EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MANSUR INDUSTRIES INC.
ARTICLE I
The name of the corporation is MANSUR INDUSTRIES INC.
ARTICLE II
The period of its duration is perpetual.
ARTICLE III
The date and time of the commencement of the corporate existence shall be
November 13, 1990, the date of the filing of the original Articles with the
Department of State for the State of Florida.
ARTICLE IV
The purpose or purposes for which the corporation is organized is to
engage in the transaction of any or all lawful business for which the
corporation may be incorporated under the provisions of the Florida General
Corporation Act of the State of Florida.
ARTICLE V
This Corporation is authorized to issue Ten Million (10,000,000) shares of
$.001 par value common stock, which shall be designated "Common Shares" and One
Million Five Hundred Thousand (1,500,000) shares of preferred stock of $1.00 per
share par value, which shall be designated Preferred Shares".
ARTICLE VI
Preferred Shares may be issued from time to time in series. All Preferred
Shares shall be of equal rank and identical, except in respect to the
particulars that are set forth in these Articles or as they may be fixed by the
Board of Directors consistent with these Articles. Consistent with the
provisions of these Articles, the Board of Directors is authorized and
required to fix, in the manner and to the full extent provided and permitted by
law, all provisions of the shares of each series set forth below:
1. The distinctive designation of all series and the number of shares
which shall constitute such series;
2. The annual rate and nature of dividends payable on the shares of all
series and the time and manner of payment;
3. The redemption price or prices, if any, for the shares of each, any or
all series;
4. The obligation, if any, of the Corporation to maintain a sinking fund
for the periodic redemption of shares of any series and to apply the sinking
fund to the redemption of such shares; and
5. The rights, if any, of the holders of shares of each series to convert
such shares into Common shares and the terms and conditions of such conversion.
ARTICLE VII
SECTION 1. DIVIDENDS.
The holders of record of Preferred Shares shall be entitled to cash
dividends when and as declared by the Board of Directors at the rate per share
per annum and at the time and in the manner determined by the Board of Directors
in the resolution authorizing each series of Preferred Shares. Cash dividends on
Preferred Shares shall accrue from the date of issue. Upon the payment or
setting apart for payment of all current dividends at the specified percentage
rate per share per annum upon the outstanding Preferred Shares, the Directors
may declare and pay dividends upon the Common Shares.
Cash dividends on Preferred Shares shall, unless specifically fixed
otherwise by the Board of Directors with respect to any particular class or
series of preferred stock, be cumulative so that if, for any dividend period,
cash dividends at the specified percentage rate per share per annum shall not
have been declared and paid or set apart for payment on the Preferred Shares
outstanding, the deficiency shall be declared and paid or set apart for payment
prior to the making of any dividend or other distribution in the Common Shares.
SECTION 2. RIGHTS UPON LIQUIDATION OR DISSOLUTION.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of this Corporation, the holders of record of the outstanding
Preferred Shares shall be entitled to be paid the value established by the Board
of Directors at the time any series of Preferred Shares is authorized,
consistent with these Articles. If no such value is established at the time of
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authorization by the Board of Directors, then the holders of record of the
Preferred Shares shall be entitled to be paid the book value for each of such
Preferred Shares, plus accumulated dividends thereon up to the date of such
liquidation, dissolution or winding up of this Corporation, whether or not this
Corporation shall have a surplus or earnings available for dividends, and no
more. After payment to the holders of Preferred Shares of the amount payable to
them as above set forth, the remaining assets of this Corporation shall be
payable to and distributed ratably among the holders of record of the Common
Shares.
SECTION 3. VOTING RIGHTS.
Except as otherwise provided by law, the entire voting power for the
election of Directors and for all other purposes shall be vested exclusively in
the holders of the outstanding Common Shares.
ARTICLE VIII
SECTION 1. SERIES A 12% CUMULATIVE CONVERTIBLE PREFERRED STOCK.
A. DESIGNATION.
The shares of the second series of the Company's 12% Cumulative
Convertible Preferred Stock, $1.00 par value, shall be designated "Series A 12%
Cumulative Convertible Preferred Stock" (hereinafter the "Series A Preferred
Stock") and the number of authorized shares constituting such series shall be
600,000. The number of authorized shares of Series A Preferred Stock may not be
increased.
B. DIVIDENDS.
B.1. The holders of shares of Series A Preferred Stock shall be
entitled, in preference to the Common Stock and any other stock of the Company,
to receive cumulative cash dividends when and as declared by the Board of
Directors out of funds legally available for the purpose, from the date of
original issuance of such shares at a rate of $.60 per year per share of Series
A Preferred Stock. The amount of dividends per share payable for any dividend
period less than a full dividend period, shall be computed on the basis of a
360-day year of twelve 30-day months and the actual number of days elapsed in
the period for which payable. Dividends shall be payable when and as declared by
the Board of Directors, out of funds legally available therefor. Each such
dividend shall be paid to the holders of record of shares of the Series A
Preferred Stock as they appear on the stock register of the Corporation on any
record date, not exceeding 30 days preceding the payment date thereof, as shall
be fixed by the Board of Directors. Dividends may be declared and paid at any
time, without reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment date thereof,
as may be fixed by the Board of Directors. Dividends shall be cumulative,
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whether or not earned, and will accrue on each share of Series A Preferred Stock
from the date of original issuance thereof.
B2. If dividends at the rate per share set forth in paragraph B1
shall not have been declared and paid or set apart for payment on all
outstanding shares of Series A Preferred Stock, then, until the aggregate
deficiency shall be declared and fully paid or set apart for payment, the
Company shall not (i) declare or pay or set apart for payment any dividends or
make any other distribution on any capital stock of the Company ranking junior
to, or on parity with, the Series A Preferred Stock with respect to the payment
of dividends or upon liquidation (such stock being herein referred to as "Junior
or Parity Stock"), or dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Junior Stock, or (ii)
make any payment on account of the purchase, redemption, retirement or other
acquisition of any Junior Stock or any options, warrants or rights to subscribe
for or purchase any Junior or Parity Stock.
C. LIQUIDATION PREFERENCE. Upon any liquidation (complete or partial),
dissolution or winding up of the Company, or sale of substantially all the
Company's assets, whether voluntary or involuntary, or any similar distribution
of its assets to its shareholders which results in a return of capital, whether
voluntary or involuntary, the holders of Series A Preferred Stock, in preference
to all other future issues of preferred stock or any junior stock, shall be
entitled to be paid out of the assets of the Company available for distribution
to its shareholders (whether from capital, surplus or earnings) an amount per
share of Series A Preferred Stock equal to $5.00 plus twice the amount of
aggregate dividends accrued through the date of distribution computed in
accordance with this paragraph, through the effective date of liquidation or
sale.
D. REDEMPTION.
D1. REDEMPTION OF SERIES A PREFERRED STOCK. The Company shall
purchase or redeem the Series A Preferred Stock on June 30, 1996, or any
extension of such redemption date which the Board of Directors of the Company
may declare at their sole discretion.
(a) For each share of the Series A Preferred Stock redeemed by
the Company, pursuant to this paragraph D1, the Company shall be
obligated to pay to the holder thereof, upon surrender, by such
holder at the Company's principal office of the certificate
representing such share, endorsed in blank or accompanied by an
appropriate form of assignment, an amount in cash (the "Redemption
Price") equal to the appropriate liquidation preference price of
$5.00, plus twice the aggregate amount of dividends accrued with
respect to such Series A Preferred Stock, calculated in accordance
with this paragraph, through the date of redemption, which date shall
be specified in the Company's notice to the Preferred Shareholder.
(b) The number of shares of Series A Preferred Stock to be
redeemed from each holder thereof in redemptions under this paragraph
D1 shall be the
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number of whole shares, as nearly as practicable to the nearest
share, determined by multiplying the total number of shares of Series
A Preferred Stock to be redeemed times a fraction, the numerator of
which shall be the total number of shares of Series A Preferred Stock
then held by such holder and the denominator of which shall be the
total number of shares of Preferred Stock then outstanding. In case
less than all the shares represented by any certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(c) Notice of any redemption of Series A Preferred Stock,
specifying the date and time of redemption and the Redemption Price,
shall be mailed by certified or registered mail, return receipt
requested, to each holder of record of shares to be redeemed, at the
address for such holder shown on the Company's records, not more than
60 nor less than 30 days prior to the date on which such redemption
is to be made. If less than all the shares of the Series A Preferred
Stock owned by such holder are then to be redeemed, the notice shall
also specify the number of such shares and the certificate numbers
thereof which are to be redeemed. Upon mailing any such notice of
redemption, the Company shall become obligated to redeem, on the date
specified therein, all shares of the Series A Preferred Stock
specified in such notice.
D2. RIGHTS AFTER REDEMPTION OR REPURCHASE. On the date any share of
Series A Preferred Stock is redeemed or repurchased under this paragraph D, all
rights of the holder of such share as a shareholder of the Company by reason of
the ownership of such share shall cease, except the right to receive the
Redemption Price of such share upon the presentation and surrender of the
certificate representing such share, and such share shall not be deemed to be
outstanding after the date on which it is redeemed or repurchased.
D3. REDEEMED OR OTHERWISE ACQUIRED SHARES TO BE CANCELED. Any shares
of Series A Preferred Stock redeemed or repurchased pursuant to this section or
otherwise acquired by the Company in any manner whatsoever shall be canceled and
shall not under any circumstances be reissued, sold or transferred. The Company
shall from time to time take such action as may be necessary to reduce the
authorized number of shares of Series A Preferred Stock accordingly.
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E. CONVERSION.
E1. CONVERSION PROCEDURES.
(a) A holder of shares of Series A Preferred Stock may, at the
holder's option, at any time prior to the effective date of
redemption, as specified in the Company's notice in accordance with
Paragraph D1(c) hereof, convert all or any part (in whole numbers of
shares only) of the shares of Series A Preferred Stock held by such
holder into such number of fully paid and nonassessable whole shares
of Common Stock, on a one for one basis, that is one share of Series
A Preferred Stock may be converted into one whole share of Common
Stock.
(b) Each conversion of shares of Series A Preferred Stock shall
be effected by the surrender of the certificate or certificates
representing the shares to be converted at the principal office of
the Company (or such other office or agency of the Company as the
Company may designate by notice in writing to the holder or holders
of the Series A Preferred Stock) at any time during its usual
business hours, together with written notice by the holder of such
Series A Preferred Stock stating that such holder desires to convert
the shares, or a stated number of the shares, represented by such
certificate or certificates, into shares of Common Stock. Such notice
shall also specify the name or names (with addresses) and
denominations in which the certificate or certificates for Common
Stock shall be issued and shall include instructions for delivery
thereof. Such conversion shall be deemed to have been effected as of
the close of business on the date on which such certificate or
certificates shall have been surrendered, and as of such date (the
"Conversion Date") the rights of the holder of such Series A
Preferred Stock (or specified portion thereof) as such holder shall
cease and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock are to be
issued upon such conversion shall be deemed to have become the holder
or holders of record of the shares of Common Stock represented
thereby.
(c) As soon as possible after the Conversion Date (but in no
event more than 30 days after the Conversion Date, the Company shall
deliver to the converting holder or, with respect to the
certificate(s) specified in (a) below, as specified by such
converting holder:
(i) a certificate or certificates representing the number
of shares of Common Stock issuable by reason of such conversion
registered in such name or names and such denomination or
denominations as the converting holder shall have specified;
and
(ii) a certificate representing any shares of Series A
Preferred Stock which shall have been represented by the
certificate or certificates
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which shall have been delivered to the Company in connection
with such conversion but which shall not have been converted.
(iii) A Company check in the amount of any accrued but
unpaid dividends, which dividends have not been converted to
shares of Common Stock.
E2. AUTHORIZATION AND ISSUANCE OF COMMON STOCK.
(a) The Company will at all times reserve and keep available
out of its authorized but unissued shares of Common Stock, solely for
the purpose of issue upon the conversion of the Series A Preferred
Stock, as provided in this paragraph, such number of shares of Common
Stock as shall then be issuable upon the conversion of all
outstanding shares of Series A Preferred Stock together with accrued
interest thereon. The Company covenants that all shares of Common
Stock which shall be so issuable shall, when issued, be duly and
validly issued, fully paid and nonassessable and free from all taxes,
liens, and charges. The Company will take all such action as may be
necessary to assure that all such shares of Common Stock may be so
issued without violation of any applicable law or regulation.
(b) The Company will not take any action which results in any
adjustment of the number of shares of Common Stock acquirable upon
conversion of shares of the Series A Preferred Stock if after such
action the total number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock then outstanding, together
with the total number of shares of Common Stock then outstanding and
the total number of shares of Common Stock reserved for any purpose
other than issuance upon conversion of Series A Preferred Stock,
would exceed the total number of shares of Common Stock then
authorized by these Articles of Incorporation.
(c) If any shares of Common Stock required to be reserved for
purposes of conversions of shares of Series A Preferred Stock under
this paragraph E2 require registration with, or approval of, any
governmental authority under any federal or state law (other than any
registration under the Securities Act of 1933, as then in effect, or
any similar federal statute then in force, or any state securities
law, required by reason of any transfer involved in such conversion),
or listing on any domestic securities exchange, before such shares
may be issued upon conversion, the Company will, at its expense and
as expeditiously as possible, use its best efforts to cause such
shares to be duly registered or approved for listing or listed on
such domestic securities exchange, as the case may be.
(d) The issuance of certificates for shares of Common Stock
upon conversion of shares of the Series A Preferred Stock shall be
made without charge to the holders of such shares for any issuance
tax in respect thereof, or other cost
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incurred by the Company in connection with such conversion and the
related issuance of shares of Common Stock, provided that the Company
shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the Series A
Preferred Stock converted.
(e) The Company will not close its books against the transfer
of any share of Series A Preferred Stock or of any share of Common
Stock issued or issuable upon the conversion of such shares in any
manner which interferes with the timely conversion of such shares.
E3. SUBDIVISIONS AND COMBINATIONS. In the event the Company shall at
any time subdivide (by any stock split, stock dividend or otherwise) one or more
classes of its outstanding Common Stock into a greater number of shares of
Common Stock, the Conversion Price in effect immediately prior to such
subdivision forthwith shall be proportionately reduced. Conversely, in the event
the outstanding shares of one or more classes of the Common Stock shall be
combined into a smaller number of shares (by reverse stock split or otherwise),
the Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
E4. LIQUIDATING DIVIDENDS. While any shares of Series A Preferred
Stock are outstanding, the Company will not declare a dividend (other than a
dividend payable in Common Stock, Options or Convertible Securities) upon Common
Stock payable otherwise than out of earnings or retained earnings (determined in
accordance with generally accepted accounting principles, consistently applied).
For purposes of this paragraph E4, a dividend other than in cash shall be
considered payable out of earnings or earned surplus only to the extent that
such earnings or earned surplus are charged an amount equal to the fair value of
such dividend.
E5. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE.
If any capital reorganization or reclassification of the capital stock of the
Company, or any consolidation or merger of the Company with or into another
corporation, or any sale of all or substantially all of the Company's assets to
another corporation shall be effected in such a way that holders of Common Stock
shall be entitled to receive (either directly, or upon subsequent liquidation)
stock, securities or assets with respect to or in exchange for Common Stock,
then, as a condition of such reorganization, reclassification, consolidation,
merger or sale, lawful and adequate provision shall be made whereby each of the
holders of the Series A Preferred Stock shall thereafter have the right to
acquire and receive upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Common Stock of the Company immediately
theretofore acquirable and receivable upon the conversion of such holder's
Series A Preferred Stock, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of Common Stock equal to the number of shares of Common Stock immediately
theretofore acquirable and receivable upon conversion of such Series A Preferred
Stock had such reorganization, reclassification, consolidation, merger or sale
not taken place, and, in any such case, appropriate provision shall
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be made with respect to such holder's rights and interests to the end that the
provisions of this paragraph E (including without limitation provisions for
adjustments of the Conversion Price and of the number of shares of Common Stock
acquirable and receivable upon the exercise of the conversion rights granted in
this paragraph E) shall thereafter be applicable in relation to any shares of
stock, securities or assets thereafter deliverable upon the conversion of such
holder's shares (including, in the case of any such consolidation, merger or
sale in which the successor corporation or purchasing corporation is other than
the Company, an immediate adjustment of the Conversion Price to the value for
the Common Stock reflected by the terms of such consolidation, merger or sale if
the value so reflected is less than the Conversion Price in effect immediately
prior to such consolidation, merger or sale). In the event of a merger or
consolidation of the Company with or into another corporation or the sale of all
or substantially all of the Company's assets to another corporation, as a result
of which a number of shares of common stock of the surviving or purchasing
corporation greater or lesser than the number of shares of Common Stock of the
Company outstanding immediately prior to such merger, consolidation or sale are
issuable to holders of Common Stock, then the Conversion Price in effect
immediately prior to such merger, consolidation or sale shall be adjusted
(pursuant to paragraph E) as though there were a subdivision or combination of
the outstanding shares of Common Stock. The Company shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing such assets shall assume
by written instrument, executed and mailed or delivered by first class mail,
postage prepaid, to each holder of Series A Preferred Stock at the address of
each such holder as shown on the books of the Company, the obligation to deliver
to each such holder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such holder may be entitled to acquire or
receive. If the purchase, tender or exchange offer is made to and accepted by
the holders of more than fifty percent (50%) of the outstanding shares of Common
Stock, the Company shall not effect any consolidation, merger or sale with the
person having made such offer or with any affiliate of such person unless prior
to the consummation of such consolidation, merger or sale each of the holders of
Series A Preferred Stock shall have been given a reasonable opportunity to then
elect to receive upon the conversion of such holder's shares either the stock,
securities or assets then issuable with respect to the Common Stock or the
stock, securities or assets, or the equivalent, issued to previous holders of
the Common Stock in accordance with such offer.
E6. NOTICE OF ADJUSTMENT. Immediately upon any adjustment of the
Conversion Price, the Company shall send written notice thereof to all holders
of Series A Preferred Stock (by first class mail, postage prepaid, addressed to
each such holder at the address for such holder shown on the books of the
Company), which notice shall state the Conversion Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares of
Common Stock acquirable and receivable upon conversions of all shares of Series
A Preferred Stock held by each such holder, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is based.
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E7. OTHER ADJUSTMENT-RELATED NOTICES. In the event that at any
time:
(a) the Company shall declare a dividend (or any other
distribution) upon its Common Stock payable otherwise than in cash
out of earnings or earned surplus;
(b) the Company shall offer for subscription pro rata to the
holders of any class of its Common Stock any additional shares of
stock of any class or other rights;
(c) there shall be any capital reorganization, reclassification
of the capital stock of the Company, or consolidation or merger of
the Company with, or sale of all or substantially all of its assets
to, another corporation; or
(d) there shall be any voluntary or involuntary dissolution,
liquidation, winding up or similar distribution of the Company;
then, in connection with any such event, the Company shall give, by first class
mail, postage prepaid, addressed to the holders of Series A Preferred Stock at
the address for each such holder as shown on the books of the Company: (a) at
least 60 days prior written notice of the date on which the books of the Company
shall close or a record shall be taken for such dividend, distribution or
subscription rights (and specifying the date on which the holders of Common
Stock shall be entitled thereto) or for determining rights to vote in respect of
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding up or similar distribution; and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding up or similar distribution, at least 60 days prior written
notice of the date when the same shall take place (and specifying the date on
which the holders of Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, winding
up or similar distribution).
E8. CERTAIN EVENTS. If any event occurs as to which, in the opinion
of the Board of Directors, the other provisions of this paragraph E are not
strictly applicable or if strictly applicable would not fairly protect the
conversion rights of the Series A Preferred Stock in accordance with the
essential intent and principles of such provisions, then the Board of Directors
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles, so as to protect such conversion
rights as aforesaid, but in no event shall any such adjustment have the effect
of increasing the Conversion Price as otherwise determined pursuant to this
paragraph E except in the event of a combination of shares of the type
contemplated in paragraph E3 and then in no event to an amount larger than the
Conversion Price as adjusted pursuant to paragraph E3.
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F. VOTING. Except as otherwise provided by law or herein, the holders of
shares of Series A Preferred Stock shall not be entitled to vote upon any matter
relating to the business or affairs of the Company or for any other purposes.
G. REGISTRATION OF TRANSFER. The Company shall keep at its principal
office (or such other place as the Company reasonably designates) a register for
the registration of shares of Series A Preferred Stock. Upon the surrender of
any certificate representing Series A Preferred Stock at such place, the Company
shall, at the request of the registered holder of such certificate, execute and
deliver (at the Company's expense) a new certificate or certificates in exchange
therefor representing in the aggregate the number of shares represented by the
surrendered certificate, subject to the requirements of applicable securities
laws. Each such new certificate shall be registered in such name and shall
represent such number of shares as shall be requested by the holder of the
surrendered certificate, shall be substantially identical in form to the
surrendered certificate, and the holders of the shares represented by such new
certificate shall be entitled to receive all mandatory redemption payments on
the shares represented by the surrendered certificate.
H. REPLACEMENT. Upon receipt of evidence reasonably satisfactory to the
Company (an affidavit of the registered holder shall be deemed satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing one or more shares of the Series A Preferred Stock and, in the case
of any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Company (provided that if the registered holder is an
institutional investor its own agreement of indemnity, without bond, shall be
satisfactory) or, in the case of any such mutilation, upon surrender of such
certificate, the Company shall (at its expense) execute and deliver in lieu of
such certificate a new certificate of like kind representing the number of
shares represented by such lost, stolen, destroyed or mutilated certificate. The
term "outstanding" when used herein with reference to shares of the Series A
Preferred Stock as of any particular time shall not include any shares
represented by any certificate in lieu of which a new certificate has been
executed and delivered by the Company in accordance with paragraph 8 or this
paragraph, but shall include only those shares represented by such new
certificate.
I. RESTRICTIONS ON COMPANY ACTION. So long as any shares of Series A
Preferred Stock shall be outstanding, and in addition to any other approvals or
consents required by law, without the prior affirmative vote or written consent
of the holders of fifty percent (50%) of all shares of Series A Preferred Stock
at the time outstanding:
(i) The Company shall not authorize, create or issue any
shares, or securities convertible into such shares, of any class of
stock having preference over, or being on a parity with, the Series A
Preferred Stock with respect to rights upon dissolution, liquidation,
winding up or similar distribution of the Company or distribution of
assets to its shareholders by way of return of capital, whether
voluntary or involuntary.
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(ii) The Company shall not sell, lease, or convey all or
substantially all of the property or business of the Company (which
for purposes hereof, "substantially all" shall be deemed to
constitute fifty percent (50%) or more) and shall not effect a merger
or consolidation of or with any other corporation or corporations
unless such merger or consolidation shall be with a Subsidiary of the
Company or unless as a result of such merger or consolidation and
after giving effect thereto (a) the Company shall be the surviving
corporation, (b) the Series A Preferred Stock then outstanding shall
continue to be outstanding, (c) there shall be no alteration or
change in the powers or designation or the preferences and rights,
and the qualifications, limitations or restrictions applicable to
outstanding shares of Series A Preferred Stock, in any material
respect prejudicial to the holders thereof, and (d) there shall not
be created or thereafter exist any new class or series of stock, or
securities convertible into such stock, having preference over, or
being on a parity with, the Series A Preferred Stock with respect to
rights upon dissolution, liquidation, winding up or similar
distribution or distribution of assets to shareholders by way of
return of capital of the Company.
(iii) The Company shall not amend, alter or repeal any of the
provisions of these Articles of Incorporation or the Bylaws of the
Company in any manner which would adversely affect the preferences
and rights and the qualifications, limitations or restrictions of the
Series A Preferred Stock or the holders thereof, nor shall the
Company increase the number of shares of Series A Preferred Stock
which the Company is authorized to issue.
(iv) The Company shall not enter into any agreement which would
by its terms prohibit or in any way restrict the Company from
redeeming the Series A Preferred Stock or performing any other
obligation to the holders of the Series A Preferred Stock imposed on
the Company by these Articles of Incorporation.
J. DEFINITIONS. The following terms shall have the following meanings,
which meanings shall be equally applicable to the singular and plural forms of
such terms:
(i) "Common Stock" means, collectively, the Common Stock and
any capital stock of any class of the Company hereafter authorized
which shall not be 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, winding up or similar distribution of the
Company.
(ii) "Common Stock Deemed Outstanding" means, at any given
time, the sum of (a) the number of shares of Common Stock actually
outstanding at such time (exclusive of any shares of Common Stock
owned or held by or for the account of the Company), plus (b) the
number of shares of Common Stock deemed to be outstanding under
paragraph E hereof at such time.
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(iii) "Conversion Price" means $1.00, as such price may be
adjusted from time to time pursuant to the provisions of paragraph E
hereof.
(iv) "Person" means and includes an individual, a partnership,
a corporation, a trust, a joint venture, an unincorporated
organization or a government or any department or agency thereof.
(v) "Junior Security" means the Company's Common Stock and any
other equity security of any kind which the Company shall at any time
issue or be authorized to issue other than the Series A Preferred
Stock. The terms and conditions of Series A Preferred Stock are set
forth in these Articles.
(vi) "Series A Preferred Stock" means the Company's second
series of 12% Cumulative Convertible Preferred Stock, par value $1.00
per share.
(vii) "Subsidiary" means any corporation at least 50% of the
voting stock of every class of which shall, at the time as of which
any determination is being made, be owned by the Company either
directly or through one or more Subsidiaries.
K. SEVERABILITY. The unenforceability or invalidity of any provision or
provisions hereof shall not affect or tender invalid or unenforceable any other
provision or provisions herein contained.
ARTICLE IX
The number of directors constituting the Board of Directors of the
Corporation is a minimum of one (1). The number of directors may be increased or
diminished from time to time, pursuant to the Bylaws of the Corporation, but
shall never be less than one (1).
ARTICLE X
The principal place of business and mailing address of this Corporation
is:
8425 S.W. 129th Terrace
Miami, Florida 33156
ARTICLE XI
The by-laws of the Corporation may be adopted, altered, amended or
repealed from time to time by either the shareholders or the Board of Directors,
but the Board of Directors shall not
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alter, amend or repeal any by-laws adopted by the shareholders if the
shareholders specifically provide that such bylaws are not subject to amendment
or repeal by the directors.
ARTICLE XII
SECTION 1. INDEMNIFICATION
This Corporation shall indemnify and shall advance expenses on behalf of
its officers and directors to the fullest extent not prohibited by law in
existence either now or hereafter.
SECTION 2. DIRECTORS AND OFFICERS INSURANCE
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who was or is a director or officer of the Corporation, or
who is or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not
the Corporation would have authority to indemnify him or her against such
liability under the provisions of these articles, or under the law.
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