Articles of Amendment
to
Articles of Incorporation
of
ZALDIVA, INC.
P97000069478
(Document number of corporation (if known)
Pursuant to the provisions of section 607.1006, Florida Statutes, this Florida
Profit Corporation adopts the following amendment(s) to its Articles of
Incorporation:
NEW CORPORATE NAME (if changing):
Not applicable
AMENDMENTS ADOPTED-(OTHER THAN NAME CHANGE) Indicate Article Number(s) and/or
Article Title(s) being amended, added or deleted:
See attachment.
If an amendment provides for exchange, reclassification, or cancellation of
issued shares, provision for implementing the amendment if not contained in
the amendment itself:
Not applicable.
The date of each amendment(s) adoption: September 10, 2004
Effective date if applicable: Upon filing with the Florida Secretary of State
Adoption of Amendment(s) (CHECK ONE)
__ The amendment(s) was/were approved by the shareholders. The number of
votes cast for the amendment(s) by the shareholders was/were sufficient
for approval.
__ The amendment(s) was/were approved by the shareholders through voting
groups. The following statement must be separately provided for each
voting group entitled to vote separately on the amendment(s):
"The number of votes cast for the amendment(s) was/were sufficient
for approval by _______________________."
(voting group)
_X_ The amendment(s) was/were adopted by the board of directors without
shareholder action and shareholder action was not required.
__ The amendment(s) was/were adopted by the incorporators without
shareholder action and shareholder action was not required.
Signed this 10th date of September, 2004.
Signature/s/Robert B. Lees
Robert B. Lees
President
ARTICLE III
Capitalization: (a) The Corporation shall have the authority to issue
50,000,000 shares of common voting stock having a par value of one mill
($0.001) per share.
(b) The Corporation shall have the authority to issue
20,000,000 shares of preferred stock having a par value of one mill ($0.001)
per share, with such limitations, rights and preferences as the Board of
Directors of the Corporation shall determine. Within the authorized class of
20,000,000 shares of preferred stock, there shall be a series of preferred
stock designated as the Series A 4% Convertible Preferred Stock (the Series
A Preferred Stock ), and the number of shares so designated shall be
5,000,000. The limitations, rights and preferences of the Series A Preferred
Stock shall be as follows:
A. Voting Rights. Except as otherwise required by
law, the holders of the Series A Preferred Stock shall not be entitled to vote
separately, as a series, class or otherwise, on any matter submitted to a vote
of the stockholders of the Corporation. Notwithstanding the foregoing,
without the prior written consent of the holders of the Series A Preferred
Stock;
(i) the Corporation shall not amend, alter, or repeal
(whether by amendment, merger, or otherwise) any of the provisions related to
the Series A Preferred Stock in its Certificate of Incorporation, as amended,
any resolutions of the board of directors or any instrument establishing and
designating the Series A Preferred Stock in determining the relative rights
and preferences thereof so as to affect any materially adverse change in the
rights, privileges, powers, or preferences of the holders of Series A
Preferred Stock; and
(ii) the Corporation shall not create or designate
any additional preferred stock senior in right as to dividends, voting rights,
redemptions or liquidation to the Series A Preferred Stock.
B. Dividends. Holders of the Series A Preferred
Stock shall be entitled to receive, out of funds legally available therefor,
dividends at a rate equal to 4% of the Liquidation Preference per share per
annum (subject to appropriate adjustments in the event of any stock dividend,
stock split, combination or other similar recapitalization affecting such
shares), payable quarterly on January 1; April 1; July1; and October 1,
beginning with October 1, 2004, and on any conversion date pursuant to the
terms hereunder (except that, if such date is not a trading day for the
Corporation's common stock, the payment date shall be the next succeeding
trading day) (the Dividend Payment Date ). Dividend payments to each holder
shall be made from funds legally available for the payment of dividends. Any
dividends that are not paid within three trading days following a Dividend
Payment Date shall continue to accrue and shall entail a late fee, which must
be paid in cash, at the rate of 18% per annum or the lesser rate permitted by
applicable law (such fees to accrue daily, from the Dividend Payment Date
through and including the date of payment).
C. Conversion Rights.
(i) Series A Preferred Stock. Subject to the passage
of 12 months from their issuance, and upon the Corporation's receipt of a
facsimile or original of a Series A Preferred Stockholder's duly completed and
signed Notice of Conversion, the Corporation shall instruct its transfer agent
to issue one or more certificates representing that number of shares of the
Corporation's common stock into which the shares of Series A Preferred Stock
are convertible. The Corporation's transfer agent shall act as registrar and
shall maintain an appropriate ledger containing the necessary information with
respect to each share of Series A Preferred Stock.
(ii) Conversion Date. Such conversion shall be
effectuated by surrendering to the Corporation the shares of Series A
Preferred Stock to be converted, together with a facsimile or original of the
signed Notice of Conversion. The date on which the Notice of Conversion is
effective ("Conversion Date") shall be deemed to be the date on which the
holder has delivered to the Corporation a facsimile or original of the signed
Notice of Conversion, as long as the shares of Series A Preferred Stock to be
converted are received by the Corporation within 3 business days thereafter.
As long as the Series B Shares to be converted are received by the Corporation
within three business days after it receives a facsimile or original of the
signed Notice of Conversion, the Corporation shall cause its transfer agent to
deliver to the holder, or per the holder's instructions, the shares of common
stock, with restrictive legends as set forth in the subscription agreement
executed by such holder, within five business days of receipt of the Series A
Preferred Stock to be converted. The person in whose name the certificate of
common stock is to be registered shall be treated as a common stockholder of
record of the Corporation on and after the Conversion Date.
(iii) Conversion Price. The conversion price at
which shares of common stock shall be deliverable upon conversion of Series A
Preferred Stock without the payment of additional consideration by the holder
thereof (the Conversion Price ) shall be 85% of the average closing bid price
of the shares of the Corporation's common stock for the five trading days
immediately preceding the Conversion Date, until such time as the number of
shares of common stock so purchased, multiplied by the Conversion Price equals
the total purchase price paid by the holder for the number of shares of Series
A Preferred Stock being converted. No fractional shares of common stock or of
Series A Preferred Stock or scrip representing fractions thereof will be
issued on conversion, but the number of such shares shall be rounded up or
down, as the case may be, to the nearest whole share.
(v) Reservation of Common Stock. The Corporation
shall at all times reserve and have available all shares of common stock
necessary to meet conversion of the Series A Preferred Stock by all holders of
the entire amount of Series A Preferred Stock then outstanding.
D. Redemption by the Corporation.
(i) Redemption Price. The Corporation shall be
permitted to redeem for cash or immediately available funds, to the extent
permitted under law and provisions of senior and subordinated debt agreements
of the Corporation, at any time and from time to time, any or all of the
shares of Series A Preferred Stock then outstanding at a price of $1.00 per
share (the Redemption Price ). In addition to the Redemption Price, the
Corporation shall issue to each Series A Preferred Stockholder one warrant to
purchase one share of common stock at a price of $0.50 per share, exercisable
for a period of five years, in exchange for each share of Series A Preferred
Stock so redeemed (the Redemption Warrants ). Any redemption by the
Corporation of less than all shares of Series A Preferred Stock than
outstanding shall be pro rata among the holders of the shares of Series A
Preferred Stock based upon the number of shares held by each such holder.
(ii) Procedure for Redemption. In connection with
any redemption of shares pursuant to this Section D, the Corporation shall
give at least 15 days but not more than 30 days' prior written notice of such
redemption (a Redemption Notice ), by hand delivery, by registered or
certified mail or nationally recognized overnight delivery service (with
charges prepaid) or sent via telecopier (if within a reasonable period of time
a permanent copy is given by any of the methods described above), to all
holders of record of Series A Preferred Stock, as applicable, with such notice
to be addressed to each holder at its address as it appears on the stock
transfer books of the Corporation and to specify the redemption date (the
Redemption Date ) and the Redemption Price and to state that the holders must
surrender the certificates for their shares of Series A Preferred Stock on or
after the Redemption Date in order to receive payment of the Redemption Price.
Notwithstanding anything herein contained to the contrary, all shares of
Series A Preferred Stock may be converted, including shares of Series A
Preferred Stock subject to a Redemption Notice given pursuant to this Section
D, during the period from the date of such Redemption Notice through the
Redemption Date. On the Redemption Date the Corporation shall pay the
aggregate Redemption Price in cash or immediately available funds to such
shareholder for the shares of Series A Preferred Stock being redeemed. In the
event the shareholders of such Series A Preferred Stock do not receive such
aggregate Redemption Price on the Redemption Date, the Corporation shall pay
interest on any unpaid amount payable at a rate of ten percent (10%) per
month. From and after the Redemption Date, except as set forth below, any
holder of shares of Series A Preferred Stock that has been redeemed that has
not duly surrendered its Series A Preferred Stock to be redeemed shall cease
to be entitled to any rights except the right to receive payment of the
Redemption Price. Anything herein contained to the contrary notwithstanding,
in the event and to extent that the Corporation cannot or does not make or
tender full payment therefor, such shares shall continue to be outstanding, to
the extent permitted under law and provisions of senior and subordinated debt
agreements of the Corporation, and entitled to all rights and benefits as
holders of Series A Preferred Stock until full payment is made or tendered
therefor as aforesaid. Shares of Series A Preferred Stock which have been
redeemed may not be reissued by the Corporation as shares of such series.
(iii) Reservation of Common Stock. The Corporation
shall at all times reserve and have available all shares of common stock
necessary to meet conversion of the Redemption Warrants that may be granted to
the Series A Preferred Stockholders at any time that Series A Preferred Stock
is then outstanding.
E. Liquidation.
(i) Series A Preference. Upon any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of Series A Preferred Stock shall be entitled, before
any distribution or payment is made upon any shares of common stock or any
preferred stock junior in rank to the Series A Preferred Stock, to be paid an
amount per share equal to the liquidation value described in this Section
E.(i) (the "Liquidation Value"). The per share Liquidation Value of the
Series B Shares on any date is equal to $1.00.
Neither the consolidation nor merger of the
Corporation with or into any other corporation or other entities, nor the
sale, transfer or lease of all or substantially all of the assets of the
Corporation shall itself be deemed to be a liquidation, dissolution or
winding-up of the Corporation within the meaning of this Section E.(i).
Notice of liquidation, dissolution, or winding-up of the Corporation shall be
mailed, by overnight courier, postage prepaid, not less than 20 days prior to
the date on which such liquidation, dissolution, or winding-up is expected to
take place or become effective, to the holders of record of the Series A
Preferred Stock at their respective addresses as the same appear on the books
of the Corporation or supplied by them in writing to the Corporation for the
purpose of such notice, but no defect in such notice or in the mailing thereof
shall affect the validity of the liquidation, dissolution or winding-up.
(ii) General.
(A) All of the preferential amounts to be paid to the
holders of the Series A Preferred Stock pursuant to Section E.(i) shall be
paid or set apart for payment before the payment or setting apart for payment
of any amount for, or the distribution of any assets of the Corporation to,
the holders of the common stock or any preferred stock junior in rank to the
Series A Preferred Stock in connection with such liquidation, dissolution or
winding-up.
(B) After setting apart or paying in full the
preferential amounts aforesaid to the holders of record of the issued and
outstanding Series A Preferred Stock as set forth in Section E.(i), the
holders of record of common stock and any preferred stock junior in rank to
the Series A Preferred Stock shall be entitled to participate in any
distribution of any remaining assets of the Corporation, and the holders of
record of the Series A Preferred Stock shall not be entitled to participate in
such distribution.
F. Payment of Taxes. The Corporation shall pay all
documentary stamp taxes, if any, attributable to the initial issuance of
common stock upon the conversion or redemption of shares of Series A Preferred
Stock as provided herein; provided, however, that the Corporation shall not be
required to pay any tax or taxes which may be payable, (i) with respect to any
secondary transfer of the Series A Preferred Stock or the common stock
issuable upon exercise thereof; or (ii) as a result of the issuance of the
common stock to any person other than the holder, and the Corporation shall
not be required to issue or deliver any certificate for any common stock
unless and until the person requesting the issuance thereof shall have paid to
the Corporation the amount of such tax or shall have produced evidence that
such tax has been paid to the appropriate taxing authority.
G. Certain Adjustments. In the event of any
change in one or more classes of capital stock of the Corporation by reason of
any stock dividend, stock split, reverse stock split, recapitalization,
reclassification, or combination, subdivision or exchange of shares of Series
A Preferred Stock or the like, or in the event of the merger or consolidation
of the Corporation or the sale or transfer by the Corporation of all or
substantially all of its assets, then all liquidation preference, conversion
and other rights and privileges appurtenant to the Series A Preferred Stock
shall be promptly and appropriately adjusted by the Board of Directors of the
Corporation so as to fully protect and preserve the same (such preservation
and protection to be to the same extent and effect as if the subject event had
not occurred, or the applicable right or privilege had been exercised
immediately prior to the occurrence of the subject event, or otherwise as the
case may be), it being the intention that, following any such adjustment, the
holders of the Series A Preferred Stock shall be in the same relative position
with respect to their rights and privileges as they possessed immediately
prior to the event that precipitated the adjustment.