person becoming an
Acquiring Person; or (b) as of the date of the consummation of a Business
Combination, the holders of a particular class or series of capital stock, as
the case may be, of this Corporation receive a "fair price" as such term is
defined below.
For the purpose of this Article III:
(A) The term "Business Combination" shall mean any (i)
merger or consolidation of this Corporation or a subsidiary of this
Corporation with an Acquiring Person or any other Corporation which is
or after such merger or consolidation would be an "Affiliate" or
"Associate" (as hereinafter defined) of an Acquiring Person; (ii) sale,
lease, exchange, mortgage, pledge or transfer or other disposition (in
one transaction or a series of transactions) to or with any Acquiring
Person or any Affiliate of any Acquiring Person, of all or
substantially all of the assets of this Corporation or of a subsidiary
of this Corporation to an Acquiring Person or any Affiliate or
Associate of any Acquiring Person; (iii) adoption
of any plan or proposal for the liquidation or dissolution of this
Corporation proposed by or on behalf of an Acquiring Person or any
Affiliate or Associate of any Acquiring Person; (iv) reclassification
of securities (including any reverse stock split) or recapitalization
of this Corporation or any other transaction that would have the
effect, either directly or indirectly, of increasing the proportionate
share of any class of equity or convertible securities of this
Corporation or any subsidiary of this Corporation which is directly or
indirectly beneficially owned by an Acquiring Person or any Affiliate
or Associate of any Acquiring Person; and (v) an agreement, contract or
other arrangement providing for any of the transactions described in
this definition of Business combination.
(B) The term "fair market value" shall mean (i) in the
case of shares, the highest closing sale price quoted during the 30-day
calendar period immediately preceding the Business Combination on the
National Association of Securities Dealers, Inc., automated quotations
system or any similar system then in general use, or if such shares are
listed on an exchange, the highest closing bid quotation with respect
to the share during the 30-day calendar period preceding the date in
question, or, if no such quotations are available, the fair market
value of a share on the date in question as determined by the
affirmative vote of a majority of the disinterested directors then on
the Board; and (ii) in the case of property other than cash or shares,
the fair market value of such property on the date in question as
determined by the affirmative vote of a majority of the disinterested
directors then on the Board.
(C) The term "fair price" shall mean that the aggregate
amount of cash and the fair market value of consideration other than
cash to be received per share are at least equal to the highest of the
following: (i) if applicable, the highest per share price, including
any brokerage commissions, transfer taxes, and soliciting dealers'
fees, paid by the Acquiring Person for any share acquired by it within
the two year period immediately preceding the consummation of the
Business Combination or the transaction in which it became an Acquiring
Person, whichever is higher; or (ii) the fair market value per share.
(D) The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group comprised of
any person and any other person with whom such person or any Affiliate
or Associate of such person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of voting stock of this Corporation.
(E) The term "Acquiring Person" shall mean any person
(other than this Corporation, or any subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan
of this corporation or any subsidiary or any trustee of or fiduciary
with respect to any such plan when acting in such capacity) who or
which: (i) is the beneficial owner (as hereinafter defined) of ten
percent (10%) or more of the voting stock; (ii) is an Affiliate or
Associate of this Corporation and at any time within the two year
period immediately prior to the date in question was the beneficial
owner of ten percent (10%) or more of the voting stock; or (iii) is at
such time an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of voting stock which were at any time within
the two year period immediately prior to the date in question
beneficially
owned by any Acquiring Person, if such assignment or succession shall
have occurred in the course of a transaction or series of transactions
not involving a public offering within the meaning of the Securities
Act of 1933.
(F) A person shall be a beneficial owner of any voting
stock: (i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or (ii) which such person or
any of its Affiliates or Associates has, directly or indirectly, (a)
the right to acquire whether such right is exercisable immediately or
not, pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or
options, or otherwise; (b) the right to vote pursuant to any agreement,
arrangement or understanding; or (c) which are beneficially owned,
directly or indirectly, by any other person by which such person or any
of its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of voting stock.
(G) The terms "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934.
(H) An Acquiring Person shall be deemed to have acquired
a share of the voting stock of this Corporation at the time when such
Acquiring Person became the beneficial owner thereof.
The Board of Directors of this Corporation shall have the power and duty
to determine for the purposes of this Article III, on the basis of information
known to them after reasonable inquiry, (1) whether a person is an Acquiring
Person, (2) the number of shares of Common Stock beneficially owned by any
person, (3) whether a person is an Affiliate or Associate of another.
Nothing contained in this Article III shall be construed to relieve any
Acquiring Person or any of its Affiliates or Associates from any fiduciary
obligation imposed by law.
ARTICLE IV
EVALUATION OF BUSINESS COMBINATIONS
The Board of Directors of this Corporation, when evaluating any offer
of another party, (a) to make a tender offer for any securities of this
Corporation or (b) to effect a Business Combination (as defined in Article III)
shall, in connection with the exercise of its judgment in determining what is in
the best interests of this Corporation as a whole, be authorized to give due
consideration to such factors as the Board of Directors determines to be
relevant, including, without limitation:
(1) the interests of this Corporation's stockholders;
(2) whether the proposed transaction might violate
federal or state law;
(3) the consideration being offered in the proposed
transaction, in relation to the then current market
price for the outstanding shares of this Corporation
over a period of years, the estimated price that
might be achieved in a negotiated sale of this
Corporation as a whole or in part or through orderly
liquidation, the premiums over market price for the
securities of other companies engaged in similar
transactions, current political, economic and other
factors bearing on securities' prices and this
Corporation's financial condition and future
prospects; and
(4) the social, legal and economic effects upon
employees, suppliers, customers and other having
similar relationships with this Corporation, and the
communities in which this Corporation conducts its
business.
In connection with any such evaluation, the Board of Directors is
authorized to conduct such investigations and to engage in such legal
proceedings to test the legal propriety of proposed offers or transactions as
the Board of Directors may determine.
ARTICLE V
BYLAWS
(A) Adoption, Amendment, Etc. The power to adopt the bylaws of
this Corporation, to alter, amend or repeal the bylaws, or to adopt new bylaws,
shall be vested in the Board of Directors of this Corporation; provided,
however, that any bylaw or amendment thereto as adopted by the Board of
Directors may be altered, amended, or repealed by vote of the stockholders
entitled to vote thereon, or a new bylaw in lieu thereof may be adopted by the
stockholders, and the stockholders may prescribe in any bylaw made by them that
such bylaw shall not be altered, amended or repealed by the Board of Directors.
(B) Scope. The bylaws of this Corporation shall be for the
government of this Corporation and may contain any provisions or requirements
for the management of this Corporation and may contain any provisions or
requirements for the management or conduct of the affairs and business of this
Corporation, provided the same are not inconsistent with the provisions of these
Articles of Incorporation, or contrary to the laws of the State of Florida or of
the United States.
ARTICLE VI
AMENDMENTS
This Corporation reserves the right to amend or repeal any provisions
contained in these Articles of Incorporation, or any amendment hereto, and any
right conferred upon the stockholders is subject to this reservation; provided,
however, notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, in these Articles of Incorporation or the
Bylaws of this Corporation), the affirmative vote of the holders of not less
than two-thirds of the outstanding shares of this Corporation's voting stock
[other than the shares
beneficially owned by an "Acquiring Person" (as defined in Article III hereof),
shall be required to amend, repeal or adopt any provisions inconsistent with
Articles III, IV or VI of these Articles of Incorporation, in addition to any
affirmative vote required by law or these Articles of Incorporation with respect
to any other shares of capital stock of this Corporation.