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-3.07 — 2nd Amended Certificate of Designation (Series C)
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EXHIBIT 3.07
SECOND
AMENDED CERTIFICATE OF DESIGNATION, PREFERENCES, RIGHTS AND
LIMITATIONS OF
SERIES C 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
March 14, 1995, adopted a Resolution providing for the creation and issuance of
a series of its authorized preferred stock, designated Series C Convertible
Preferred Stock, no par value, 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 C
Convertible Preferred Stock" (hereinafter referred to as the Series C Preferred
Stock), which series consists of 500,000 authorized shares. The issued and
outstanding shares of the Series C Preferred Stock, as they may exist from time
to time, are sometimes referred to below as the "Shares". The preferences and
relative, participating, optional or other special rights of, and the
qualifications, limitations and restrictions imposed upon the Series C
Preferred Stock shall be as follows:
1. No Dividends.
This Series C Preferred Stock shall not bear dividends.
2. Redemption Rights.
(a) Voluntary. Shares of the Series C Preferred Stock shall be
redeemable, in whole or in part, at the option of the Corporation, by
resolution of its Board of Directors adopted, at any time on or after
April 15, 1996, at a price equal to the sum of $10.00 per Share. In the
event that less than all of the outstanding Shares of Series C Preferred
Stock are redeemed at any one time, the Shares to be redeemed shall be
selected in a non-discriminatory manner to be determined by the Board of
Directors of the Corporation. Not less than 30 nor more than 60 days
prior to the date fixed for redemption of any Shares of Series C
Preferred Stock, a notice specifying the time and place of such
redemption shall be given to all holders of record of Shares of Series C
Preferred Stock, at their respective addresses as the same shall appear on
the stock books of the Corporation, but no failure on the part of the
shareholder to receive such notice and no defect in the wording of the
notice shall affect the validity of the proceedings adopted with respect to
the redemption of any such Shares. After the
Corporation has furnished its notice of redemption, each holder of Shares
of Series C Preferred Stock called for redemption may, on or before the
close of the last business day preceding the designated redemption date,
convert such Shares into shares of common stock of the Corporation in
accordance with the conversion privileges set forth in Section 5 hereof.
(b) Effect of Redemption. On the redemption date determined under
subsection (a), each shareholder, some or all of whose Shares of Series C
Preferred Stock are being redeemed, shall tender such Shares for
cancellation by the Corporation and against payment of the redemption
price. Upon the consummation of any such redemption, each holder of
Shares of Series C Preferred Stock whose Shares have been redeemed shall
cease to be a shareholder with respect to such Shares, shall have no
interest in or claim against the Corporation by virtue thereof and shall
have no voting or other rights with respect to such Shares as are
redeemed. Any Shares of Series C Preferred Stock received by the
Corporation upon redemption shall resume the status of authorized but
unissued Shares of preferred stock.
3. No Voting Rights. Except as required by Florida Business
Corporation Act, the holders of the Shares shall have no voting rights.
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 C Preferred Stock shall be entitled to
receive, out of the net assets of the Corporation, the sum of $10.00 in cash
for each Share of Series C Preferred Stock so held subject to the first
priority of all holders of the Corporation's Series A 10% Preferred Shares and
Series B 8% Preferred Shares to receive $1.00 per share in cash plus all
accrued but unpaid dividends. After payment shall have been made in full to
the holder of Series C 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 C 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 C Preferred Stock shall have the
right, at his option, at any time on or prior to April 15, 1997, to convert
each Share then held by him into fully paid and nonassessable shares of the
Corporation's authorized common capital stock, no par value (the "Common
Stock") at a conversion price equal to 50% of the Common Stock's market
value ("Conversion Price"). In order to determine the actual number of
shares of Common Stock, the holder shall be entitled to receive upon
conversion of the Shares into Common Stock the actual number of Shares
being offered for
conversion shall be divided by the Conversion Price with the resulting
number then being multipled by 10. For purposes of this Agreement, the
market value of the Company's Common Stock shall be determined as follows:
(a) if at the time of valuation the Company's Common Stock is listed on any
national securities exchange, the average closing price on such exchange
for the ten day period prior to conversion, or, if listed on more than one
exchange, on the exchange on which the Company's Common Stock shall have
had the largest total trading volume; (b) if at the time of valuation the
Company's Common Stock is publicly traded but not listed on any national
securities exchange, the average of the average closing bid and asked
prices appearing on the National Association of Securities Dealers, Inc.
Automated Quotation System (NASDAQ) for the ten day period preceding the
conversion date or, if not listed on NASDAQ, the average of the average
closing bid-and-asked prices as reported by the National Quotation Bureau,
Inc. or a comparable general quotation service; or (c) if at the time of
valuation the Company's Common Stock is not publicly traded, the net book
value per share as reflected on the Corporation's audited consolidated
balance sheet for its latest fiscal year ending prior to the valuation
date. In case any Shares of the Series C Preferred Stock shall have been
called for redemption, such right of conversion in respect of the Shares so
called shall cease and terminate at the close of the last business day
immediately preceding the date fixed for the redemption of such Shares,
unless thereafter default shall occur in the payment of the redemption
price.
(b) Procedure. Any holder of Shares of Series C 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 C Preferred Stock
shall be subject to the following additional terms and provisions:
(1) Replacement Certificates. As promptly as practicable after
the surrender for conversion of any Series C 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 C 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
C Preferred Stock shall be deemed to have been converted as of
the close of business on the date of the surrender of the
Series C Preferred Stock for conversion, as provided above, and
the rights of the holders of such Series C 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
C Preferred Stock shall be proportionately increased in the case
of a subdivision or decreased 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 C 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.
(5) No Fractional Shares. The Corporation shall not be
required to issue any fractions of shares of Common Stock upon
conversions of Series C Preferred Stock. If any interest in a
fractional share of Common Stock would otherwise be deliverable
upon the conversion of any Series C 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 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 C
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 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 C 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 at all times reserve and keep
available solely for the purpose of issuance upon conversion of
Series C Preferred Stock, as herein provided, such number of shares
of Common Stock as shall be issuable upon the conversion of all
outstanding Series C Preferred Stock.
(8) All shares of Common Stock which may be issued upon
conversion of the shares of Series C 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 C 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 C 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 C 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 C 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 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 C
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 C 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 C Preferred Stock in any
material respect prejudicial to the holders thereof, or increase the a
authorized number of Shares of such Series, but nothing herein contained shall
require such
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 C Preferred Stock.
Further, no such vote or written consent of the holders of the Series C
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 C 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 C
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.
IN WITNESS WHEREOF, EVRO Corporation has caused its corporate seal to be
hereunto affixed and this Amended Certificate to be executed by its President
and Secretary as of June 2, 1995.
/s/ Daniel M. Boyar
--------------------------------
Daniel M. Boyar, President
/s/ Stephen H. Cohen
--------------------------------
Stephen H. Cohen, Secretary
STATE OF FLORIDA )
) SS.
COUNTY OF ORANGE )
This instrument was acknowledged before me on July 27, 1995 on behalf of
EVRO Corporation by Daniel M. Boyar, its President.
[NOTARY SEAL] /s/ Steven Dragona
--------------------------------
Notary Public
My Commission Expires: 10/2/98
STATE OF NEW YORK )
) SS.
COUNTY OF ONONDAGA )
This instrument was acknowledged before me on June 2, 1995 on behalf of
EVRO Corporation by Stephen H. Cohen, its Secretary.
[NOTARY SEAL] /s/ Ann T. Ealy
--------------------------------
Notary Public
My Commission Expires: 2/12/96
Dates Referenced Herein and Documents Incorporated by Reference
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