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EXHIBIT
3.1
CERTIFICATE
OF DESIGNATION AND PREFERENCES
OF
SERIES A
CONVERTIBLE PREFERRED STOCK
OF
EXOUSIA
ADVANCED MATERIALS, INC.
Pursuant
to and in accordance with Sections 21.155 and 21.156 of the Texas Business
Organization Code of the State of Texas, Exousia Advanced Materials, Inc., a
Texas corporation (the "Corporation"), does hereby certify that, pursuant to the
authority conferred on the Board of Directors by the Articles of Incorporation
of the Corporation, and pursuant and in accordance with Sections 21.155 and
21.156 of the Texas Business Organization Code of the State of Texas, said Board
of Directors, pursuant to unanimous written consent dated as of December 31,
2009, duly adopted resolutions providing for the authorization and issuance of
Ten Million (10,000,000) shares of Series A Convertible Preferred Stock, (the
"Series A Preferred Stock"), which resolutions are and read as
follows:
RESOLVED,
that, pursuant to the authority vested in the Board of Directors of the
Corporation in accordance with the provisions of its Articles of Incorporation,
a series of Convertible Preferred Stock of the Corporation be, and it hereby is,
authorized and created, and that the designation and amount thereof and the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series and the qualifications, limitations
and restrictions thereof are as follows:
Of the
authorized but unissued shares of the capital stock of the Corporation, there is
hereby established a series of the authorized preferred stock of this
Corporation having a par value of $.01 per share, which series shall be
designated as "Series A Convertible Preferred Stock" (the "Series A Preferred
Stock"), shall consist of Ten Million (10,000,000) shares and shall have the
following dividend rights, dividend rates, voting rights, conversion rights,
rights and terms of redemption, redemption prices and liquidation
preferences.
1. Certain
Definitions. Unless the context otherwise requires, the terms
defined in this paragraph 1 shall have, for all purposes of this resolution, the
meanings herein specified.
Board of
Directors. The term "Board of Directors" shall mean the Board
of Directors of this Corporation and, to the extent permitted by law, any
committee of such Board of Directors authorized to exercise the powers of such
Board of Directors.
Common
Stock. The term "Common Stock" shall mean all shares now or
hereafter authorized of any class of common stock of this Corporation and any
other stock of this Corporation, howsoever designated, authorized after the
Issue Date, which has the right (subject always to prior rights of any class or
series of preferred shares) to participate in the distribution of the assets and
earnings of this Corporation without limit as to per share amount.
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Issue
Date. The term "Issue Date" shall mean the date that each
share of Preferred Stock is issued to a holder by the Corporation.
Junior
Stock. The term "Junior Stock" shall mean Common Stock, and
any other class or series of stock of the Corporation authorized after the Issue
Date not entitled to receive any assets upon liquidation, dissolution or winding
up of the affairs of the Corporation until the Series A Preferred Stock shall
have received the entire amount to which such stock is entitled upon such
liquidation, dissolution or winding up.
Liquidation
Price. The term "Liquidation Price" shall mean Two Dollars and
60/100 ($2.60) per share of Series A Preferred Stock.
Parity
Stock. The term "Parity Stock" shall mean any class or series
of stock of the Corporation authorized after the Issue Date entitled to receive
payment of dividends on a parity with the Series A Preferred Stock and, for
purposes of paragraph 3 below, shall also mean any class or series of stock of
the Corporation authorized after the Issue Date entitled to receive assets upon
liquidation, dissolution or winding up of the affairs of the Corporation on a
parity with the Series A Preferred Stock.
Senior
Stock. The term "Senior Stock" shall mean any class or series
of stock of the Corporation authorized after the Issue Date ranking senior to
the Series A Preferred Stock in respect of the right to receive payment of
dividends, and for purposes of paragraph 3 below, shall also mean any class or
series of stock of the Corporation authorized after the Issue Date ranking
senior to the Series A Preferred Stock in respect of the right to participate in
any distribution upon liquidation, dissolution or winding up of the affairs of
the Corporation.
2. Dividends. While
the Series A Preferred Stock is outstanding, each holder of shares of Series A
Preferred Stock shall receive Twenty and 475/1000 (20.475) times the dividends
declared and paid with respect to each share of Common Stock.
3. Distributions Upon
Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or other winding up of the
affairs of the Corporation, subject to the prior preferences and other rights of
any Senior Stock, but before any distribution or payment shall be made to the
holders of Junior Stock, the holders of the Series A Preferred Stock shall be
entitled to be paid the Liquidation Price of all outstanding shares of Series A
Preferred Stock as of the date of such liquidation or dissolution or such other
winding up, and no more, in cash or in property taken at its fair value as
determined by the Board of Directors of the Corporation, or both, at the
election of the Board of Directors. If such payment shall have been
made in full to the holders of the Series A Preferred Stock and if payment shall
have been made in full to the holders of any Senior Stock and Parity Stock of
all amounts to which such holders shall be entitled, the remaining assets and
funds of the Corporation shall be distributed among the holders of Junior Stock,
according to their respective shares and priorities. If, upon any
such liquidation, dissolution or other winding up of the affairs of the
Corporation, the net assets of the Corporation distributable among the holders
of all outstanding shares of the Series A Preferred Stock and of any Parity
Stock shall be insufficient to permit the payment in full to such holders of the
preferential amounts to which they are entitled, then the entire net assets of
the Corporation remaining after the distributions to holders of any Senior Stock
of the full amounts to which they may be entitled shall be distributed among the
holders of the Preferred Stock and of any Parity Stock ratably in proportion to
the full amounts to which they would otherwise be respectively
entitled. Neither the consolidation or merger of the Corporation into
or with another corporation or corporations, nor the sale of all or
substantially all of the assets of the Corporation to another corporation or
corporations shall be deemed a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this paragraph 3.
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4. Convertibility.
(a) Automatic Conversion of
Series A Preferred Stock. When the Articles of Incorporation
of the Company shall have been amended to provide for sufficient additional
shares of authorized Common Stock to allow such conversion, each share of Series
A Preferred Stock which is then outstanding shall be automatically converted
into fully paid and nonassessable shares (subject to adjustment as herein
provided in Section 5) of Common Stock (as hereinafter defined for purposes
of this Section 4) of the Corporation at a conversion rate (the "Conversion
Rate") of Twenty and 475/1000 (20.475) shares of Common Stock for each share of
Series A Preferred Stock.
(b) Certification of
Shares. As soon as practicable after the conversion of the
Series A Preferred Stock into Common Stock, the Corporation shall issue and
shall deliver at the office of the holder of the Series A Preferred Stock (or
such other address of which the holder of such shares shall provide to the
Corporation) a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of the Series A Preferred
Stock.
(c) Survival of Conversion
Right. In case of any other reorganization of the Corporation
(or any other corporation the stock or other securities of which are at the time
deliverable on the conversion of the Shares) after the date of issuance of the
Shares, or in case, after such date, the Corporation (or any such other
corporation) shall consolidate with or merge into another corporation or convey
all or substantially all its assets to another corporation, then and in each
such case the holder(s) of the Shares, upon the conversion thereof, at any
time after the consummation of such reorganization, consolidation, merger
or conveyance, shall be entitled to receive the stock or other securities or
property to which such holder(s) would have been entitled upon such consummation
if such holder(s) had converted the Shares immediately prior thereto, all
subject to further adjustments as provided herein; in each such case all the
terms of this Section 4 (including this Directors' Resolution) shall be
applicable to the shares of stock or other securities or property receivable
upon the conversion of the Shares after such consummation.
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(d) Covenant regarding
Conversion Right. The Corporation will not, by amendment of
its Articles of Incorporation or through reorganization, consolidation, merger,
dissolution, sale of assets or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of the Shares (including
this Directors' Resolution), but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate in order to protect the rights of the holder(s) of
Shares against dilution or other impairment. Without limiting the
generality of the foregoing, as a condition precedent to the taking of any
action which would cause the then aggregate par value of the shares of Common
Stock issuable upon conversion of the then outstanding Shares to be below the
aggregate par value of the shares of Common Stock issuable upon conversion, the
Corporation will take such corporate action as may be necessary in order that it
may at all times validly and legally issue fully paid and nonassessable shares
of Common Stock upon conversion of the Shares. If in any case a state
of facts occurs wherein in the opinion of the Board of Directors the other
provisions of this Section 5 are not strictly applicable, or, if strictly
applicable, would not fairly protect the conversion rights of the holders of the
Preferred Stock in accordance with the essential intent and principles of such
provisions, then the Board of Directors shall make an adjustment consistent with
such essential intent and principles so as to protect such conversion rights as
aforesaid.
(e) Adjustment of the Conversion
Rate.
(1) In
case additional shares of Common Stock are issued as a dividend, stock split or
other distribution on the Common Stock without the payment to the Corporation of
any consideration, the Conversion Rate in effect at the opening of business on
the date of the issuance of such dividend, stock split or distribution (the
"Issuance Date") shall be adjusted by multiplying the Conversion Rate by a
fraction the numerator of which shall be the sum of (i) such number of shares
outstanding at the close of business immediately prior to the Issuance Date, and
(ii) the number of shares constituting such dividend, stock split or other
distribution, such reduction to become effective immediately after the opening
of business on the Issuance Date for such dividend or distribution and the
denominator of which shall be the number of shares of Common Stock outstanding
at the close of business immediately prior to the Issuance Date. For
the purposes of this paragraph, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Corporation.
(2) In
case the outstanding shares of Common Stock are reduced by a reverse stock split
or similar arrangement (but not the repurchase of shares of Common Stock by the
Corporation) without the payment by the Corporation of any consideration (the
"Interest Reduction"), the Conversion Rate in effect at the opening of business
on the Issuance Date shall be adjusted by multiplying the Conversion Rate by the
quotient (the "Quotient") of the number of shares of Common Stock outstanding at
the close of business immediately prior to the Issuance Date divided by the
number of shares of Common Stock which will be outstanding after the Interest
Reduction. For the purposes of this paragraph, the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Corporation.
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(f) Notice of Adjusted
Conversion Rate. Whenever the Conversion Rate is adjusted as
herein provided the Corporation shall compute the adjusted Conversion Rate in
accordance with Section (c) above and shall prepare a certificate signed by the
Treasurer or an Assistant Treasurer of the Corporation setting forth the
adjusted Conversion Rate and the effective date thereof and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall be delivered to the Preferred Shareholder as soon as
practicable but no later than 30 days after the effective date
thereof.
(g) Reservation of Common
Stock. The Corporation will at all times reserve and keep
available, solely for issuance and delivery upon the conversion of the Shares,
such shares of Common Stock and other stock, securities and property as from
time to time shall be issuable upon the exercise of the Shares at the time
outstanding.
5. Method of
Conversion.
(a) Conversion. Immediately
following the amendment of the Corporation's Articles of Incorporation to
increase the number of authorized shares of Common Stock, each share of
Preferred Stock shall automatically be converted to the number of shares of
Common Stock as determined by the Conversion Rate in effect at the time of
conversion.
(b) Manner of Effectuating
Conversion. In order to receive new shares of Common Stock
following the conversion, each Preferred Stockholder shall surrender the
original stock certificates representing his or her Preferred Stock in the
Corporation at the office of the Corporation.
On the
day ("Conversion Date") the Preferred Shareholder's Preferred Stock is
surrendered for conversion and received by the Corporation, all in accordance
with the foregoing provisions, and at such time the Corporation shall issue a
certificate or certificates representing Preferred Shareholder's converted
Common Stock and the Preferred Shareholder shall be treated for all purposes as
the record holder of the number of shares of Common Stock, for which number of
shares of Preferred Stock have been converted at such time; provided, however,
that any such conversion on any date when the stock transfer books of the
Corporation shall be closed shall be effective for all purposes at the opening
of business on the next succeeding day on which such stock transfer book is
open.
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6. Redemption. The
Series A Preferred Stock may not be redeemed by the Company without the consent
of the Preferred Shareholders.
7. Voting
Rights. The holders of the issued and outstanding shares
of Preferred Stock shall have Twenty and 475/1000 (20.475) votes for each share
of Series A Preferred Stock.
8. Exclusion of Other
Rights. Except as may otherwise be required by law, the shares
of Series A Preferred Stock shall not have any preferences or relative,
participating, optional or other special rights, other than those specifically
set forth herein. The shares of Series A Preferred Stock shall have
no preemptive or subscription rights.
9. Headings of
Subdivision. The headings of the various subdivisions hereof
are for convenience of reference only and shall not affect the interpretation of
any of the provisions hereof.
10. Severability of
Provisions. If any right, preference or limitation of the
Series A Preferred Stock set forth herein is invalid, unlawful or incapable of
being enforced by reason of any rule of law or public policy, all other rights,
preferences and limitations set forth herein which can be given effect without
the invalid, unlawful or unenforceable right, preference or limitation shall,
nevertheless, remain in full force and effect, and no right, preference or
limitation herein set forth shall be deemed dependent upon any other such right,
preference or limitation unless so expressed herein.
11. Status of Reacquired
Shares. Shares of Series A Preferred Stock which have been
issued and reacquired in any manner shall (upon compliance with any applicable
provisions of the laws of the State of Texas) have the status of authorized and
unissued shares of Series A Preferred Stock issuable in series undesignated as
to series and may be redesignated and reissued.
12. Merger of Exousia Merger
Subsidiary I, Inc. with Evergreen Global Investments
Ltd. Pursuant to the merger of Exousia Merger Subsidiary I,
Inc. with Evergreen Global Investments Ltd., the following shares of Series A
Preferred Stock shall be issued as follows:
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Able
Energy, Inc.
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6,026,958
Shares of Series A Preferred Stock
|
|
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Evergreen
Financial Services, Inc.
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3,894,367
Shares of Series A Preferred Stock
|
|
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Green
Tree Capital Group
|
78,675 Shares
of Series A Preferred Stock
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|
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Total
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10,000,000
Shares of Series A Preferred
Stock
|
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IN
WITNESS WHEREOF, Exousia Advanced Materials, Inc. has caused this certificate to
be duly executed as of this 31st day
of December, 2009.
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EXOUSIA
ADVANCED MATERIALS, INC.
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|
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By: //s//J. Wayne
Rodrigue
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|
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Name:
J. Wayne
Rodrigue
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Title: CEO/President/Chairman
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Attest:
//s//Brenda
Rodrigue_________
Secretary
or Assistant Secretary
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