Attached files
EXHIBIT
3.1.4
CERTIFICATE
OF AMENDMENT TO
CERTIFICATE
OF INCORPORATION
REGARDING
PREFERRED SHARES OF REGISTRANT
[To
be inserted.]
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DELAWARE
PAGE
1
THE FIRST
STATE
I,
JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF “PHYHEALTH CORPORATION”, FILED IN THIS OFFICE ON THE SECOND DAY OF NOVEMBER,
A.D. 2009, AT 1:37 O’CLOCK P.M.
A FILED
COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF
DEEDS.
| SECRETARY OF STATE’S SEAL | ||
| 4491856 8100 | /s/ Jeffrey W. Bullock | |
| 090986409 | Jeffrey W. Bullock, Secretary of State | |
| You may verify this certificate online | AUTHENTICATION: 7619541 | |
| at corp.delaware.gov/authver.shtml | DATE: 11-03-09 | |
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State of
Delaware
Secretary
of State
Division
of Corporation
Delivered
01:37 PM 11/02/2009
FILED
01:37 PM 11/02/2009
SRV
090986409 – 4491856 FILE
CERTIFICATE
OF DESIGNATION
OF
THE RIGHTS, PREFERENCES, PRIVELEGES
AND
RESTRICTIONS, WHICH HAVE NOT BEEN SET
FORTH
IN THE CERTIFICATE OF INCORPORATION
OR
IN ANY AMENDMENT THERETO, OF THE
COMMON
STOCK AND THE SERIES A AND SERIES B
PREFERRED
STOCK OF
PHYHEALTH
CORPORATION
(Pursuant
to Section 151 of the General Corporation Law of Delaware)
The
undersigned, being all of the directors of Phyhealth Corporation, a Delaware
corporation (the “Company”), hereby certify that it took the following corporate
actions and adopted the following resolutions, which corporate actions and
resolutions shall have the same force and effect as a unanimous vote of the
directors of the Company at a formal special meeting of the directors of said
Company:
WHEREAS,
the directors believe that it is in the best interests of the corporation to
designate and issue two series of Preferred Stock, Series A Preferred
Stock and Series B Preferred Stock, establish the respective terms,
designations, relative rights, preferences and limitations of the Preferred
Stock; and
WHEREAS,
the directors believe that it is in the best interests of the corporation to set
forth the terms, designations, relative rights, preferences and limitations of
the Series A Preferred Stock and Series B Preferred Stock in a Certificate of
Designation and to file that Certificate of Designation with the State of
Delaware.
NOW,
THEREFORE, BE IT:
RESOLVED, that pursuant to the
authority vested in the Board of Directors of the Corporation by the Delaware
Revised Statutes and in accordance with the provisions of its Articles of
Incorporation, in addition to common stock, a class of preferred stock of the
Corporation to be known as its Series A Preferred Stock and Series B Convertible
Preferred Stock are hereby created and provided for and the Board of Directors
hereby fixes, states and expresses the terms, designations, relative rights,
preferences and limitations of each such class in addition to those set forth in
said Articles of Incorporation, as amended, to be in their entirety as
follows:
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1. Designation of Series A and B Preferred
Stock. Series A Preferred Stock and Series B
Preferred
Stock are hereby created, Of the 50,000,000 shares of the Corporation’s
authorized Stock, with a par value of $0.0001, 40,000,000 shall hereby be
designated and hereafter known as the Common Stock (the “Common Stock”),
5,000,000 shall hereby be designated and hereafter known as “Series A Preferred
Stock” (the “Series A Preferred Stock”); 5,000,000 shares shall hereby be
designated and hereafter known as “Series B Preferred Stock” (the “Series B
Preferred Stock”).
2. Issuance; Rank; Unsecured. The issuance price of the Series A Preferred Stock and Series B Preferred Stock shall be $0.01 and $0.40 per share, respectively (the “Original Purchase Price”). The Preferred Stock shall rank senior to the Common Stock and any other capital stock of the Corporation ranking junior to the Preferred Stock as to dividends and upon liquidation, dissolution or winding up. The Series B Preferred Stock shall rank senior to the Series A Preferred Stock of the Corporation as to dividends and upon liquidation, dissolution or winding up. The date on which a share of Preferred Stock was issued shall hereinafter be referred to as the “Original Issue Date” for such share. The Preferred Stock is unsecured by assets of the Corporation.
3.
Dividends.
3.1 No dividends shall
be declared or paid upon the Common Stock or other securities ranking junior to
the Preferred Stock unless equivalent dividends, on an as converted basis, are
declared and paid concurrently on the Preferred Stock. No dividends shall be
declared or paid upon the Series A Preferred Stock or other securities ranking
junior to the Series B Preferred Stock unless equivalent dividends, on an as
converted basis, are declared and paid concurrently on the Series B Preferred
Stock.
4.
Liquidation, Dissolution or Winding Up.
4.1 In the event
of any liquidation, dissolution or winding up of the Corporation (a “Liquidation
Event”), the assets of the Corporation available for distribution to its
stockholders, whether from capital, surplus or earnings (the “Corporate
Assets”) shall
be distributed as follows:
4.1.1 First, before any
distribution of assets shall be made to the holders of, Common Stock or other
Preferred Stock, the holder of each share of Series B Preferred Stock then
outstanding shall be entitled to be paid out of the Corporate Assets an amount
per share equal to the Original Purchase Price (subject to an Adjustment) plus
all dividends, accrued but unpaid, on such share up to the date of distribution
of the assets of the Corporation (the “Liquidation Preference”). If
upon the occurrence of a Liquidation Event, the Corporate Assets shall be
insufficient to pay the holders of shares of Series B Preferred Stock the
Liquidation Preference, the holders of shares of Series B Preferred Stock and
any class or series of stock, ranking on liquidation on a parity with the shares
of Series B Preferred Stock, if any, shall share ratably in the distribution of
the entire remaining Corporate Assets in proportion to the respective amounts
which would otherwise be payable in respect of the shares held by them upon
such distribution
if all amounts payable on or with respect to such shares were paid in
full.
4.1.2 Second,
before any distribution of assets shall be made to the holders of, Common Stock,
the holder of each share of non-Series B Preferred Stock then outstanding shall
be entitled to be paid out of the Corporate Assets an amount per share equal to
the Original Purchase Price (subject to an Adjustment) plus all dividends,
accrued but unpaid, on such share up to the date of distribution of the assets
of the Corporation (the “non-Series B Liquidation Preference”). If
upon the occurrence of a Liquidation Event, the Corporate Assets shall be
insufficient to pay the holders
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of shares
of non-Series B Preferred Stock the Liquidation Preference, the holders of
shares of non-Series B Preferred Stock and any class or series of stock, ranking
on liquidation on a parity with the shares of non-Series B Preferred Stock, if
any, shall share ratably in the distribution of the entire remaining Corporate
Assets in proportion to the respective amounts which would otherwise be payable
in respect of the shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in
full.
4.1.3 Third, after
distribution of the Liquidation Preference and the non-Series B Liquidation
Preference, the remaining Corporate Assets shall be distributed among the
holders of Common Stock on a pro rata basis.
4.2 For purposes of this
Section 4, the term Liquidation Event shall be deemed to include (i) a statutory
merger or consolidation of the Corporation into or with any other corporation,
or a statutory merger or consolidation of any other corporation into or with the
Corporation; (ii) a sale, transfer, exchange or lease of all or any part of the
assets of the Corporation; and (iii) a purchase or redemption of all or a
substantial part of the outstanding shares of any class or classes of capital
stock of the Corporation.
4.3 Written notice
of such Liquidation Event, stating a payment date, the liquidation amount and
the place where said liquidation amount shall be payable, shall be delivered in
person, mailed by certified or registered mail, return receipt requested, or
sent by fax or telex, not less than twenty (20) days prior to the payment date
stated therein, to
the holders of record of the Series B Preferred Stock, such notice to be
addressed to each such holder at its address as shown by the records of the
Corporation.
5. Voting. Each holder
of outstanding shares of Series A Preferred Stock shall be entitled to the
number of votes equal to the number of shares of Preferred Stock held. The
holders of shares of Series B Preferred Stock shall not be entitled to
vote.
6. Optional
Conversion. The holders of shares of Preferred Stock shall
have conversion rights as follows (the “Conversion Rights”):
6.1 Right to Convert. Subject to
Section 6.4, each share of Series A Preferred Stock shall be convertible, at the
option of the holder thereof, at any time and from time to time, into one share
of fully paid and non-assessable Common Stock. Subject to Section
6.4, each share of Series B Preferred Stock shall be convertible, at the option
of the holder thereof, at any time and from time to time, into forty (40) shares
of fully paid and non-assessable Common Stock. The conversion price
at which shares of Common Stock shall be deliverable upon conversion of the
Preferred Stock without payment of additional consideration by the holder
thereof (the “Conversion Price”). Upon a Liquidation Event of the
Corporation, the Conversion Rights shall terminate at the close of business on
the first full day preceding the date fixed for the payment of any amounts
distributable on liquidation to the holders of shares of Preferred
Stock.
6.2 Mechanics
of Conversion.
6.2.1 In order for a
holder to convert shares of Preferred Stock into shares of Common Stock, such
holder shall surrender the certificate or certificates for such shares of
Preferred Stock at the office of the transfer agent for such shares (or at the
principal office of the Corporation if the Corporation serves as its own
transfer agent), together with written notice that such holder elects to convert
all or any number of the shares of the Preferred Stock represented by such
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certificate
or certificates. Such notice shall state such holder's name or the
names of the nominees in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. If required by
the Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or his
or her or its attorney-in-fact duly authorized in writing. The date
of receipt of such certificates and notice by the transfer agent (or by the
Corporation if the Corporation serves as its own transfer agent) shall be the
conversion date (the “Conversion Date”). The Corporation shall, as
soon as practicable after the Conversion Date, issue and deliver at such office
to such holder of shares of Series B Preferred Stock, or to his or her or its
nominees, a certificate or certificates for the number of shares of Common Stock
to which such holder shall be entitled. Such conversion shall be
deemed to have been made immediately prior to the close of business on the date
of such surrender of the shares of Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date. If the
conversion is in connection with an underwritten offer of securities registered
pursuant to the Securities Act of 1933, as amended (the “Securities Act”), the
conversion may, at the option of any holder tendering shares of Preferred Stock
for conversion, be conditioned upon the closing of the sale of securities
pursuant to such offering in which event
the person entitled to receive the Common Stock issuable upon such conversion of the shares
of Preferred Stock shall not be deemed to have converted such shares of
Preferred Stock until immediately prior to the closing of such sale of
securities.
6.2.3 All
shares of Preferred Stock that shall have been surrendered for conversion as
herein provided shall no longer be deemed to be outstanding and all rights with
respect to such shares, including the rights, if any, to receive notices and
dividends or to vote, shall immediately cease and terminate on the Conversion
Date, except only the right of the holders thereof to receive shares of Common
Stock in exchange therefor. Any shares of Preferred Stock so
converted shall be retired and canceled and shall not be reissued, and the
Corporation may from time to time take such appropriate action as may be
necessary to eliminate the authorized Preferred Stock or reduce the authorized
number thereof as may be appropriate accordingly.
6.3 No Impairment. The
Corporation will not, by amendment of its Articles of Incorporation or through
any reorganization, 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 6 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 shares of Preferred Stock against
impairment.
6.4 Maximum
Conversion. The shareholder shall not be entitled to make a
conversion if such conversion would result in beneficial ownership by such
shareholder and its affiliates of more than 4.99% of the outstanding shares of
common stock of the Company on such exercise or conversion date, including the
number of shares of common stock beneficially owned by such holder and its
affiliates. For the purposes of this provision as set forth in the immediately
preceding sentence, beneficial ownership shall be determined in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation
13d-3 thereunder. Upon sale or transfer of control of the company,
the shareholder may opt to void the exercise limitation described in this
Section within 30 days notice of such change in control of the
Company.
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FURTHER
RESOLVED, that a Certificate of Designation shall be filed with the State of
Delaware setting forth these terms, designations, relative rights, preferences
and limitations.
FURTHER
RESOLVED, that each Officer of the Company is hereby authorized, empowered and
directed on behalf of the Company to execute and deliver, on behalf of the
Company, any and all documents necessary to file the Certificate of Designation
and to otherwise enable the Company to issue the Preferred Shares.
| /s/ Robert Trinka | |
| Robert Trinka, Director | |
| /s/ Fidel Rodriquez | |
| Fidel Rodriguez, Director | |
| /s/ Richard Goulding | |
| Richard Goulding, Director |
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Designation of
Series A Convertible Preferred Stock and Series B Convertible Preferred Stock to
be duly executed by its President and attested to by its Secretary.
| /s/ Robert Trinka | |
| Robert Trinka, President | |
| /s/ Richard Goulding | |
| Richard Goulding, Secretary |
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