Annual Report — Small Business — Form 10-KSB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10KSB Evro Corporation Form 10KSB 97 415K
2: EX-2.11 Fourth Amended Agr. to Stock Purchase Agreement 3 15K
3: EX-2.12 Fifth Amended Agr. to Stock Purchase Agreement 2 15K
4: EX-2.13 Sixth Amended Agr. to Stock Purchase Agreement 3 16K
5: EX-3.05 2nd Amended Certificate of Designation (Series A) 4 23K
6: EX-3.06 Articles of Amendment to the Cert. of Designation 2 12K
7: EX-3.07 2nd Amended Certificate of Designation (Series C) 8 34K
8: EX-3.10 Certificate of Designation (Series F) 6 29K
9: EX-3.11 Second Amended Cert. of Designation (Series H) 8 34K
10: EX-3.12 Second Amended Cert. of Designation (Series I) 7 31K
11: EX-3.13 3rd Amended Cert. of Designation (Series J) 8 30K
12: EX-3.14 Certificate of Designation (Series K) 9 32K
13: EX-3.15 Certificate of Designation (Series L) 8 30K
14: EX-3.16 Cerficate of Designation (Series M) 8 30K
15: EX-10.01 1995 Employee Stock Compensation Plan 6 28K
16: EX-10.04 Stock Purchase Agreement 14 35K
17: EX-10.05 Consulting Agreement 15 39K
18: EX-10.06 First Amendment to Consulting Agreement 5 18K
19: EX-10.07 Joint Venture Agreement 10 25K
20: EX-10.08 Professional Services Agreement 6 29K
21: EX-22.01 Subsidiaries of the Registrant 1 10K
22: EX-27 Finacial Data Schedule (For SEC Use Only) 1 9K
EX-3.16 — Cerficate of Designation (Series M)
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EXHIBIT 3.16
CERTIFICATE OF DESIGNATION, PREFERENCES, RIGHTS AND
LIMITATIONS OF
SERIES M CONVERTIBLE PREFERRED STOCK
NO PAR VALUE
OF EVRO CORPORATION
===============================================================================
EVRO Corporation (the "Corporation"), organized and existing under Florida
law, hereby certifies that, pursuant to authority conferred upon the Board of
Directors by the Articles of Incorporation of the Corporation and Section
607,0602 of the Florida Business Corporation Act, the Board of Directors on
November 8, 1995, adopted a Resolution providing for the creation and issuance
of the Corporation's Certificate of Designation, Preferences, Rights and
Limitations for its Series M Convertible Preferred Stock, which Resolution is
hereafter set forth in its entirety.
RESOLVED, that pursuant to the authority expressly granted and vested in
the Board of Directors of this Corporation in accordance with the provisions of
its Articles of Incorporation, a series of the Corporation's authorized class
of preferred stock, no par value, is hereby established as "Series M
Convertible Preferred Stock" (hereinafter referred to as the Series M Preferred
Stock), which series consists of 40,000 authorized shares. The issued and
outstanding shares of the Series M Preferred Stock, as they may exist from time
to time, are sometimes referred to below as the "Shares". The preferences, any
relative, participating, optional or other special rights of, and the
qualifications, limitations and restrictions imposed upon the Series M
Preferred Stock shall be as follows:
1. No Dividends. The Series M Preferred Stock shall not bear dividends.
2. Redemption Rights. The Corporation shall have no right to redeem the
Series M Preferred Stock.
3. Voting Rights. Each issued and outstanding share of Series M Preferred
Stock shall entitle the registered holder thereof to ten votes on each matter
with respect to which a vote is required of the holders of the Corporation's
common stock.
4. Priority in the Event of Liquidation or Dissolution. In the event of
any liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or otherwise, after payment or provision for payment of the
debts and other liabilities of the Corporation and before any distribution
shall be made to the holder of any class of the common stock of the
Corporation, each holder of Series M Preferred Stock shall be entitled to
receive,
out of the assets of the Corporation, the sum of $10.00 in cash for each Share
of Series M Preferred Stock so held subject to the first priority of all holders
of the Corporation's Series A 10% Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series I Preferred Stock, Series H Preferred Stock, Series J Preferred Stock,
Series K Preferred Stock, and Series L Preferred Stock, as set forth in the
respective certificates of designation, preferences, rights and limitations of
such series of preferred stock of the Corporation. After payment shall have
been made in full to the holders of the Series M Preferred Stock, or funds
necessary for such payment shall have been set aside in trust for the exclusive
benefit of such holders, the holders of the Series M Preferred Stock shall be
entitled to no further participation in any distribution of the assets of the
Corporation.
5. Conversion of Preferred Stock into Common Stock.
(a) In General. Subject to the provisions of this Section 5, each
holder of record of Shares of Series M Preferred Stock shall have the right,
at his option, at any time after the Corporation increases its authorized
common stock from 2,500,000 shares to 35,000,000 shares, but in no event later
than June 30, 1997, to convert each Share then held by him into 10 fully paid
and nonassessable shares of the Corporation's authorized common capital
stock, no par value (the "Common Stock") provided, however, that in the event
that the holder has not converted each Share held by him into shares of the
Corporation's common stock on or before June 30, 1997, such Shares shall
automatically be converted on June 30, 1997.
(b) Procedure. Any holder of Shares of Series M Preferred Stock
desiring to convert any such Share into Common Stock shall surrender each
certificate representing one or more Shares of such Stock to be converted, duly
endorsed to the Corporation or in blank, at the principal business office of
the Corporation (or such other place as may be designated by the Corporation),
and shall give written notice to the Corporation at that office of his election
to convert the same, setting forth therein the name or names (with the address
or addresses) in which the shares of Common Stock are to be issued. If the
last day for any exercise of the conversion right shall be a legal holiday or a
day on which federally chartered banking institutions are authorized by law to
close, then such conversion right may be exercised on the next succeeding day
not a legal holiday or a day on which such banking institutions are authorized
by law to close.
(c) Additional Provisions. Conversion of Series M Preferred Stock
shall be subject to the following additional terms and provisions:
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(1) Replacement Certificates. As promptly as practicable after the
surrender for conversion of any Series M Preferred Stock, the Corporation shall
deliver or cause to be delivered at the principal office of the Corporation (or
such other place as may be designated by the Corporation), to or upon the
written order of the holder of such Series M Preferred Stock, one or more
certificates representing the shares of Common Stock issuable upon such
conversion, issued in such name or names as such holder may reasonably direct.
Shares of the Series M Preferred Stock shall be deemed to have been converted
as of the close of business on the date of the surrender of the Series M
Preferred Stock for conversion, as provided above, and the rights of the
holders of such Series M Preferred Stock shall cease at such time, and each
person in whose name a certificate for such shares is to be issued shall be
treated for all purposes as having become the record holder of such Common
Stock at such time; provided, however, that any such surrender on any date when
the stock transfer books of the Corporation shall be closed shall constitute
the person in whose name each certificate for such shares is to be issued as
the record holder thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open.
(2) Subdivisions or Combinations. In the event that the Corporation
shall at any time prior to a particular conversion subdivide or combine its
outstanding shares of Common Stock into a greater or lesser number of such
shares, the number of shares of Common Stock issuable upon conversion of the
Series M Preferred Stock shall be proportionately increased in the case of a
combination, effective in either case at the close of business on the date
which such subdivision or combination shall become effective.
(3) Recapitalizations. In the event that the Corporation shall be
recapitalized, consolidated with or merged into any other corporation, or shall
sell or convey to any other corporation all or substantially all of its
property as an entity, provision shall be made as part of the terms of such
recapitalization, consolidation, merger, sale or conveyance for each holder of
Series M Preferred Stock to thereafter receive in lieu of the Common Stock
otherwise issuable to him upon conversion of his Preferred Stock, but at the
conversion ratio stated in this Section 5, the same kind and amount of
securities or assets as may be distributable upon such recapitalization,
consolidation, merger, sale or conveyance, with respect to the Common Stock of
the Corporation.
(4) Successive Adjustments. The adjustments hereinabove referenced
shall be made successively if more than one event listed in the above
subdivisions of this subsection (c) of this Section 5 shall occur.
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(5) No Fractional Shares. The Corporation shall not be required to
issue any fractions of shares of Common Stock upon conversions of Series M
Preferred Stock. If any interest in a fractional share of Common Stock would
otherwise be deliverable upon the conversion of any Series M Preferred Stock,
the Corporation shall make adjustment for such fractional share interest by
payment to the converting shareholder of cash in an amount bearing the same
ratio to the fair market value of a whole share of Common Stock of the
Corporation, as determined by the Corporation's Board of Directors, as the
fractional interest to which the shareholder would otherwise be entitled bears
to a whole share of Common Stock.
(6) No Adjustments. No adjustment of the conversion ratio shall be
made by reason of:
(A) The payment of any cash dividend on the Common Stock or any
other class of the capital stock of the Corporation;
(B) the purchase, acquisition, redemption or retirement by the
Corporation of any shares of the Common Stock or of any other class of the
capital stock of the Corporation, except as provided in subdivision (3) of
this subsection (c):
(C) the issuance, other than as provided in the subdivisions of
this subsection (c), of any shares of Common Stock of the Corporation, or of any
securities convertible into shares of Common Stock or other securities of the
Corporation, or of any rights, warrants or options to subscribe for or purchase
shares of the Common Stock or other securities of the Corporation, or of any
other securities of the Corporation, provided that in the event the Corporation
offers any of its securities, or any rights, warrants or options to subscribe
for or purchase any of its securities, to the holders of its Common Stock
pursuant to any preemptive or preferential rights granted to holders of Common
Stock by the Certificate of Incorporation of the Corporation, or pursuant to
any similar rights that may be granted to such holders of Common Stock by the
Board of Directors of the Corporation, the Corporation shall mail written
notice of such offer to the holders of the Series M Preferred Stock then of
record at least 20 days prior to the record date for the determination of
holders of the Common Stock entitled to receive any such offer so as to provide
such holders with a reasonable period of time within which to determine whether
to exercise their rights of conversion;
(D) any offer by the Corporation to redeem or acquire shares of
its Common Stock by paying or exchanging therefor stock of another corporation
or the carrying out by the Corporation of the transactions contemplated by such
offer, provided that
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at least 20 days prior to the expiration of any such offer the
Corporation shall mail written notice of such offer to the holders of the
Series M Preferred Stock then of record; or
(E) the distribution to holders of Common Stock of stock or
other securities of another issuer, if the issuers of such securities shall be
engaged at the time of such distribution in a business (i) which shall have
been previously operated on a divisional or subsidiary basis by an entity
acquired by the Corporation and (ii) which shall be distinct from the principal
business of the entity to be acquired.
(7) The Corporation shall, after it has successfully increased its
authorized common stock from 2,500,000 shares to 35,000,000, at all thereafter
times reserve and keep available solely for the purpose of issuance upon
conversion of Series M Preferred Stock, as herein provided, such number of
shares of Common Stock as shall be issuable upon the conversion of all
outstanding Series M Preferred Stock.
(8) All shares of Common Stock which may be issued upon conversion
of the shares of Series M Preferred 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.
(d) Expenses. The issuance of certificates representing shares of
Common Stock upon conversion of the Series M Preferred Stock shall be made to
each applicable shareholder without charge for any excise tax in respect of
such issuance. However, if any certificate is to be issued in a name other
than that of the holder of record of the Series M Preferred Stock so converted,
the person or persons requesting the issuance thereof shall pay to the
Corporation the amount of any tax which may be payable in respect of any
transfer involved in such issuance, or shall establish to the satisfaction of
the Corporation that such tax has been paid or is not due and payable.
(e) Verification. Upon the occurrence of each adjustment or
readjustment of the conversion ratio pursuant hereto, the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof, cause independent public accountants selected by the
Corporation to verify such computation and prepare and furnish to each holder
of Series M Preferred Stock affected thereby a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of any holder of Series M Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth (a) such
adjustment or readjustment, (b) the conversion ratio at the time
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in effect, and (c) the number of shares of Common Stock and the amount, if any,
of other property which at the time would be received upon the conversion of
his Shares.
(f) Status of Converted Stock. In case any Shares of Series M
Preferred Stock shall be converted, the Shares so converted shall resume the
status of authorized but unissued shares of preferred stock.
6. Limitations on Corporation; Shareholder Consent. So long as any Shares
of Series M Preferred Stock are outstanding, the Corporation shall not, without
the affirmative vote or the written consent as provided by law of 80% of the
holders of the outstanding Shares, voting as a class, change the preferences,
rights or limitations with respect to the Series M Preferred Stock in any
material respect prejudicial to the holders thereof, or increase the authorized
number of Shares of such Series, but nothing herein contained shall require
such a class vote or consent (a) in connection with any increase in the total
number of authorized shares of Common Stock, or (b) in connection with the
authorization, designation, increase or issuance of any series of preferred
stock holding liquidation preference equal to or subordinate to the Series M
Preferred Stock. Further, no such vote or written consent of the holders of the
Series M Preferred Stock shall be required if, at or prior to the time when such
change is to take effect, provision is made for the redemption of all Shares at
the time outstanding; and the provisions of this paragraph 6, shall not in any
way limit the right and power of the Corporation to issue any bonds, notes,
mortgages, debentures and other obligations, and to incur indebtedness to banks
and to other lenders.
7. Stated Capital. Of the consideration received by the Corporation in
exchange for the issuance of each share of the Series M Preferred Stock, $10.00
shall constitute paid in capital.
8. Notices. All notices or other communications required or permitted to
be given pursuant to this resolution shall be in writing and shall be
considered as properly given or made if hand delivered, mailed by certified or
registered mail, return receipt requested, or sent by prepaid telegram, if to
the Corporation at its address indicated in its Annual Report as most recently
filed with the Florida Department of State, and if to a holder of Series M
Preferred Stock at the address set forth in the shareholder records as
maintained by the Corporation, or to such other address as any such shareholder
may have designated by like notice forwarded to the Corporation. All notices,
except notices of change of address, shall be deemed given when mailed or hand
delivered and notices of change of address shall be deemed given when received.
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IN WITNESS WHEREOF, EVRO Corporation has caused its corporate seal to be
hereunto affixed and this Certificate to be executed any Vice President and its
Assistant Secretary as of the ______ day of November, 1995.
/s/ Christopher P. Dona /s/ O. Don Lauher
----------------------- ----------------------
Christopher P. Dona O. Don Lauher
Vice President Assistant Secretary
STATE OF FLORIDA )
) SS.
COUNTY OF ORANGE )
The foregoing instrument was acknowledged before me this _____ day of
November, 1995, by Christopher P. Dona, as Vice President of EVRO Corporation,
a Florida corporation, on behalf of the corporation. He is personally known to
me or has produced DO500-115-51-083-0 as identification.
/s/ Ileana I. Labo
---------------------------
Notary Signature
Ileana I. Labo
[NOTARY SEAL] ---------------------------
Notary Name Printed
NOTARY PUBLIC
Commission No. CC294908
STATE OF FLORIDA ) --------
)SS.
COUNTY OF ORANGE )
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The foregoing instrument was acknowledged before me this ____ day of
November, 1995, by O. Don Lauher, as Assistant Secretary of EVRO Corporation, a
Florida corporation, on behalf of the corporation. He is personally known to
me or has produced L600-644-42-263-0 as identification.
/s/ Ileana I. Labo
---------------------------
Notary Signature
Ileana I. Labo
---------------------------
[NOTARY SEAL] Notary Name Printed
NOTARY PUBLIC
Commission No. CC294908
--------
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Dates Referenced Herein and Documents Incorporated by Reference
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