Exhibit 4.1
CERTIFICATE OF THE DESIGNATION
OF THE SERIES H CONVERTIBLE PREFERRED STOCK
OF WESTMARK GROUP HOLDINGS, INC.
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Pursuant to Title 8, Section 151 of the Delaware Code
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The undersigned, being the Secretary of Westmark Group Holdings, Inc.,
a Delaware corporation (hereinafter called the "Corporation"), does hereby
certify that at a meeting of the Board of Directors of the Corporation duly
held, pursuant to Title 8, Section 141 of the Delaware Code and the bylaws of
the Corporation, the following resolution was duly adopted:
RESOLVED that, pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation (the "Board') by the
provisions of the Certificate of Incorporation of the Corporation, as amended,
the Board hereby creates a series of the preferred stock of the Corporation to
consist of 759,000 shares. The Board hereby fixes the designations, preferences
and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of such
series (in addition to the designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, set forth in the certificate of
incorporation of the Corporation which are applicable to the preferred stock of
all series) as follows:
a series of preferred stock to be known as "Series H
Convertible Preferred Stock," the number of shares
constituting Series H Convertible Preferred Stock shall be
759,000, par value $.001 per share.
The designations, powers, preferences and relative participating, optional or
other special rights, and the qualifications, limitations and restrictions
thereof in respect of the Series H Convertible Preferred Stock are as follows:
1. Dividends.
(a) The holders of each share of Series H Convertible
Preferred Stock shall be entitled to receive, before any dividends shall be
declared and paid upon or set aside for the Junior Stock (as defined in Section
9 hereof) in any year, commencing with the calendar year ending December 31,
1999, out of funds legally available for that purpose, dividends in cash (the
"Annual Dividend") at the annual rate per share equal to ten percent (10%) of
the Preferred Distribution Preference Per Share (as defined in Section 9 hereof)
as of the date of such declaration, payable when and as declared by the Board of
Directors of the Corporation (any such dividend payment date being hereinafter
referred to as a "Dividend Payment Date"). Annual Dividends on shares of Series
H Convertible Preferred Stock shall be cumulative (whether or not there shall be
net profits or net assets of the Corporation legally available for the payment
of such dividends), so that if at any time accrued Annual Dividends on the
Series H
Convertible Preferred Stock shall not have been paid or declared and a sum
sufficient for payment thereof set apart, (i) no dividend shall be declared or
paid or any other distribution ordered or made upon any Junior Stock or any sum
or sums set aside for or applied to the purchase or redemption of any shares of
any stock; and (ii) no dividends shall be declared or paid to holders of shares
of stock ranking on parity with the Series H Convertible Preferred Stock, unless
the holders of each share of Series H Convertible Preferred Stock share ratably
in any such dividend declaration or payment up to the aggregate amount of any
accrued Annual Dividends.
2. VOTING RIGHTS. Except as otherwise required by law, the
shares of Series H Convertible Preferred Stock shall not be entitled to vote on
any matters presented at any annual or special meeting of the stockholders of
the Corporation or to be taken by written consent of the stockholders of the
Corporation.
3. REACQUIRED SHARES. Any shares of Series H Convertible
Preferred Stock converted, purchased or otherwise acquired by the corporation in
any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. None of such shares of Series H Convertible Preferred Stock
shall be reissued by the Corporation.
4. LIQUIDATION, DISSOLUTION OR WINDING UP.
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(a) Upon the voluntary or involuntary dissolution,
liquidation or winding up (each, a "Liquidation") of the Corporation, the
holders of the shares of the Series H Convertible Preferred Stock shall be
entitled to receive and to be paid out of the assets of the Corporation
available for distribution to its stockholders, before any payment or
distribution shall be made on any Junior Stock ( and ratably with holders of
shares of stock ranking on parity with the Series H Convertible Preferred
Stock), the Preferred Distribution Preference Per Share (as defined in Section 9
hereof) plus all accrued Annual Dividends with respect to each outstanding share
of Series H Convertible Preferred Stock.
(b) If upon any such Liquidation, whether voluntary or
involuntary, the assets to be distributed to the holders of the Series H
Convertible Preferred Stock shall be insufficient to permit payment of the full
amount of the Preferred Distribution Preference Per Share plus all accrued
Annual Dividends with respect to each share of Series H Convertible Preferred
Stock, then the entire assets of the Corporation to be distributed among the
holders of the Series H Convertible Preferred Stock shall be distributed ratably
among such holders.
(c) Neither the consolidation, merger or other business
combination of the Corporation with or into any other Person or Persons nor the
sale of all or substantially all the assets of the Corporation shall be deemed
to be a Liquidation for purposes of this Section 4.
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5. CONVERSION.
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(a) Subject to the adjustments provided for in Subsection
(c) of this Section 5, each share of Series H Convertible Preferred Stock shall
be convertible at any time at the election of the holder into Common Stock on a
one-for-one basis (the "Conversion Ratio").
(b) The Corporation shall at all times reserve and keep
available for issuance upon the conversion of the Series H Convertible Preferred
Stock, free from any preemptive rights, such number of its authorized but
unissued shares of Common Stock as will from time to time be necessary to permit
the conversion of all outstanding shares of Series H Convertible Preferred Stock
into shares of Common Stock, and shall take all action required to increase the
authorized number of shares of Common Stock if necessary to permit the
conversion of all outstanding shares of Series H Convertible Preferred Stock.
(c) The Conversion Ratio will be subject to adjustment from
time to time as follows:
(i) In case the Corporation shall at any time or from
time to time after the date hereof (A) pay any dividend, or make any
distribution, on the outstanding shares of Common Stock in shares of Common
Stock, (B) subdivide the outstanding shares of Common Stock, (C) combine the
outstanding shares of Common Stock into a smaller number of shares or (D) issue
by reclassification of the shares of Common Stock any shares of capital stock of
the Corporation, then, and in each such case, the Conversion Ratio in effect
immediately prior to such event or the record date therefor, whichever is
earlier, shall be adjusted so that the holder of any shares of Series H
Convertible Preferred Stock thereafter convertible into Common Stock pursuant to
this Section Five shall be entitled to receive the number and type of shares of
Common Stock or other securities of the Corporation which such holder would have
owned or have been entitled to receive after the happening of any of the events
described above, had such shares of Series H Convertible Preferred Stock been
converted into Common Stock immediately prior to the happening of such event of
the record date therefor, whichever is earlier. An adjustment made pursuant to
this clause (i) shall become effective (x) in the case of any such dividend or
distribution, immediately after the close of business on the record date for the
determination of holders of shares of Common Stock entitled to receive such
dividend or distribution, or (y) in the case of such subdivision,
reclassification or combination, at the close of business on the day upon which
such corporate action becomes effective.
(ii) For purposes of this paragraph (c) of this
Section Five, the number of shares of Common Stock at any time outstanding shall
mean the aggregate of all shares of Common Stock then outstanding (other than
any shares of Common Stock then owned or held by or for the account of the
Corporation) treating for purposes of this calculation all securities
convertible into, or exchangeable or exercisable for, any shares of Common Stock
(collectively, "Common Stock Equivalents") as having been converted, exchanged
or exercised.
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(iii) If the Corporation shall take a record of the
holders of its Common Stock for the purpose of entitling them to receive a
dividend or other distribution and shall thereafter, and before such dividend or
distribution is paid or delivered to stockholders entitled thereto, legally
abandon its plan to pay or deliver such dividend or distribution, then no
adjustment in the Conversion Ratio then in effect shall be made by reason of the
taking of such record, and any such adjustment previously made as a result of
the taking of such record shall be reversed.
(d) The issuance of certificates for shares of Common Stock
upon conversion of the Series H Convertible Preferred Stock, shall be made
without charge to the holders thereof for any issuance tax in respect thereof,
provided that the Corporation 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 H Convertible
Preferred Stock which is being converted.
(e) The Corporation will at no time close its transfer
books against the transfer of the Series H Convertible Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares of
the Series H Convertible Preferred Stock, in any manner which interferes with
the timely conversion of the Series H Convertible Preferred Stock, except as may
otherwise be required to comply with applicable securities laws.
(f) As used in this Section 5, the term "Common Stock"
shall mean the Corporation's authorized Common Stock, par value $.005 per share,
as constituted on the Filing Date (as defined below), and shall also include any
capital stock of any class of the Corporation thereafter authorized which shall
neither be limited to a fixed sum or percentage in respect of the rights of the
holders thereof to participate in dividends nor be entitled to a preference in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up the Corporation; provided that the shares of Common
Stock receivable upon conversion of shares of the Series H Convertible Preferred
Stock shall include only shares designated as Common Stock of the Corporation on
the Filing Date, or in case of any reorganization or reclassification of the
outstanding shares thereof, the stock, securities or assets to be issued in
exchange for such Common Stock pursuant thereto.
(g) In the case of a Sale of Corporation (as defined in
Section 9 below) or a proposed reorganization of the Corporation or a proposed
reclassification or recapitalization of the capital stock of the Corporation,
appropriate adjustment (as determined by the Board of Directors) shall be made
in the application of the provisions herein set forth with respect to the rights
and interest thereafter of the holders of the Series H Convertible Preferred
Stock, to the end that the provisions set forth herein (including provisions
with respect to changes in and other adjustments of the applicable conversion
price) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter deliverable upon
the conversion of the Series H Convertible Preferred Stock. The Corporation
shall not effect any
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such Sale of the Corporation unless prior to or simultaneously with the
consummation thereof the successor corporation or purchaser, as the case may be,
shall assume by written instrument the obligation to deliver to the holders of
the Series H Convertible Preferred Stock such shares of stock, securities or
assets as, in accordance with the foregoing provisions, each such holder is
entitled to receive.
(h) The Corporation will not, by amendment of its Articles
of Incorporation or through any reorganization, recapitalization, 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, but
will at all times in good faith assist in the carrying out of all the provisions
of this Section 5 and in the taking of all such action as may be necessary or
appropriate in order to protect the conversion rights of the holders of the
Series H Convertible Preferred Stock against impairment.
(i) Notwithstanding the foregoing, the Corporation shall
not be required to make any adjustment of the Conversion Ratio unless such
adjustment would require an increase or decrease of at least 1% in such ratio.
Any lesser adjustment shall be carried forward and shall be made at the time of
and together with the next subsequent adjustment which, together with any
adjustment or adjustments so carried forward, shall amount to an increase or
decrease of at least 1% in such ratio.
6. CERTAIN COVENANTS. Any registered holder of Series H
Convertible Preferred Stock may proceed to protect and enforce its rights and
the rights of any other holders of Series H Convertible Preferred Stock with any
and all remedies available at law or in equity.
7. PROTECTIVE PROVISIONS. So long as shares of Series H
Convertible Preferred Stock (or securities convertible into, or exchangeable or
exercisable for, shares of Series H Convertible Preferred Stock ("Series H
Equivalents")) are outstanding, the Corporation shall not without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of at least a majority of the then outstanding shares of Series H
Convertible Preferred Stock:
(a) alter or change the rights, preference or privileges of
the shares of Series H Convertible Preferred Stock or otherwise amend the
Corporation's Articles of Incorporation so as to affect adversely the shares of
Series H Convertible Preferred Stock; or
(b) increase the authorized number of shares of Series H
Convertible Preferred Stock; or
(c) create or designate, or authorize the issuance of, any
new class or series of stock (i) ranking senior or having a preference over, the
Series H Convertible Preferred Stock with respect to dividends or upon
liquidation, or (ii) convertible into any such class or series of stock.
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8. REDEMPTION.
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(a) Outstanding shares of Series H Preferred Convertible Stock
are redeemable by the Corporation at a redemption price of $.01 per share, plus
all dividends accrued and unpaid up to the date fixed for redemption, provided
the Market Price of the Corporation's Common Stock has been at least 200% of the
Preferred Distribution Preference Per Share for a period of at least 30
consecutive trading days immediately prior to the date on which the Corporation
sends notice of redemption.
(b) If less than all shares of Series H Preferred Convertible
Stock are redeemed at any time under this Section 8, shares of Series H
Convertible Preferred Stock held by each holder of record thereof shall be
called for redemption pro rata, according to the number of shares of Series H
Convertible Preferred Stock held by such holder, subject, however, to such
adjustment as may be equitably determined by the Corporation in order to avoid
the redemption of fractional shares.
(c) Any such redemption shall be effected by written notice
given by mail, postage prepaid, not less than fifteen (15) days nor more than
thirty (30) days prior to the date fixed for redemption to the holders of record
of Series A Preferred Stock whose shares are to be redeemed at their respective
addresses as the same shall appear on the books of the Corporation. Each such
notice of redemption shall specify the date fixed for redemption, the redemption
price and place of payment in trust thereof, and if less than all outstanding
shares of Series H Convertible Preferred Stock are to be redeemed, the number of
shares of Series H Convertible Preferred Stock held by each holder of record
thereof which are being called for redemption. Any such notice mailed in the
manner provided herein shall be conclusively presumed to have been duly given in
accordance with the terms of this Designation, whether or not the holder
receives such notice. No failure to mail such notice nor any defect therein or
in the mailing thereof shall affect the validity of the proceedings for such
redemption except as to a holder whose name appears on the books of the
Corporation (i) to whom notice was not mailed or (ii) whose notice was
defective. An affidavit of the Secretary or Assistant Secretary of the
Corporation that notice of redemption has been mailed shall, in the absence of
fraud, be prima facie evidence of the facts stated therein. A holder of Series H
Convertible Preferred Stock may, at its sole option, convert the Series H
Convertible Preferred Stock called for redemption at any time up to one business
day prior to the date fixed for redemption. Any such conversion shall be made in
accordance with Section 5hereof.
(i) Notice of redemption having been duly given, then
on the date for such redemption, the certificates for the Series H
Convertible Preferred Stock called for redemption (whether or not
surrendered) shall be deemed no longer outstanding for any purpose, and
all rights with respect to such shares shall thereupon cease and
terminate,
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except the right of the holders of such shares to receive, out of the
deposit in trust, on the redemption date, the redemption price to
which they are entitled, without interest.
(ii) In case any certificate for shares of Series H
Convertible Preferred Stock shall be surrendered by the holder thereof
for payment in connection with the redemption of only a portion of the
shares represented thereby, the Corporation shall deliver to or upon
the order of the holder thereof a certificate or certificates for the
number of shares of Series H Convertible Preferred Stock represented by
such surrendered certificate which are not being redeemed.
9. DEFINITIONS. In addition to any other terms defined herein,
for purposes of this Certificate of Designation, the following terms shall have
the meanings indicated:
"Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the Florida are authorized or
obligated by law or executive order to close.
"Commission" shall mean the Securities and Exchange
Commission, and any successor agency.
"Conversion Ratio" determined as of any date, shall equal the
number of shares of Common Stock into which one share of Series H Convertible
Preferred Stock is convertible pursuant to Section 5 of this Certificate of
Designation.
"Distribution" shall mean the transfer of cash or property to
the holders of a class of capital stock of the Corporation, without
consideration, whether by way of dividend or otherwise (except a dividend in
shares of such class of stock), or the purchase or redemption of shares of the
Corporation, for cash or property, including such transfer, purchase or
redemption by a subsidiary of the Corporation. The time of any distribution by
way of dividends shall be the date of declaration thereof, and the time of any
distribution by purchase or redemption of shares shall be the date on which cash
or property is transferred by the Corporation, whether or not pursuant to a
contract of an earlier date; PROVIDED that, where a debt security is issued in
exchange for shares, the time of the distribution is the date when the
Corporation acquires the shares for such exchange.
"Junior Stock" shall mean any capital stock of the Corporation
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series H Convertible Preferred Stock, and shall include,
without limitation, the Corporation's Common Stock and Series G Convertible
Exchangeable Preferred Stock.
"Market Price" shall mean the closing bid price regular way
or, in case no such price is reported on such day, the average of the closing
bid and asked prices regular way, on the principal national securities exchange
in the United States on which the Corporation's common
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stock is listed or admitted to trading, including Nasdaq SmallCap, or if it is
not listed or admitted to trading on any such national securities exchange, the
average of the highest reported bid and lowest reported asked price as furnished
by the National Association of Securities Dealers, Inc. through its automated
quotation system ("Nasdaq") or a similar organization if Nasdaq is no longer
reporting such information.
"Preferred Distribution Preference Per Share" shall mean
$3.15.
"Person" shall mean any individual, firm, corporation,
partnership or other entity, and shall include any successor (by merger or
otherwise) of such entity.
"Sale of the Corporation" shall mean consolidation or merger
of the Corporation with or into any other corporation or corporations (other
than a consolidation or merger in which the Corporation is the continuing
corporation), or a sale, conveyance or disposition of all or substantially all
of the assets of the Corporation or the effectuation by the Corporation of a
transaction or series of related transactions in which more than fifty (50%)
percent of the voting power of the Corporation is disposed of.
IN WITNESS WHEREOF, the undersigned, as Secretary of the Corporation,
certifies that the foregoing Amendment was duly adopted in accordance with
Section 242 of the Delaware General Corporation Law, and the Corporation has
caused its corporate seal to be affixed hereto, all as of the 24th day of May
1999.
Westmark Group Holdings, Inc.
By: /s/ Mark D. Schaftlein
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Name: MARK D. SCHAFTLEIN
Title: President and CEO
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