EXHIBIT 4.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CATALINA LIGHTING, INC.
(as amended by Articles of Amendment
filed July 3, 2001, November 7, 2001 and April 4, 2002)
ARTICLE 1 NAME
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The name of this corporation shall be CATALINA LIGHTING, INC. whose
principal place of business is at 6073 N.W. 167th Street, Suite C-16, Miami,
Florida 33015.
ARTICLE II NATURE OF BUSINESS AND POWERS
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The general nature of the business to be transacted by this corporation
is to engage in any and all business permitted under the laws of the United
States and the State of Florida.
ARTICLE III CAPITAL
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(1) The aggregate number of shares which the Corporation shall have
the authority to issue is Twenty Million (20,000,000) shares of Common Stock,
having a par value of one cent ($.01) per share, and One Million (1,000,000)
shares of Preferred Stock, having a par value of one cent ($.01) per share.
Effective as of 8:00 a.m. on April 8, 2002 (the "Effective Time"), every
five shares of Common Stock, par value $.01 per share, of the Corporation issued
and outstanding or held in treasury immediately prior to the Effective Time (the
"Old Common Stock") shall automatically be combined (the "Reverse Stock Split"),
without any action on the part of the holder thereof, into one share of Common
Stock, par value $.01 per share (the "New Common Stock"). The Corporation shall
not issue fractional shares on account of the Reverse Stock Split. In lieu of
any fractional share to which a holder would otherwise be entitled, the
Corporation shall issue a full share. Whether or not fractional shares would be
issuable upon such combination shall be determined on the basis of the total
number of shares of Old Common Stock held by such holder and the total number of
shares of New Common Stock issuable to such holder as a result of the Reverse
Stock Split.
(2) Of the 1,000,000 shares of Preferred Stock, 200,000 shares shall
be designated "Series A Preferred Stock". The voting rights, designation,
powers, preferences and relative participating, optional or other special rights
and the qualifications, limitations or restrictions of the Series A Preferred
Stock are as set forth below.
1. Designation and Amount. The shares of such series will be
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designated as "Series A Junior Participating Preferred Stock" and the
number of shares constituting such series will be 200,000. Such number of
shares may be increased or decreased by resolution of this Board;
provided, that no decrease will reduce the number of shares of Series A
Junior Participating Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance
upon the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series A Junior Participating Preferred Stock.
2. Dividends and Distributions.
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(a) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating
Preferred Stock will be entitled to receive, when, as and if declared by
this Board out of funds legally available for the purpose, quarterly
dividends payable in cash on the 15th day of January, April, July and
October of each year (each, a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $0.25 or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the aggregate
per share amount of all cash dividends, and 1,000 times the aggregate per
share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock or
a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the common stock, par value
$0.01 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series A Junior Participating
Preferred Stock. In the event the Corporation at any time after November
21, 2000 (the "Rights Declaration Date") (i) declares any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivides the
outstanding Common Stock or (iii) combines the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to
which holders of shares of Series A Junior Participating Preferred Stock
were entitled immediately prior to such event under clause (b) of the
preceding sentence will be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(b) The Corporation will declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in paragraph
(a) above as a condition to declaration of a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event that no dividend or distribution has
been declared on the Common Stock during the period between any Quarterly
Dividend Payment Date, a dividend of $0.25 per share on the Series A
Junior Participating Preferred Stock will nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends will begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such
shares of Series A Junior Participating Preferred Stock, unless the date
of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
will begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which
events such dividends will begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends will not
bear interest. Dividends paid on the shares of Series A Junior
Participating Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares will be
allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. This Board may fix a record date for the determination
of holders of shares of Series A Junior Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date will be no more than 30 days prior to the date
fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Junior
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Participating Preferred Stock will have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Participating Preferred Stock will entitle
the holder thereof to 1 vote on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation at any time
after the Rights Declaration Date (i) declares any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivides the outstanding
Common Stock or (iii) combines the outstanding Common Stock into a
smaller number of shares, then in each case the number of votes per share
to which holders of shares of Series A Junior Participating Preferred
Stock were entitled immediately prior to such event will be adjusted by
multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, holders of Series A
Junior Participating Preferred Stock will have no special voting rights
and the holders of shares of Series A Junior Participating Preferred
Stock and the holders of shares of Common Stock will vote together as one
class on all matters submitted to a vote of stockholders of the
Corporation.
4. Certain Restrictions.
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(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series
A Junior Participating Preferred Stock outstanding have been paid in
full, the Corporation will not:
(i) declare or pay dividends on, make any other distribution
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the
Series A Junior Participating Preferred Stock and all such parity stock
on which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
any shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Junior Participating Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred Stock, or any
shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except (i) in exchange for shares of any
stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Junior
Participating Preferred Stock, or (ii) in accordance with a purchase
offer made in writing or by publication (as determined by this Board) to
all holders of such shares upon such terms as this Board, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, determines
in good faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation will not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(a) of this Section 4, purchase or otherwise acquire such shares at such
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time and in such manner.
5. Reacquired Shares. Any shares of Series A Junior Participating
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Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever will be retired and cancelled promptly after the
acquisition thereof. All such shares will upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as
Series A Junior Participating Preferred Stock or as part of a new series
of Preferred Stock to be created by resolution or resolutions of this
Board, subject to the conditions and restrictions on issuance set forth
herein.
6. Liquidation, Dissolution or Winding Up.
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(a) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution will be made to the
holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of
shares of Series A Junior Participating Preferred Stock will have
received $1,000 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date
of such payment (the "Series A Liquidation Preference"). Following the
payment of the full amount of the Series A Liquidation Preference, no
additional distributions will be made to the holders of shares of Series
A Junior Participating Preferred Stock unless, prior thereto, the holders
of shares of Common Stock will have received an amount per share (the
"Common Adjustment") equal to the quotient obtained by dividing (i) the
Series A Liquidation Preference by (ii) 1,000 (as appropriately adjusted
as set forth in subparagraph (c) below to reflect such events as stock
splits, stock dividends and recapitalizations with respect to the Common
Stock) (such number in clause (ii), the "Adjustment Number"). Following
the payment of the full amount of the Series A Liquidation Preference and
the Common Adjustment in respect of all outstanding shares of Series A
Junior Participating Preferred Stock and Common Stock, respectively,
holders of Series A Junior Participating Preferred Stock and holders of
shares of Common Stock will receive their ratable and proportionate share
of remaining assets to be distributed in the ratio of the Adjustment
Number to one (1) with respect to such Preferred Stock and Common Stock,
on a per share basis, respectively.
(b) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
Preferred Stock, if any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets will be
distributed ratably to the holders of such parity shares in proportion to
their respective liquidation preferences. In the event that there are not
sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets will be distributed ratably to the
holders of Common Stock.
(c) In the event the Corporation at any time after the Rights
Declaration Date (i) declares any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivides the outstanding Common Stock or
(iii) combines the outstanding Common Stock into a smaller number of
shares, then in each such case the Adjustment Number in effect
immediately prior to such event will be adjusted by multiplying such
Adjustment Number by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
7. Consolidation, Merger, etc. If the Corporation enters into any
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consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the
shares of Series A Junior Participating Preferred Stock will at the same
time be similarly exchanged or changed in an amount per share (subject to
the provision for adjustment hereinafter set forth) equal to 1,000 times
the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share
of Common Stock is changed or exchanged. In the event the Corporation at
any time after the Rights Declaration Date (i) declares any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivides the
outstanding Common Stock or (iii) combines the outstanding Common Stock
into a smaller
number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series A Junior Participating Preferred Stock will be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
8. No Redemption. The shares of Series A Junior Participating
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Preferred Stock will not be redeemable.
9. Ranking. The Series A Junior Participating Preferred Stock will
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rank junior to all other series of the Corporation's preferred stock, if
any, as to the payment of dividends and the distribution of assets,
unless the terms of any such series provide otherwise.
10. Amendment. If there is any Series A Junior Participating Preferred
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Stock outstanding, the Amended and Restated Certificate of Incorporation
of the Corporation will not be further amended in any manner that would
materially alter or change the powers, preferences or special rights of
the Series A Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior Participating Preferred
Stock, voting separately as a class.
11. Fractional Shares. Series A Junior Participating Preferred Stock
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may be issued in fractions of a share, which will entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and have the benefit of
all other rights of holders of Series A Junior Participating Preferred
Stock.
ARTICLE IV DURATION
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The duration of the Corporation shall be perpetual.
ARTICLE V DIRECTORS
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The number of directors of this Corporation are as fixed in the
By-Laws.
ARTICLE VI REGISTERED OFFICE
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The address of the Registered Office of said corporation shall be One
CenTrust Financial Center, 100 S.E. 2nd Street, Miami, Florida 33131.
The registered agent at that address is Florida Registered Agents, Inc.