Exhibit 3.2
ARTICLES OF AMENDMENT
CERTIFICATE OF DESIGNATION
OF THE
SERIES A CONVERTIBLE PREFERRED STOCK
(Par Value $0.01 Per Share)
OF
HEALTH EXPRESS USA, INC.
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The undersigned, a duly authorized officer of Health Express USA, Inc., a
Florida corporation (the "Company"), in accordance with the provisions of
Section 607.0602 of the Florida Business Corporation Act, DOES HEREBY CERTIFY
that the following resolution was duly adopted by the Board of Directors by
unanimous written consent pursuant to Section 607.0821 of the Florida Business
Corporation Act on June 17, 2005:
WHEREAS, that on June 17, 2005, the Board of Directors approved the
designation of Series A Convertible Preferred Stock, par value of $0.01 (the
"Series A Preferred Stock"), to consist of up to One Hundred Thousand (100,000)
shares, and fixed the powers, designations, preferences, and relative,
participating, optional and other special rights of the shares of such Series A
Preferred Stock;
WHEREAS, no shares of Series A Preferred Stock have been issued and the
Board of Directors has determined that it is in the best interests of the
Company to fix the powers, designations, preferences and relative,
participating, optional and other special rights for the Series A Preferred
Stock;
RESOLVED that the Series A Preferred Stock shall have the following
powers, designations, preferences and relative, participating, optional and
other special rights:
SECTION 1
DESIGNATION AND RANK
1.1. Designation. This resolution shall provide for a single series of
Preferred Stock, the designation of which shall be "Series A Convertible
Preferred Stock", par value $0.01 per share. The number of authorized shares
constituting the Series A Preferred Stock is One Hundred Thousand (100,000). The
Series A Preferred Stock will have no liquidation preference as set forth in
Section 3.1 below.
1.2. Rank. With respect to the payment of dividends and other
distributions on the capital stock of the Company, including the distribution of
the assets of the Company upon liquidation, the Series A Preferred Stock shall
be equal to the common stock of the Company, par value $0.001 per share (the
"Common Stock"), and junior to all other series of preferred stock.
SECTION 2
DIVIDEND RIGHTS
2.1. Dividends or Distributions. The holders of Series A Preferred Stock
shall be entitled to receive dividends or distributions on a pro rata basis
according to their holdings of shares of Series A Preferred Stock on an as
converted basis as provided in Section 4 hereof when and if dividends are
declared on the Common Stock of the Company by the Board of Directors of the
Company. Dividends shall be paid in cash or property, as determined by the Board
of Directors.
SECTION 3
LIQUIDATION RIGHTS
3.1. Liquidation Preference. The Series A Preferred Stock Shall have no
liquidation preference.
SECTION 4
CONVERSION RIGHTS
4.1. Conversion. Each share of Preferred Stock shall be convertible, at
the option of the respective holder thereof, subject to the limitations set
forth below, at any time at the office of the Corporation or at such other
additional office or offices, if any, as the Board of Directors may designate,
into 19,500 fully paid and non-assessable shares of Common Stock (the
"Conversion Price").
4.2. Adjustments. The Conversion Price of the Series A Preferred Stock as
described in Section 4.1 above shall be adjusted from time to time as follows:
(a) In the event the Company shall declare a distribution payable in
securities of other entities or persons, evidences of indebtedness issued by the
Company or other entities or persons, assets (excluding cash dividends) or
options or rights not referred to in Sections 4.2(a) above, the holders of the
Series A Preferred Stock shall be entitled to a proportionate share of any such
distribution as though they were the holders of the number of shares of Common
Stock of the Company into which their shares of Series A Preferred Stock are
convertible as of the record date fixed for the determination of the holders of
shares of Common Stock of the Company entitled to receive such distribution or
if no such record date is fixed, as of the date such distribution is made.
4.3. Procedures for Conversion.
(a) In order to exercise conversion rights pursuant to Section 4.1(a)
above, the holder of the Series A Preferred Stock to be converted shall deliver
an irrevocable written notice of such exercise to the Company, at its principal
office. The holder of any shares of Series A Preferred Stock shall, upon any
conversion of such Series A Preferred Stock in accordance with this Section 4,
surrender certificates representing the Series A Preferred Stock to the Company,
at its principal office, and specify the name or names in which such holder
wishes the certificate or certificates for shares of Common Stock to be issued.
In case such holder shall specify a name or names other than that of such
holder, such notice shall be accompanied by payment of all transfer taxes (if
transfer is to a person or entity other than the holder thereof) payable upon
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the issuance of shares of Common Stock in such name or names. As promptly as
practicable, and, if applicable, after payment of all transfer taxes (if
transfer is to a person or entity other than the holder thereof), the Company
shall deliver or cause to be delivered certificates representing the number of
validly issued, fully paid and nonassessable shares of Common Stock to which the
holder of the Series A Preferred Stock so converted shall be entitled. Such
conversion, to the extent permitted by law, shall be deemed to have been
effected as of the date of receipt by the Company of any notice of conversion
pursuant to Section 4.1(a) above, or, in the case of an automatic conversion
pursuant to Section 4.1(b) above, upon the occurrence of any event specified
therein. Upon conversion of any shares of Series A Preferred Stock, such shares
shall cease to constitute shares of Series A Preferred Stock and shall represent
only a right to receive shares of Common Stock into which they have been
converted.
(b) In connection with the conversion of any shares of Series A Preferred
Stock, no fractions of shares of Common Stock shall be issued, but the Company
shall pay cash in lieu of such fractional interest in an amount equal to the
product of the Conversion Price and such fractional interest, or shall round-up
to the next higher share amount of common stock.
(c) As of the date hereof, the Company has no unissued shares of Common
Stock. The Company shall take steps to increase the number of authorized shares
of Common Stock so that at all times it shall reserve and keep available out of
its authorized Common Stock the full number of shares of Common Stock of the
Company issuable upon the conversion of all outstanding shares of Series A
Preferred Stock. In the event that the Company does not have a sufficient number
of shares of authorized but unissued Common Stock necessary to satisfy the full
conversion of the shares of Series A Preferred Stock, then the Company shall
call and hold a meeting of the shareholders within forty-five (45) days of such
occurrence for the sole purpose of increasing the number of authorized shares of
Common Stock. The Company's Board of Directors shall recommend to shareholders a
vote in favor of such proposal and shall vote all shares held by them, in proxy
or otherwise, in favor of such proposal. This remedy is not intended to limit
the remedies available to the holders of the Series A Preferred Stock, but is
intended to be in addition to any other remedies, whether in contract, at law or
in equity.
4.4. Notices of Record Date. In the event that the Company shall propose
at any time: (i) to declare any dividend or distribution upon any class or
series of capital stock, whether in cash, property, stock or other securities;
(ii) to effect any reclassification or recapitalization of its Common Stock
outstanding involving a change in the Common Stock; or (iii) to merge or
consolidate with or into any other corporation, or to sell, lease or convey all
or substantially all of its property or business, or to liquidate, dissolve or
wind up; then, in connection with each such event, the Company shall mail to
each holder of Series A Preferred Stock:
(a) at least twenty (20) days' prior written notice of the date on which a
record shall be taken for such dividend or distribution (and specifying the date
on which the holders of the affected class or series of capital stock shall be
entitled thereto) or for determining the rights to vote, if any, in respect of
the matters referred to in clauses (ii) and (iii) in Section 4.4 above; and
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(b) in the case of the matters referred to in Section 4.4 (ii) and (iii)
above, written notice of such impending transaction not later than twenty (20)
days prior to the shareholders' meeting called to approve such transaction, or
twenty (20) days prior to the closing of such transaction, whichever is earlier,
and shall also notify such holder in writing of the final approval of such
transaction. The first of such notices shall describe the material terms and
conditions of the impending transaction (and specify the date on which the
holders of shares of Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon the occurrence of such
event) and the Company shall thereafter give such holders prompt notice of any
material changes. The transaction shall in no event take place sooner than
twenty (20) days after the Company has given the first notice provided for
herein or sooner than ten (10) days after the Company has given notice of any
material changes provided for herein.
SECTION 5
VOTING RIGHTS
5.1. General. Except as otherwise provided herein or required by law, the
holders of Series A Preferred Stock and the holders of Common Stock shall vote
together and not as separate classes, and the Preferred Stock shall be counted
on "as converted" basis.
SECTION 6
MISCELLANEOUS
6.1. Headings of Subdivisions. The headings of the various Sections hereof
are for convenience of reference only and shall not affect the interpretation of
any of the provisions hereof.
6.2. Severability of Provisions. If any right, preference or limitation of
the Series A Preferred Stock set forth herein (as this resolution may be amended
from time to time) is invalid, unlawful or incapable of being enforced by reason
of any rule of law or public policy, all other rights, preferences and
limitations set forth in this resolution (as so amended) which can be given
effect without the invalid, unlawful or unenforceable right, preference or
limitation shall, nevertheless, remain in full force and effect, and no right,
preference or limitation herein set forth shall be deemed dependent upon any
other such right, preference or limitation unless so expressed herein.
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IN WITNESS WHEREOF, the Company has caused this Certificate of Designation
to be signed, under penalties of perjury, by Douglas Baker, its President.
Dated: June 17, 2005 HEALTH EXPRESS USA, INC.
By: /s/ Douglas Baker
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Name: Douglas Baker
Title: Chief Executive Officer
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