EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
eAPPLIANCE INNOVATIONS, INC.
The undersigned natural person, of the age of eighteen years or more, a
resident of the State of Texas, acting as an incorporator of a corporation under
the Texas Business Corporation Act, does hereby adopt the following Articles of
Incorporation for such corporation:
ARTICLE ONE
The name of the Corporation is "eAppliance Innovations, Inc."
ARTICLE TWO
The Corporation will have perpetual existence.
ARTICLE THREE
The purpose for which the Corporation is organized is the transaction of
any or all lawful business for which corporations may be incorporated under the
Texas Business Corporation Act.
ARTICLE FOUR
The aggregate number of shares of capital stock that the Corporation will
have authority to issue is one hundred and fifty-one million (151,000,000), one
hundred and fifty million (150,000,000) of which will be shares of Common Stock,
having a par value of $.001 per share, and one million (1,000,000) of which will
be shares of preferred stock, having a par value of $10 per share.
Preferred stock may be issued in one or more series as may be determined
from time to time by the Board of Directors. All shares of any one series of
preferred stock will be identical except as to the date of issue and the dates
from which dividends on shares of the series issued on different dates will
cumulate, if cumulative. Authority is hereby expressly granted to the Board of
Directors to authorize the issuance of one or more series of preferred stock,
and to fix by resolution or resolutions providing for the issue of each such
series the voting powers, designations, preferences, and relative,
participating, optional, redemption, conversion, exchange or other special
rights, qualifications, limitations or restrictions of such series, and the
number of shares in each series, to the full extent now or hereafter permitted
by law.
ARTICLE FIVE
No shareholder of the Corporation will, solely by reason of holding shares
of any class, have any preemptive or preferential right to purchase or subscribe
for any shares of the Corporation, now or hereafter to be authorized, or any
notes, debentures, bonds or other securities convertible into or carrying
warrants, rights or options to purchase shares of any class, now or hereafter to
be authorized, whether or not the issuance of any such shares or such notes,
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debentures, bonds or other securities would adversely affect the dividend,
voting or any other rights of such shareholder. The Board of Directors may
authorize the issuance of, and the Corporation may issue, shares of any class of
the Corporation, or any notes, debentures, bonds or other securities convertible
into or carrying warrants, rights or options to purchase any such shares,
without offering any shares of any class to the existing holders of any class of
stock of the Corporation.
ARTICLE SIX
Shareholders of the Corporation will not have the right of cumulative
voting for the election of directors.
ARTICLE SEVEN
Any action that under the provisions of the Texas Business Corporation Act
would, but for this Article Seven, be required to be authorized by the
affirmative vote of the holders of any specified portion of the shares of the
Corporation will require the approval of the holders of a majority of the shares
of the Corporation entitled to vote on the action.
ARTICLE EIGHT
Pursuant to Article 13.04 of the Texas Business Corporation Act, the
Corporation elects not to be governed by Article 13.03, the Business Combination
Law, of the Texas Business Corporation Act.
ARTICLE NINE
Any action required or permitted by law, these Articles of Incorporation or
the Bylaws of the Corporation to be taken at a meeting of the shareholders of
the Corporation may be taken without a meeting, without prior notice and without
a vote, if a consent or consents in writing, setting forth the action so taken,
shall have been signed by the holder or holders of shares having not less than
the minimum number of votes that would be necessary to take such action at a
meeting at which the holders of all shares entitled to vote on the action were
present and voted.
Prompt notice of the taking of any action by shareholders without a meeting
by less than unanimous written consent shall be given to those shareholders who
did not consent in writing to the action.
ARTICLE TEN
The Board of Directors is expressly authorized to alter, amend or repeal
the Bylaws of the Corporation or to adopt new Bylaws.
ARTICLE ELEVEN
(a) The Corporation will, to the fullest extent permitted by, and in
accordance with the Texas Business Corporation Act, as the same exists or may
hereafter be amended, indemnify any and all persons who are or were serving as
director or officer of the Corporation, or who are or were serving at the
request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee or employee of another corporation, partnership, limited
liability company, joint venture, sole proprietorship, trust, employee benefit
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plan or other enterprise, from and against any and all of the expenses,
liabilities or other matters referred to in or covered by the Texas Business
Corporation Act. Such indemnification may be provided pursuant to any Bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in the capacity of director or officer and as to action in another
capacity while holding such office, will continue as to a person who has ceased
to be a director or officer and inure to the benefit of the heirs, executors and
administrators of such a person.
(b) If a claim under paragraph (a) of this Article is not paid in full by
the Corporation within 30 days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant will be entitled to be paid also the expense of
prosecuting such claim. It will be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct that make it permissible under the laws of the
State of Texas for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense will be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the laws of the State of Texas nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its shareholders) that the claimant has not met such applicable standard of
conduct, will be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
ARTICLE TWELVE
To the fullest extent permitted by the laws of the State of Texas as the
same exist or may hereafter be amended, a director of the Corporation will not
be liable to the Corporation or its shareholders for monetary damages for an act
or omission in the director's capacity as a director. Any repeal or modification
of this Article will not increase the personal liability of any director of the
Corporation for any act or occurrence taking place before such repeal or
modification, or adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification. The provisions
of this Article shall not be deemed to limit or preclude indemnification of a
director by the Corporation for any liability of a director that has not been
eliminated by the provisions of this Article.
ARTICLE THIRTEEN
The Corporation will not commence business until it has received for the
issuance of shares consideration of the value of at least $1,000.
ARTICLE FOURTEEN
The street address of the Corporation's initial registered office is 2225
E. Randol Mill Road, Suite 305, Arlington, Texas 76011, and the name of its
initial registered agent at that address is Scott A. Haire, 2225 E. Randol Mill
Road, Suite 305, Arlington, Texas 76011.
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ARTICLE FIFTEEN
The number of directors constituting the Board of Directors of the
Corporation, which shall be composed of not less than one nor more than eight,
shall initially be one (1) and the name and mailing addresses of such person,
who is to serve as a director until the first annual meeting of the shareholders
or until his successors are elected and qualified, is:
Scott A. Haire
2225 E. Randol Mill Road, Suite 305
Arlington, Texas 76011
Hereafter, the number of directors will be determined in accordance with
the Bylaws of the Corporation.
ARTICLE SIXTEEN
The name and address of the incorporator are:
Robert J. Johnston
901 Main Street, Suite 6000
Dallas, Texas 75202
EXECUTED as of the 14th day of December, 2001.
By:/s/ Robert J. Johnston
-----------------------
Robert J. Johnston
Incorporator
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ARTICLES OF MERGER
OF
MB SOFTWARE CORPORATION
(A Colorado Corporation)
Parent Corporation
WITH AND INTO
EAPPLIANCE INNOVATIONS, INC.
(A Texas Corporation)
Subsidiary Corporation
To the Secretary of State
State of Texas
Pursuant to the provisions of Article 5.16 of the Texas Business Corporation Act
(the "TBCA"), MB Software Corporation, (the "Parent Corporation" or "Merged
Corporation"), a corporation organized under the laws of the State of Colorado,
and owning at least ninety percent (90%) of the shares of eAppliance
Innovations, Inc. (the "Subsidiary Corporation"), a business corporation
organized under the laws of the State of Texas, hereby executes the following
articles of merger.
1. An Agreement and Plan of Merger has been adopted in accordance with the
provisions of Article 5.16 of the Texas Business Corporation Act and of the
Colorado Business Corporation Act providing for the combination of MB Software
Corporation and eAppliance Innovations, Inc. and resulting in Subsidiary
Corporation being the surviving corporation.
2. The following is a copy of a resolution of MB Software Corporation
adopted on December 14, 2001 and in accordance with the laws of its jurisdiction
and its constituent documents:
RESOLVED, that it is deemed advisable and in the best interest of MB
Software Corporation (the "Corporation") to merge with and into
eAppliance Innovations, Inc., its wholly-owned subsidiary organized
under the laws of the State of Texas, pursuant to an Agreement and Plan
of Merger, by and among the Corporation and its subsidiary regarding the
merger of the Corporation with and into its subsidiary, and setting
forth the terms and conditions of the merger and other details and
provisions with respect thereto, and such merger is hereby approved;
RESOLVED, that the proper officers of the Corporation are hereby
authorized to execute and deliver the Agreement of Merger on behalf of
the Corporation and its subsidiary, with such changes therein and
additions thereto as may be approved by such officer executing the same
on behalf of the Corporation and its subsidiary, such approval to be
conclusively evidenced by the execution and delivery thereof.
RESOLVED, that the proper officers of the Corporation are hereby
authorized, in the name of and on behalf of the Corporation, to perform
any and all acts as may be necessary or desirable to execute, file and
deliver the Agreement of Merger, the Articles of Merger and all other
instruments and documents contemplated by the foregoing resolutions and
to take any and all further action which such officer may deem necessary
or desirable to effectuate any action authorized by these resolutions
and otherwise to carry out the purposes and intent of the foregoing
resolutions.
3. As to eAppliance Innovations, Inc. and pursuant to Article 5.03 of the
Texas Business Corporation Act, the approval of the stockholders of Subsidiary
Corporation was not required for the approval and adoption of the Plan of
Merger.
4. As to MB Software Corporation, the number of shares outstanding and the
number of shares voted for and against the Plan of Merger arc as follows:
Shares Outstanding and Class Shares Voted For the Shares Voted Against
of Shares Plan of Merger the Plan of Merger
--------- -------------- ------------------
73,500,000 Common Stock 40,564,833 0
340,000 Series A Preferred 340,000 0
The Series A Preferred, voted together with the shares of Common Stock, and
separately as a class. The number of votes cast for the Plan of Merger by each
voting class entitled to vote separately on the Plan of Merger was sufficient
for approval by that voting class.
5. Article One of the Articles of Incorporation of eAppliance Innovations,
Inc. is hereby amended in its entirety to read as follows:
"The name of the Corporation is MB Software Corporation."
6. Except as set forth in Article 9, the Articles of Incorporation and the
Bylaws of eAppliance Innovations, Inc. prior to the Plan of Merger will be the
Articles of Incorporation and the Bylaws of the surviving corporation.
7. A signed copy of the Plan of Merger, attached hereto as Exhibit A, is
also on file at the principal place of business of eAppliance Innovations, Inc.,
the surviving corporation, at 2225 E. Randol Mill Road, Suite 305, Arlington,
Texas 76011.
8. A copy of the Plan of Merger will be furnished by eAppliance
Innovations, Inc., on written request and without cost, to any shareholder of
eAppliance Innovations, Inc.
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9. As to each corporation that is a party to the merger, the plan of
merger, which performance of its terms were duly authorized by action required
by the laws under which it is incorporated or organized and by its constituent
documents.
10. The effective date of the merger shall be June 5th, 2002.
11. The surviving corporation will be responsible for the payment of all
fees and franchise taxes of the merged corporation and will be obligated to pay
such fees and franchise taxes if the same are not timely paid.
Executed this 4th day of June 2002.
eAppliance Innovations, Inc.
By : /s/ Scott A. Haire
-----------------------
Name: Scott A. Haire
Its: President
MB Software Corporation
By: /s/ Scott A. Haire
----------------------
Name Scott A. Haire
Its: President
AGREEMENT AND PLAN OF MERGER
among
MB SOFTWARE CORPORATION
and
EAPPLIANCE INNOVATIONS, INC.
Dated December 13, 2001
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated as of December 14, 2001 is entered
into by and between MB Software Corporation, a Colorado corporation ("Parent"),
and eAppliance Innovations, Inc., a Texas corporation and wholly owned
subsidiary of Parent ("Merger Sub"). Certain terms used herein but not otherwise
defined shall have the meanings ascribed thereto in Exhibit A attached hereto.
WHEREAS, the respective Boards of Directors of Parent and Merger Sub
have determined that it is advisable and in the best interests of their
respective shareholders to consummate the merger of Parent with and into Merger
Sub (the "Merger"), upon the terms and subject to the conditions set forth
herein; and
WHEREAS, the respective Boards of Directors of Parent and Merger Sub
have approved the transactions contemplated by this Agreement, subject to
approval of such transactions by the shareholders of Parent and the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions of
this Agreement, and in accordance with the applicable provisions of the TBCA and
the CBCA, at the Effective Time, Parent shall be merged with and into the Merger
Sub. As a result of the Merger, the separate corporate existence of Parent shall
cease and Merger Sub shall continue as the surviving corporation of the Merger
(the "Surviving Corporation").
Section 1.2 Effective Time. Subject to the terms and conditions of this
Agreement, the parties hereto shall cause the Merger to be consummated by
filing, as soon as practicable after the Closing (as hereinafter defined), this
Agreement or articles of merger (the "Articles of Merger") with the Secretaries
of State of the States of Texas and Colorado, in such form as required by, and
executed in accordance with the relevant provisions of, the TBCA and the CBCA.
The date and time of acceptance of the filing of the Articles of Merger with the
Secretary of State of the State of Texas (or such later time as shall be agreed
to in writing by the parties hereto and specified in the Articles of Merger)
will be the "Effective Time." The Closing shall take place at 10:00 a.m. (Dallas
time) on the Business Day immediately after the date on which all the conditions
to Closing set forth in Article II hereto shall have been satisfied, at the
offices of Jackson Walker, 901 Main Street, Suite 6000, Dallas, Texas 75202, or
such other time, date and place as the parties shall agree.
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Section 1.3 Effects of the Merger. Subject to Sections 1.4 and 1.5, the
Merger shall have the effects set forth in the applicable provisions of the
TBCA. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time all the property, rights, privileges, immunities, powers and
franchises of Parent and Merger Sub shall vest in the Surviving Corporation, and
all debts, liabilities and duties of Parent and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
Section 1.4 Articles of Incorporation; Bylaws.
---------------------------------
(a) At the Effective Time and without any further action on
the part of Parent or Merger Sub, the Articles of Incorporation of
Merger Sub as in effect immediately prior to the Effective Time, as
amended or provided in the Articles of Merger, shall be the Articles of
Incorporation of the Surviving Corporation until thereafter amended as
provided therein and under the TBCA.
(b) At the Effective Time and without any further action on
the part of Parent or Merger Sub, the bylaws of Merger Sub shall be the
bylaws of the Surviving Corporation and thereafter may be amended or
repealed in accordance with their terms or the terms of the articles of
incorporation of the Surviving Corporation and as provided by law.
Section 1.5 Directors and Officers.
----------------------
(a) At the Effective Time, the directors of Parent shall serve
as directors of the Surviving Corporation until their successors shall
have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving
Corporation's Articles of Incorporation and Bylaws.
(b) At the Effective Time, the officers of Parent shall serve
as officers of the Surviving Corporation, in the capacities
set forth opposite their names, until their successors shall have been
duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's
Articles of Incorporation and Bylaws.
Section 1.6 Effect on Capital Stock. At the Effective Time, by virtue
of the Merger and without any action on the part of Parent of Merger Sub any
holder of any shares of capital stock of Parent:
(a) Each share of Parent Common Stock that is held in the
treasury of Parent or of any of its subsidiaries shall be canceled and retired
and no capital stock of the Surviving Corporation, or other consideration shall
be paid or delivered in exchange therefore.
(b) Each remaining outstanding share of Parent Common Stock
shall be converted into the right to receive one share of Surviving Corporation
Common Stock (the "Merger Consideration").
(c) Each share of Merger Sub Common Stock issued and
outstanding immediately prior to the Effective Date shall be shall be canceled
and retired.
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Section 1.7 Stock Options. All stock options outstanding at the
Effective Time under Parent Stock Options shall be converted in accordance with
this Agreement and the terms of the Parent Stock Options into options to receive
shares of the Surviving Corporation upon the same terms and conditions as in
existence immediately prior to the Effective Time.
Section 1.8 Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of Parent or Merger Sub, any
deeds, bills of sale, assignments or assurances and to take and do, in the name
and on behalf of Parent or Merger Sub, any other actions and things to vest,
perfect or confirm of record or otherwise in the Surviving Corporation any and
all right, title and interest in, to and under any of the rights, properties or
assets acquired or to be acquired by the Surviving Corporation as a result of,
or in connection with, the Merger.
Section 1.9 Certain Adjustments. If, between the date of this Agreement
and the Effective Time, the outstanding shares of Parent Common Stock shall have
been changed into a different number of shares or different class of stock by
reason of any reclassification, recapitalization, stock split, split-up,
combination or exchange of shares, or a stock dividend or dividend payable in
any other securities shall be declared with a record date within such period, or
any similar event shall have occurred, the Merger Consideration shall be
appropriately adjusted to provide the holders of Parent Common Stock the same
economic effect, voting rights and other terms and designations as contemplated
by this Agreement prior to any such event.
ARTICLE II
CONDITIONS
Section 2.1 Conditions to the Obligations of Each Party. The
obligations of Parent and Merger Sub to consummate the Merger are subject to the
satisfaction (or, if permissible, waiver by the party for whose benefit such
conditions exist) of the following conditions:
(a) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction or other order issued by any
court of competent jurisdiction or other Governmental Entity of
competent jurisdiction or other legal restraint or prohibition
preventing or making illegal the consummation of the Merger shall be in
effect; provided, however, that the parties hereto shall use all
commercially reasonable efforts to have any such injunction, order,
restraint or prohibition vacated.
(b) Governmental and Regulatory Approvals. All regulatory
approvals and other actions or approvals by any Governmental Entity
required to permit the consummation of the Merger shall have been
obtained and such approvals shall be in full force and effect.
(c) Shareholder Approval. The shareholders of Parent shall
have approved the Merger in accordance with the CBCA.
ARTICLE III
TERMINATION
Section 3.1 Termination. This Agreement may be terminated and the
Merger contemplated herein may be abandoned at any time prior to the Effective
Time, whether before or after Parent Shareholder Approval shall have been
received.
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(a) by the mutual written consent of Parent and Merger Sub; or
(b) by either Parent or Merger Sub if any Governmental Entity
shall have issued an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order, decree,
ruling or other action shall have become final and nonappealable.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented in any and all respects by
written agreement of the parties hereto, pursuant to action taken by their
respective Boards of Directors, at any time prior to the Effective Time with
respect to any of the terms contained herein.
Section 4.2 Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the Confidentiality Agreements (including the exhibits hereto and
the documents and the instruments referred to herein and therein): (a)
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and (b) are not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
Section 4.3 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby may be consummated as
originally contemplated to the fullest extent possible.
Section 4.4 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Texas.
Section 4.5 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
Section 4.6 Headings. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not affect in any way the meaning or
interpretation of this Agreement. References to Articles or Sections, unless
otherwise specified, are to Articles and Sections of this Agreement.
IN WITNESS WHEREOF, Parent and Merger Sub caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
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MB SOFTWARE CORPORATION
By: /S/ Scott A. Haire
Name Scott A. Haire
Title: Chief Executive Officer and
President
EAPPLIANCE INNOVATIONS, INC..
By: /S/ Scott A. Haire
Name Scott A. Haire
Title: Chief Executive Officer and
President
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EXHIBIT A
Definitions
"Business Day" means any day other than a Saturday, a Sunday, or a bank
holiday in the State of Delaware.
"CBCA" shall mean the Colorado Business Corporation Act.
"Closing" shall mean the closing of the Merger.
"Closing Date" shall mean the date of Closing.
"Effective Time" shall have the meaning set forth in Section 1.2.
"Governmental Entity" shall mean any United States or foreign court,
arbitral tribunal, administrative agency or commission or other governmental or
other regulatory authority, body, commission or agency.
"Parent Common Stock" shall mean the common stock, par value $0.001 per
share, of MB Software Corporation.
"Parent Shareholder Approval" shall mean approval of the Merger by the
shareholders of Parent in accordance with the CBCA.
"Parent Stock Option" shall mean each outstanding option to purchase
shares of the Parent Common Stock issued pursuant to any of Parent's stock
option plans.
"Merger Consideration" shall have the meaning set forth in Section
1.6(a)
"Merger Sub Common Stock" shall mean the common stock, par value $.001
per share, of Merger Sub.
"Surviving Corporation" shall have the meaning set forth in Section
1.1.
"Surviving Common Stock" shall mean Merger Sub Common Stock from and
after th Effective Date.
"TBCA" shall mean the Texas Business Corporation Act.
A-1
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
MB SOFTWARE CORPORATION
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation.
FIRST: The name of the corporation is MB Software Corporation.
SECOND: The Articles of Incorporation in effect on the date hereof is
hereby amended by replacing ARTICLE FOUR in its entirety as follows:
ARTICLE FOUR
The aggregate number of shares of capital stock that the Corporation
will have authority to issue is twenty million (25,000,000), twenty million
(20,000,000) of which will be shares of Common Stock, having a par value of
$.001 per share, and five million (5,000,000) of which will be shares of
preferred stock, having a par value of $10 per share.
Preferred stock may be issued in one or more series as may be
determined from time to time by the Board of Directors. All shares of any one
series of preferred stock will be identical except as to the date of issue and
the dates from which dividends on shares of the series issued on different dates
will cumulate, if cumulative. Authority is hereby expressly granted to the Board
of Directors to authorize the issuance of one or more series of preferred stock,
and to fix by resolution or resolutions providing for the issue of each such
series the voting powers, designations, preferences, and relative,
participating, optional, redemption, conversion, exchange or other special
rights, qualifications, limitations or restrictions of such series, and the
number of shares in each series, to the full extent now or hereafter permitted
by law.
THIRD: The stockholders of the Corporation duly adopted resolutions
approving the above-referenced amendment by written consent on June 14, 2002 in
accordance with the provisions of Article 9.10A of the Texas Business
Corporation Act.
FOURTH: The number of shares of the corporation outstanding at the time
of such adoption was 82,700,000 shares of Common Stock, $.001 par value; and the
number of shares entitled to vote thereon was 82,700,000.
FIFTH: The number of shares voted for such amendment was 42,028,101. No
shares were voted against such amendment
********
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be signed and attested as of the 24th day of June, 2002.
MB SOFTWARE CORPORATION
By: /s/ Scott A. Haire
-----------------------------------------
Name: Scott A. Haire Title: President and Chief Executive Officer
CERTIFICATE OF THE DESIGNATIONS, NUMBER
VOTING POWERS, PREFERENCES AND RIGHTS OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
MB SOFTWARE CORPORATION
Pursuant to Section 2.13 of the
Business Corporation Act of the State of Texas
MB Software Corporation, a corporation organized and existing under the
Business Corporation Act of the State of Texas (the "Corporation"),
DOES HEREBY CERTIFY:
That, pursuant to the authority expressly vested in the Board of
Directors of the Corporation (the "Board of Directors") by Article Four of the
Articles of Incorporation of the Corporation, as amended (the "Articles of
Incorporation"), the Board of Directors duly adopted, by written consent dated
as of October 31, 2007, a resolution providing for the creation of a series of
preferred stock, par value $10.00 per share (the "Preferred Stock"), consisting
of 51,000 shares of Series A Convertible Preened Stock, which resolution is as
follows:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation by the provisions of
Article Four of the Restated Articles of Incorporation of the
Corporation, the Board of Directors hereby mates a series of preferred
stock, par value $10.00 per share, of the Corporation, and hereby fixes
the designations, powers, preferences and relative participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereon, of the shares of such series, in addition to those
set forth in the Articles of Incorporation, as follows:
1. Designation and The shares of such series shall be designated "Series
A Convertible Preferred Stock" (the "Series A Stock") and the number of shares
constituting such series shall be 51,000.Designation
A. Designation. Fifty One Thousand (51,000) shares of the authorized
preferred stock, $10.00 par value per share, are hereby designated as
"Series A Convertible Preferred Stock' ("Series A Preferred"). The Series A
Stock shall have rights and preferences relative to all other classes and
series of the capital stock of the Corporation as set forth herein.
B. Dividends. Holders of shares of Series A Stock shall participate on
an "as converted" basis with the holders of common stock, par value 50.001
per share, of the Corporation (the "Common Stock"), with respect to the
payment of any dividends by the Corporation.
C. Liquidation. Holders of shares of Series A Stock shall participate
on an "as converted" basis with the holders of Common Stock with respect to
the payment of the proceeds of the Corporation from the liquidation,
dissolution or winding up of the Corporation, either voluntary or
involuntary.Voting
D. Voting. The holders of shares of Series A Stock shall vote together
with the holders of Common Stock as a single class. The holder of each sham
of Series A Stock (i) shall be entitled to the number of votes with to such
share equal to the number of shares of Common Stock into which such share
of Series A Stock could be converted on the record date for the subject
vote or written consent (or, there is no such record date, then on the date
that such vote is taken or consent is effective) and (ii) shall be entitled
to notice of any stockholders' meeting in accordance with the Bylaws o the
Corporation. Fractional votes shall not be permitted, and any fractional
voting rights resulting from the above formula (after aggregating all
shares of Common Stock into which shares; of Series A Stock held by each
holder could be converted) shall be reduced to the nearest whole number.
E. Automatic Conversion
(i) Each share of Series A Stock shall automatically be converted
into ten (100) shares of Common Stock (as the same may be equitably
adjusted after the date of issuance for any stock splits,
combinations, consolidations, recapitalizations, reorganizations,
reclassifications, stock distributions, stock dividends or other
similar events) at such time as the shareholders of the Corporation
have approved an amendment to the Articles of Incorporation of the
Corporation increasing the authorized shares of Common Stock of the
Corporation from 20,000,000 shams to 100,000,000 shares (
"Amendment'). The Corporation expects to receive such approval at its
next annual meeting of shareholders, which is scheduled to be held in
February. Holders of at least 65% of the issued and outstanding shares
of Common Stock have indicated that they will vote in favor of such
amendment. Following approval of the Amendment by the shareholders of
the Corporation, and filing of the same with the Secretary of State of
Texas, the Corporation shall give written notice thereof to all
holders of record of shares of Series A Stock. Such notice shall be
sent by first class mail, postage prepaid, to each holder of record of
Series A Stock at such holder's address as shown in the records of the
Corporation. Each holder of shares of the Series A Stock shall
surrender the certificate or certificates for all such shares to the
Corporation at the place designated in such notice and shall
thereafter receive certificates for the numb of shares of Common Stock
to which such bolder is entitled. Notwithstanding anything herein to
the contrary, shares of Series A Stock shall be deemed to have been
converted upon filing of the Amendment with the Secretary of State of
Texas.
(ii) The Corporation shall pay any and all issue and other taxes
that may be payable in respect of any issue or delivery of shares of
Common Stock on conversion of Series A Stock pursuant hereto.
(iii) All shares of Common Stock that may be issued upon
conversion of the shares of Series A Stock will upon issuance by the
Corporation be validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance
thereof.
(iv) The Corporation will not, by amendment of the Articles of
Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder
by the Corporation.
F. Amendment Waiver, Any term of the Series A Stock may be amended or
waived upon the written consent of the Corporation and the holders of at
least a majority of the Series A Stock then outstanding, voting together as
a single class.
G. Action By Holden Any action or consent to be taken or given by the
holders of the Series A Stock may be given either at a meeting of the
holders of the Series A Stock called and held for such purpose or by
written consent.
IN WITNESS WHEREOF, MB Software Corporation has caused this Certificate
to be signed by Scott A. Haire, its Chief Executive Officer, this 30 day of
November, 2007.
MB SOFTWARE CORPORATION
By: Scott A. Haire
---------------
Scott A. Haire
Chief Executive Officer
CERTIFICATE OF CORRECTION
OF
MB SOFTWARE CORPORATION
MB Software Corporation, a corporation organized and existing under the
business corporation act of the State of Texas (the "Corporation"), submits this
Certificate of Correction to correct a document that contains an inaccurate or
erroneous statement.
1. The name of the entity is MB Software Corporation. The filing number
of the entity is 800036706.
2. The document to be corrected is the Corporation's Certificate of the
Designations, Number, Voting Powers, Preferences and Rights of Series A
Convertible Preferred Stock, filed with the Texas Secretary of State on November
30, 2007 (the "Certificate of Designations").
3. Section 1.E.(i) of the Certificate of Designations contained an
error in the conversion ratio of the preferred stock. The full text of Section
1.E.(i), as corrected, is set forth below:
E. Automatic Conversion.
(i) Each share of Series A Stock shall automatically be converted
into fifty-one hundred (5,100) shares of Common Stock (as the same may
be equitably adjusted after the date of issuance for any stock splits,
combinations, consolidations, recapitalizations, reorganizations,
reclassifications, stock distributions, stock dividends or other
similar events) at such time as the shareholders of the Corporation
have approved an amendment to the Articles of Incorporation of the
Corporation increasing the authorized shares of Common Stock of the
Corporation from 20,000,000 shares to 100,000,000 shares (the
"Amendment"). The Corporation expects to receive such approval at its
next annual meeting of shareholders, which is scheduled to be held in
February. Holders of at least 65%% of the issued and outstanding
shares of Common Stock have indicated that they will vote in favor of
such amendment. Following approval of the Amendment by the
shareholders of the Corporation, and filing of the same with the
Secretary of State of Texas, the Corporation shall give written notice
thereof to all holders of record of shares of Series A Stock. Such
notice shall be sent by first class mail, postage prepaid, to each
holder of record of Series A Stock at such holder's address as shown
in the records of the Corporation. Each holder of shares of the Series
A Stock shall surrender the certificate or certificates for all such
shares to the Corporation at the place designated in such notice and
shall thereafter receive certificates for the number of shares of
Common Stock to which such holder is entitled. Notwithstanding
anything herein to the contrary, shares of Series A Stock shall be
deemed to have been converted upon the filing of the Amendment with
the Secretary of State of Texas.
6. The Certificate of Designations contained an inaccurate or erroneous
statement. This Certificate of Correction is submitted for the purpose of
correcting the Certificate of Designations.
7. After the Secretary of State files this Certificate of Correction,
the Certificate of Designations will be considered to have been corrected on the
date the Certificate of Designations was originally filed, except as to persons
adversely affected. As to persons adversely affected by the correction set forth
in this Certificate of Correction, the Certificate of Designations will be
considered to have been corrected on the date this Certificate of Correction is
filed with the Secretary of State.
IN WITNESS WHEREOF, MB Software Corporation has caused this Certificate
to be signed by Lucy J. Singleton, its Secretary, this 25th day of January,
2008.
MB SOFTWARE CORPORATION
By: /s/ Lucy J. Singleton
---------------------
Lucy J. Singleton
Secretary
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