General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 17 77K
2: EX-1 Agreement Re. Filing of Joint Schedule 13D 2± 11K
3: EX-2 Amend. No. 1 to the Limited Partnership Agree. 5 19K
4: EX-3 Preferred Stock Purchase Agree. Dated 12-17-97 45 175K
5: EX-4 Loan Agreement Dated 12-17-97 71 227K
6: EX-5 Certificate of Designation as of 12-17-97 11 39K
7: EX-6 Certificate of Designation of Series C as of 12-17 5 18K
8: EX-7 Registration Rights Agreement Dated 12-17-97 11 46K
9: EX-8 $2,740,982.14 Term Note Dated 12-17-97 7 31K
10: EX-9 $151,875.00 Term Note Dated 12-17-97 7 30K
11: EX-10 Warrant Agreement Dated 12-17-97 11 43K
12: EX-11 Co-Sale Agreement Dated 12-17-97 6 22K
EX-6 — Certificate of Designation of Series C as of 12-17
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EXHIBIT 6
CERTIFICATE OF THE DESIGNATION, PREFERENCES,
RIGHTS AND LIMITATIONS OF
SERIES C PREFERRED STOCK
OF
ENVIRONMENTAL SAFEGUARDS, INC.
Environmental Safeguards, Inc. (hereinafter referred to as the
"Corporation" or "Company"), a corporation organized and existing under the laws
of the State of Nevada,
DOES HEREBY CERTIFY:
That, the Articles of Incorporation of the Corporation authorizes the
issuance of 10,000,000 shares of Preferred Stock, $.001 par value per share, and
expressly vests in the Board of Directors of the Corporation the authority to
issue any or all of said shares in one or more series and by resolution or
resolutions to establish the designation, number, full or limited voting powers,
or the denial of voting powers, preferences and relative, participating,
optional, and other special rights and the qualifications, limitations,
restrictions and other distinguishing characteristics of each series to be
issued:
RESOLVED, that pursuant to the authority conferred upon the Board of
Directors by the Articles of Incorporation, the Series C Preferred Stock, par
value $.001("Series C Preferred Stock"), is hereby authorized and created, said
series to consist of up to 400,000 shares, with a stated value of $10.00 per
share. The voting powers, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations or restrictions
thereof shall be as follows:
1. DIVIDENDS ON SERIES C PREFERRED STOCK
-------------------------------------
(a) The holders of Series C Preferred Stock shall be entitled to
receive out of funds legally available therefor, dividends in an annual
amount equal to the prime rate plus one and one-half percent (1 1/2%) as
reported by NationsBank of Maryland, N.A. on the outstanding stated value
of the Series C Preferred Stock (which initially is $4,000,000.00). The
dividends shall be calculated as of the last day of each quarter, and shall
be payable quarterly in arrears (the "Dividend Payment") with the first
quarterly payment due for the quarter ending March 31, 1998. The Dividend
Payment is due five (5) days after the close of each quarter. The initial
dividend shall accrue from the date of issuance of the Series C Preferred
Stock and shall be payable with the quarterly payment for the quarter
ending March 31, 1998.
2. NO CONVERSION OF SERIES C PREFERRED STOCK INTO COMMON STOCK
-----------------------------------------------------------
The Series C Preferred Stock is not convertible into the Corporation's
Common Stock.
3. NO VOTING OF SERIES C PREFERRED STOCK
-------------------------------------
Except as required by law, each holder of Series C Preferred Stock
shall not be entitled to vote on any matters.
4. LIQUIDATION RIGHTS
------------------
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of
Series C Preferred Stock then outstanding shall be entitled to receive out
of assets of the Corporation available for distribution to stockholders,
before any distribution of assets is made to holders of any other class of
capital stock of the Corporation, except Series B Convertible Preferred
Stock, an amount equal to $10.00 per share, plus accumulated and unpaid
dividends thereon to the date fixed for distribution ("Liquidation
Amount").
(b) A consolidation or merger of the Corporation (in the event that
the Corporation is not the surviving entity) or sale of all or
substantially all of the corporation's assets shall be regarded as a
liquidation, dissolution or winding up of the affairs of the Corporation
within the meaning of this Section 4. In the event of such a liquidation as
contemplated by this Section 4(b), the holders of Series C Preferred Stock
shall be entitled to receive an amount equal to the Liquidation Amount
(c) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation which involves the
distribution of assets other than cash, the Corporation shall promptly
engage competent independent appraisers to determine the value of the
assets to be distributed to the holders of shares of this Series C
Preferred Stock other preferred stock, and the holders of shares of Common
Stock. The Corporation shall, upon receipt of such appraiser's valuation,
give prompt written notice to each holder of shares of Series C Preferred
Stock of the appraiser's valuation.
5. REDEMPTION AT THE DISCRETION OF THE CORPORATION
-----------------------------------------------
(a) The Corporation, at its sole discretion, may redeem any and/or all
of the shares of Series C Preferred Stock as may be outstanding from time
to time (the "Redemption Date"), upon thirty days written notice to holders
(the "Redemption Notice").
(b) The Redemption Price (the "Redemption Price") for each share of
Series C Preferred Stock shall be $10.00, plus accumulated and unpaid
dividends thereon to the date fixed for redemption.
(c) The notice required by clause 5(a) above shall be delivered by the
2
Corporation to each holder of record of Series C Preferred Stock, at
such holder's address as shown on the records of the Corporation;
provided, however, that the Corporation's failure to give such
Redemption Notice shall in no way affect the Corporation's right to
redeem the Series C Preferred Stock.
(d) The Redemption Notice shall contain the following information:
(i) the Redemption Date and the Redemption Price; and
(ii) the number of shares of Series C Preferred Stock being
redeemed.
(e) Surrender of Certificates. Each holder of shares of Series C
-------------------------
Preferred Stock to be redeemed shall surrender the certificate(s)
representing such shares to the Corporation at the place designated in
the Redemption Notice, and thereupon the Redemption Price for such
shares as set forth in this Section 5 shall be paid to the order of
the person whose name appears in such certificate(s) and each
surrendered certificate shall be canceled and retired. In the event
some but not all of the shares of Series C Preferred Stock represented
by a certificate(s) surrendered by a holder are being redeemed, the
Corporation shall execute and deliver to or on the order of the
holder, at the expense of the Corporation, a new certificate
representing the number of shares of Series C Preferred Stock which
were not redeemed.
(f) All shares of Series C Preferred Stock so redeemed shall have the
status of authorized but unissued Series C Preferred Stock, but such
shares so redeemed shall not be reissued as shares of the series of
Series C Preferred Stock created hereby.
3
IN WITNESS WHEREOF, ENVIRONMENTAL SAFEGUARDS, INC. has caused its corporate
seal to be hereunto affixed and this certificate to be signed by JAMES S.
PERCELL, its president, and RONALD BIANCO, its assistant secretary, this 17th
day of December, 1997.
ENVIRONMENTAL SAFEGUARDS, INC.
By /s/ James S. Percell
----------------------------------------
JAMES S. PERCELL, President
By /s/ Ronald Bianco
----------------------------------------
RONALD BIANCO, Assistant Secretary
THE STATE OF TEXAS (S)
(S)
COUNTY OF HARRIS (S)
BEFORE ME, the undersigned authority, on this day personally appeared James
S. Percell, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL of office this 17th day of December, 1997.
/s/ Vivian A. Tipps
-----------------------------------------
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
THE STATE OF TEXAS (S)
(S)
COUNTY OF HARRIS (S)
BEFORE ME, the undersigned authority, on this day personally appeared
Ronald Bianco, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
4
GIVEN UNDER MY HAND AND SEAL of office this 17th day of December, 1997.
/s/ Vivian A. Tipps
------------------------------------------
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
5
Dates Referenced Herein and Documents Incorporated by Reference
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