Attached files
file | filename |
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8-K - MedClean Technologies, Inc. | v168296_8k.htm |
EX-4.1 - MedClean Technologies, Inc. | v168296_ex4-1.htm |
EX-10.1 - MedClean Technologies, Inc. | v168296_ex10-1.htm |
EX-99.1 - MedClean Technologies, Inc. | v168296_ex99-1.htm |
Exhibit
3.1
MEDCLEAN
TECHNOLOGIES, INC.
CERTIFICATE
OF DESIGNATIONS
OF
PREFERENCES, RIGHTS AND LIMITATIONS
OF
SERIES C
PREFERRED STOCK
The
undersigned, David J. Laky and Cheryl K. Sadowski, hereby certify
that:
1. They
are the President and Chief Executive Officer, and Treasurer and Chief Financial
Officer, respectively, of MedClean Technologies, Inc., a Delaware corporation
(the “Corporation”).
2. The
Corporation is authorized to issue 60,000,000 shares of preferred stock, none of
which is issued or outstanding.
3. The
following resolutions were duly adopted by the Board of Directors:
WHEREAS,
the Certificate of Incorporation of the Corporation provides for a class of its
authorized stock known as preferred stock, comprised of 60,000,000 shares,
$0.0001 par value per share (the Preferred Stock”),
issuable from time to time in one or more series;
WHEREAS,
the Board of Directors of the Corporation is authorized to fix the dividend
rights, dividend rate, voting rights, conversion rights, rights and terms of
redemption and liquidation preferences of any wholly unissued series of
Preferred Stock and the number of shares constituting any series and the
designation thereof, of any of them; and
WHEREAS,
it is the desire of the Board of Directors of the Corporation, pursuant to its
authority as aforesaid, to fix the rights, preferences, restrictions and other
matters relating to a series of Preferred Stock, which shall consist of up to
1,500 shares of the Preferred Stock which the Corporation has the authority to
issue, as follows:
NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for
the issuance of a series of Preferred Stock for cash or exchange of other
securities, rights or property and does hereby fix and determine the rights,
preferences, restrictions and other matters relating to such series of Preferred
Stock as follows:
TERMS OF
PREFERRED STOCK
ARTICLE 1 Designation, Amount and Par
Value. The series of Preferred Stock shall be designated as
the Corporation’s Series C Preferred Stock (the “Series C Preferred
Stock”) and the number of shares so designated shall be 1,500 (which
shall not be subject to increase without any consent of the holders of the
Series C Preferred Stock (each a “Holder” and
collectively, the “Holders”) that may be
required by applicable law. Each share of Series C Preferred Stock
shall have a par value of $0.0001 per share.
ARTICLE 2 Ranking and
Voting.
a. Ranking. The
Series C Preferred Stock shall, with respect to dividend rights and rights upon
liquidation, winding-up or dissolution, rank: (i) senior to the Corporation’s
common stock, par value $0.0001 per share (“Common Stock”), and
any other class or series of Preferred Stock of the Corporation (collectively,
together with any warrants, rights, calls or options exercisable for or
convertible into such Preferred Stock, the “Junior Securities”);
and (ii)
junior to all existing and future indebtedness of the Corporation.
b. Voting. Except
as required by applicable law or as set forth herein, the holders of shares of
Series C Preferred Stock will have no right to vote on any matters, questions or
proceedings of this Corporation including, without limitation, the election of
directors.
ARTICLE 3 Dividends and Other
Distributions. Commencing on the date of the issuance of any
such shares of Series C Preferred Stock (each respectively an “Issuance Date”),
Holders of Series C Preferred Stock shall be entitled to receive dividends on
each outstanding share of Series C Preferred Stock (“Dividends”), which
shall accrue in shares of Series C Preferred Stock at a rate equal to 10.0% per annum from
the Issuance Date. Accrued Dividends shall be payable upon redemption
of the Series C Preferred Stock in accordance with Section 6.
3.1 Any
calculation of the amount of such Dividends payable pursuant to the provisions
of this Section
3 shall be made based on a 365-day year and on the number of days
actually elapsed during the applicable period, compounded annually.
3.2 So
long as any shares of Series C Preferred Stock are outstanding, no dividends or
other distributions will be paid, declared or set apart with respect to any
Junior Securities. The Common Stock shall not be redeemed while the
Series C Preferred Stock is outstanding.
ARTICLE 4 Protective
Provision. So long as any shares of Series C Preferred Stock
are outstanding, the Corporation shall not, without the affirmative approval of
the Holders of a majority of the shares of the Series C Preferred Stock then
outstanding (voting as a class), (a) alter
or change adversely the powers, preferences or rights given to the Series C
Preferred Stock or alter or amend this Certificate of Designations, (b)
authorize or create any class of stock ranking as to distribution of assets upon
a liquidation senior to or otherwise pari passu with the Series C Preferred
Stock, (c) amend its certificate or articles of incorporation, articles of
association, or other charter documents in breach of any of the provisions
hereof, (d) increase the authorized number of shares of Series C Preferred
Stock, (e) liquidate, dissolve or wind-up the business and affairs of the
Corporation, or effect any Deemed Liquidation Event (as defined below), or (f)
enter into any agreement with respect to the foregoing.
2
c. A
“Deemed Liquidation
Event” shall mean: (i) a merger or consolidation in which the
Corporation is a constituent party or a subsidiary of the Corporation is a
constituent party and the Corporation issues shares of its capital stock
pursuant to such merger or consolidation, except any such merger or
consolidation involving the Corporation or a subsidiary in which the shares of
capital stock of the Corporation outstanding immediately prior to such merger or
consolidation continue to represent, or are converted into or exchanged for
shares of capital stock that represent, immediately following such merger or
consolidation, at least a majority, by voting power, of the capital stock of the
surviving or resulting corporation or if the surviving or resulting corporation
is a wholly owned subsidiary of another corporation immediately following such
merger or consolidation, the parent corporation of such surviving or resulting
corporation; or (ii) the sale, lease, transfer, exclusive license or other
disposition, in a single transaction or series of related transactions, by the
Corporation or any subsidiary of the Corporation of all or substantially all the
assets of the Corporation and its subsidiaries taken as a whole, or
the sale or disposition (whether by merger or otherwise) of one or more
subsidiaries of the Corporation if substantially all of the assets of the
Corporation and its subsidiaries taken as a whole are held by such subsidiary or
subsidiaries, except where such sale, lease, transfer, exclusive license or
other disposition is to a wholly owned subsidiary of the
Corporation.
d. The
Corporation shall not have the power to effect a Deemed Liquidation Event
referred to in Section 4(a) unless the agreement or plan of merger or
consolidation for such transaction provides that the consideration payable to
the stockholders of the Corporation shall be allocated among the holders of
capital stock of the Corporation in accordance with Section
5.
2. Liquidation.
a. Upon
any liquidation, dissolution or winding up of the Corporation, whether voluntary
or involuntary, after payment or provision for payment of debts and other
liabilities of the Corporation, before any distribution or payment shall be made
to the holders of any Junior Securities by reason of their ownership thereof,
the Holders of Series C Preferred Stock shall first be entitled to be paid out
of the assets of the Corporation available for distribution to its stockholders
an amount with respect to each outstanding share of Series C Preferred Stock
equal to $10,000.00 (the
“Original Series C
Issue Price”), plus any accrued but unpaid Dividends thereon
(collectively, the “Series C Liquidation
Value”). If, upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the amounts payable with
respect to the shares of Series C Preferred Stock are not paid in full, the
holders of shares of Series C Preferred Stock shall share equally and ratably in
any distribution of assets of the Corporation in proportion to the liquidation
preference and an amount equal to all accumulated and unpaid Dividends, if any,
to which each such holder is entitled
b. After
payment has been made to the Holders of the Series C Preferred Stock of the full
amount of the Series C Liquidation Value, any remaining assets of the
Corporation shall be distributed among the holders of the Corporation’s Junior
Securities in accordance with the Corporation’s Certificates of Designation and
Certificate of Incorporation.
c. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation shall be insufficient to make payment in full to all Holders,
then such assets shall be distributed among the Holders at the time outstanding,
ratably in proportion to the full amounts to which they would otherwise be
respectively entitled.
3
3. Redemption.
a. Corporation’s Redemption
Option. Upon or after the fourth anniversary of the initial
Issuance Date, the Corporation shall have the right, at the Corporation’s
option, to redeem all or a portion of the shares of Series C Preferred Stock, at
a price per share (the “Corporation Redemption
Price”) equal to 100% of the Series C Liquidation Value.
b. Early
Redemption. Prior to redemption pursuant to Section 6(a)
hereof, the Corporation shall have the right, at the Corporation’s option, to
redeem all or a portion of the shares of Series C Preferred Stock, at a price
per share equal to: (i) 127% of the Series C Liquidation Value if redeemed on or
after the first anniversary but prior to the second anniversary of the initial
Issuance Date, (ii) 118% of the Series C Liquidation Value if redeemed on or
after the second anniversary but prior to the third anniversary of the initial
Issuance Date, and (iii) 109% of the Series C Liquidation Value if redeemed on
or after the third anniversary but prior to the fourth anniversary of the
initial Issuance Date.
c. Mandatory
Redemption. If the Corporation determines to liquidate,
dissolve or wind-up its business and affairs, or effect any Deemed Liquidation
Event, the Corporation shall redeem the Series C Preferred Stock at the prices
set forth in Section 6(b) including the premium for early redemption set forth
therein.
d. Mechanics of
Redemption. If the Corporation elects to redeem any of the
Holders’ Series C Preferred Stock then outstanding, it shall do so by delivering
written notice thereof via facsimile and overnight courier (“Notice of Redemption at
Option of Corporation”) to each Holder, which Notice of Redemption at
Option of Corporation shall indicate (A) the number of shares of Series C
Preferred Stock that the Corporation is electing to redeem and (B) the
Corporation Redemption Price (plus the premium for early redemption pursuant to
Section 6(b) if
applicable).
e. Payment of Redemption
Price. Upon receipt by any Holder of a Notice of Redemption at
Option of Corporation, such Holder shall promptly submit to the Corporation such
Holder’s Series C Preferred Stock certificates. Upon receipt of such
Holder’s Series C Preferred Stock certificates, the Corporation shall pay the
Corporation Redemption Price (plus the premium for early redemption pursuant to
Section 6(b) if
applicable), to such Holder, at the Corporation’s option either (i) in cash, or
(ii) by offset against any outstanding note payable from Holder to the
Corporation that was issued by Holder in connection with the exercise of
warrants by such Holder.
4. Transferability. The
Series C Preferred Stock may only be sold, transferred, assigned, pledged or
otherwise disposed of (“Transfer”) in
accordance with state and federal securities laws. The Corporation
shall keep at its principal office, or at the offices of the transfer agent, a
register of the Series C Preferred Stock. Upon the surrender of any
certificate representing Series C Preferred Stock at such place, the
Corporation, at the request of the record Holder of such certificate, shall
execute and deliver (at the Corporation’s expense) a new certificate or
certificates in exchange therefor representing in the aggregate the number of
shares represented by the surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such number of
shares as is requested by the Holder of the surrendered certificate and shall be
substantially identical in form to the surrendered certificate.
4
5. Miscellaneous.
a. Notices. Any
and all notices to the Corporation shall be addressed to the Corporation’s
President or Chief Executive Officer at the Corporation’s principal place of
business on file with the Secretary of State of the State of
Delaware. Any and all notices or other communications or deliveries
to be provided by the Corporation to any Holder hereunder shall be in writing
and delivered personally, by facsimile, sent by a nationally recognized
overnight courier service addressed to each Holder at the facsimile telephone
number or address of such Holder appearing on the books of the Corporation, or
if no such facsimile telephone number or address appears, at the principal place
of business of the Holder. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section 8 prior to
5:30 p.m. Eastern time, (ii) the date after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this section later than 5:30 p.m. but prior to 11:59 p.m.
Eastern time on such date, (iii) the second business day following the date of
mailing, if sent by nationally recognized overnight courier service, or (iv)
upon actual receipt by the party to whom such notice is required to be
given.
b.
Lost or
Mutilated Preferred Stock Certificate. Upon receipt of
evidence reasonably satisfactory to the Corporation (an affidavit of the
registered Holder shall be satisfactory) of the ownership and the loss, theft,
destruction or mutilation of any certificate evidencing shares of Series C
Preferred Stock, and in the case of any such loss, theft or destruction upon
receipt of indemnity reasonably satisfactory to the Corporation (provided that
if the Holder is a financial institution or other institutional investor its own
agreement shall be satisfactory) or in the case of any such mutilation upon
surrender of such certificate, the Corporation shall, at its expense, execute
and deliver in lieu of such certificate a new certificate of like kind
representing the number of shares of such class represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
c. Headings. The
headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designations and shall not be deemed to limit or affect any
of the provisions hereof.
RESOLVED,
FURTHER, that the chairman, chief executive officer, president or any
vice-president, and the secretary or any assistant secretary, of the Corporation
be and they hereby are authorized and directed to prepare and file a Designation
of Preferences, Rights and Limitations of Series C Preferred Stock in accordance
with the foregoing resolution and the provisions of Delaware law.
5
IN
WITNESS WHEREOF, the undersigned have executed this Certificate this 3rd day of
December 2009.
By:
|
/s/ David J. Laky
|
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Name:
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David
J. Laky
|
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Title:
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President
and Chief Executive Officer
|
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By:
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/s/ Cheryl K. Sadowski
|
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Name:
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Cheryl
K. Sadowski
|
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Title:
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Treasurer
and Chief Financial Officer
|
6