Attached files
Exhibit
10.74
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATIONS OF PREFERENCES AND RIGHTS
OF
SERIES B
CONVERTIBLE PREFERRED STOCK
OF
INVISA,
INC.,
a Nevada
corporation
The
undersigned, Edmund C. King, certifies that:
1. He
is the duly acting President of Invisa, Inc., a corporation organized and
existing under the Corporation Code of the State of Nevada (the
"CORPORATION").
2.
Pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation of the
Corporation, and pursuant to the provisions of
the Corporations Code of the State
of Nevada, said Board of
Directors, pursuant to a meeting held on January
11, 2010, adopted a resolution amending and
restating the rights, preferences, privileges and
restrictions of, and the number of shares comprising, the
Corporation's Series B Convertible Preferred Stock, which
resolution is as follows:
RESOLVED, that
a series of Preferred Stock in the Corporation, having the rights,
preferences, privileges and restrictions, and the number
of shares constituting such series and the designation of such series,
authorized by the Board
of Directors of the Corporation pursuant to
authority given by the Corporation's Certificate of
Incorporation, be, and hereby is, amended and restated as set forth
below.
NOW, THEREFORE, BE
IT RESOLVED, that the Board of Directors hereby
amends and restates the
rights, preferences, privileges and restrictions relating
to, the Series B Preferred Stock as follows:
(a) Determination. The
series of Preferred Stock is hereby designated Series B Convertible Preferred
Stock (the "SERIES B PREFERRED STOCK").
(b)
Authorized Shares. The number of authorized shares constituting the Series B
Preferred Stock shall be Ten Thousand (10,000) shares of such
series.
(c) Dividends. On
or after January 1, 2010, the holder of the Series B Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
any assets of the Corporation legally available therefor, such dividends as may
be declared from time to time by the Board of Directors. Nothing
herein shall obligate or require the Board of Directors to declare a dividend
for the Series B Preferred Stock on or after January 1, 2010. To the extent that
any dividends accrued prior to January 1, 2010 and remain outstanding, such
dividend may be paid in whole or in part by the delivery of (i) cash, (ii)
shares of Series B Preferred Stock valued at $100.00 per share or (iii) shares
of Common Stock at the Conversion Price (as hereinafter
defined). Payments of dividends with Series B Preferred
Stock may be made at any time and from time to time at the option of the
Company, in its sole discretion.
(d)
Liquidation Preference.
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(i)
Preference upon Liquidation, Dissolution or Winding Up. In the event of any
dissolution or winding up of the Corporation, whether voluntary or
involuntary, holders of each outstanding share
of Series B Preferred Stock
shall be entitled to
be paid first out of
the assets of the Corporation available
for distribution to shareholders, whether
such assets are capital, surplus or earnings, an amount equal to
$100.00 (the "SERIES B PURCHASE PRICE") per share of Series B
Preferred Stock held (as adjusted for any
stock splits, stock dividends or recapitalizations of the
Series B Preferred Stock) and any declared but unpaid dividends on
such share, before any payment shall be made to the holders of the Common Stock,
or any other stock of the Corporation ranking junior to
the Series B Preferred Stock with regard to any distribution of assets upon
liquidation, dissolution or winding up of the
Corporation. The holders of the Series B Preferred Stock shall be
entitled to share ratably, in accordance
with the respective preferential amounts payable on such stock, in any
distribution which is not sufficient to pay in full the aggregate of the amounts
payable thereon. If, upon
any liquidation, dissolution or winding up of
the Corporation, the assets to
be distributed to the holders of
the Series B Preferred Stock shall be insufficient to permit payment
to such shareholders of
the full preferential amounts aforesaid, then all of the assets of
the Corporation available for distribution to
shareholders shall be distributed to the holders of Series B
Preferred Stock. Each holder of the Series B Preferred
Stock shall be entitled to receive that portion of the assets available for
distribution as the number of outstanding shares of Series B Preferred Stock
held by such holder bears to the total number of shares of Series B Preferred
Stock. Such payment shall constitute payment in full to the holders
of the Series B Preferred Stock upon the liquidation, dissolution or winding up
of the Corporation. After such payment shall have been made in full, or funds
necessary for such payment shall have been set aside by the Corporation in trust
for the account of the holders of Series B Preferred Stock, so as to be
available for such payment, such holders of Series B Preferred Stock shall be
entitled to no further participation in the distribution of the assets of the
Corporation.
(ii) Consolidation,
Merger and Other Corporate Events. A consolidation or
merger of the Corporation (except into or with
a subsidiary or affiliated corporation) or a sale,
lease, mortgage, pledge, exchange, transfer
or other disposition of all or substantially all of the assets of the
Corporation or any reclassification of the stock of
the Corporation (other than a change in
par value or from no par to par, or from par to no par or
as the result of an event described in subsection (iv), (v), (vi) or
(viii) of paragraph (f)), shall be regarded as
a liquidation, dissolution or
winding up of the affairs of the Corporation within the
meaning of this paragraph (d), provided, however, in the case of
a merger, if (a) the Corporation is
the surviving entity, (b) the
Corporation's shareholders hold
a majority of the shares of
the surviving entity, and (c) the Corporation's directors
hold a majority of the seats on the board of directors of
the surviving entity, then
such merger shall not be regarded as a
liquidation, dissolution or winding up within the meaning of this
paragraph (d). In no event shall the issuance of new classes of
stock, whether senior, junior or on a parity with the
Series B Preferred Stock, or any stock splits, or the
issuance of common stock in connection with an acquisition of the securities,
assets or business of another company, joint ventures, merger of a subsidiary
and employee stock options be deemed a "reclassification, merger or
consolidation" under or otherwise limited by the terms
hereof.
(iii)
Distribution of Cash and Other Assets. In the event of a
liquidation, dissolution or winding up of
the Corporation resulting in the
availability of assets other than cash
for distribution to the holders of the Series B
Preferred Stock, the holders of the Series B Preferred
Stock shall be entitled to a distribution of
cash and/or assets equal to the value of the
liquidation preference stated in subsection (i)
of this paragraph (d), which valuation shall be made solely by the
Board of Directors, and provided that such Board of Directors was acting in good
faith, shall be conclusive.
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(iv) Distribution to Junior Security Holders. After the
payment or distribution to the holders of the Series B
Preferred Stock of the
full preferential amounts aforesaid, the
holders of Series B Preferred Stock shall have
no further rights in respect at
such Series B Stock which shall become null and
void, and the holders of the Common Stock
then outstanding, or any other stock
of the Corporation ranking as to
assets upon liquidation, dissolution or winding
up of the Corporation junior to the Series B Preferred
Stock, shall be entitled to receive ratably all of the
remaining assets of the Corporation.
(v) Preference;
Priority. References to
a stock that is "SENIOR" to, on a
"PARITY" with or "JUNIOR" to other stock as
to liquidation shall refer, respectively, to rights of priority of
one series or class of stock over another in the distribution of
assets on any liquidation, dissolution or winding up of
the Corporation. The Series B Preferred Stock shall be
senior to the Common Stock of the Corporation and junior to any
subsequent series of Preferred Stock issued by the
Corporation.
(e)
Voting Rights. Except as otherwise required by law, the holder of
shares of Series B Preferred Stock shall not have the
right to vote on matters that come before the shareholders.
(f) Conversion
Rights. The holders of Series B Preferred Stock will have the
following conversion rights:
(i)
Right to Convert. Subject to and
in compliance with the provisions of this paragraph (f),
any issued and outstanding shares of Series B
Preferred Stock shall, upon election in the discretion of the
Corporation, be automatically converted by the Corporation, at any time or from
time to time into fully paid and non-assessable shares of
Common Stock at the conversion rate in effect at the time of conversion,
determined as provided herein (the “Conversion
Shares”); provided, that a holder of Series
B Preferred Stock may at any given time be required to
convert up to that number of shares of Series
B Preferred Stock so that, upon conversion, the
aggregate beneficial ownership of the Corporation's Common Stock
(calculated pursuant to Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of such holder and all
persons affiliated with such holder is not more than 9.99% of the
Corporation's Common Stock then outstanding (the “Conversion
Threshold”).
(ii) Mechanics
of Conversion. Upon the determination by the Corporation that any
holder has fallen below the Conversion Threshold, the Corporation may
automatically convert such number of shares of the Series B Preferred Stock
which may equal, but shall not exceed the Conversion Threshold, by the
conversion of such number of Series B Preferred Stock, that equals such number
of Common Stock as such holder shall be entitled. Such conversion
shall be automatically completed upon issuance by the Corporation of written
Notice of Conversion mailed by regular US mail to the address of the record
Holder of the Series B Preferred Stock as reflected on the books of the transfer
agent or if no transfer agent the records of the Corporation (the “Notice of
Conversion”). In issuing the Notice of Conversion and effecting the conversion,
the Corporation may rely upon the records of the Company’s transfer agent, or if
no transfer agent upon the Corporation’s books and records, as final and
absolute proof of the identity of holder of record of the shares of Series B
Preferred stock, the number of shares of Series B Preferred stock owned and the
address of the Holder. Immediately upon issuance of such Notice of Conversion,
the Holder shall be treated as a common stockholder for all purposes and such
Holder shall have no continuing interest in or claim to Series B Preferred
stock. Upon Notice of Conversion by the Corporation , the Holder
shall surrender the certificate or certificates therefor, duly
endorsed, at the office of the Corporation or
of any transfer agent for the Common Stock, and
the Corporation shall give written notice to the transfer agent to convert the
same and shall state therein the number of shares of Series B Preferred Stock
being converted. Thereupon, the Corporation shall promptly issue and
deliver to the record Holders address as reflected on the books of the transfer
agent, or if no transfer agent the Corporation’s books, a certificate or
certificates for the number of shares of Common Stock to which Holder shall be
entitled, not to exceed the Conversion Threshold and, if applicable, a
certificate or certificates for the number of shares of Series B Preferred Stock
existing immediately after an automatic conversion. The effectiveness
of the Conversion shall not be affected by Holder’s failure to surrender or
deliver the certificates for the Series B Preferred shares to the Corporation;
however, Corporation shall have no obligation to deliver certificates for
Conversion Shares until such surrender and delivery has been completed by
Holder. Should it occur that a Holder of Series B Preferred stock transfers or
assign shares of Series B Preferred stock without giving the transfer agent or
the Corporation proper notice, the Holder shall be liable for any damage to the
Corporation resulting therefrom and any Conversion Shares issued or to be issued
to Holder based on the incorrect information on the Corporations books or the
books of its transfer agent shall be voidable by the Corporation.
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(iii) Conversion
Price. The number of shares into which one share of Series B
Preferred Stock shall be convertible shall be determined
by dividing the Series B Purchase Price by $0.12 ( hereinafter, the “Conversion
Price”)
(iv) Adjustment for Stock Splits and
Combinations. If the Corporation shall at any time, or from time to
time after the date shares of the Series B Preferred Stock are first issued (the
"ORIGINAL ISSUE DATE"), effect a subdivision of the
outstanding Common Stock, the Conversion Price in
effect immediately prior thereto shall
be proportionately decreased, and
conversely, if the Corporation shall at any time or from time to time
after the Original Issue Date combine
the outstanding shares of Common Stock, the
Conversion Price then in effect immediately before the combination
shall be proportionately increased. Any adjustment under this
paragraph (f)(iv) shall become effective at
the close of business on the
date the subdivision or combination becomes
effective.
(v)
Adjustment for Certain Dividends and Distributions. In the event the Corporation
at any time, or from time to time after the Original Issue Date, shall make or
issue, or fix a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such
event the Conversion Price then in effect shall
be decreased as of the time of such
issuance or, in the event such a record date shall have
been fixed, as of the close
of business on
such record date, by multiplying the
Conversion Price then in effect by a fraction:
(A)
the numerator of which shall be the total number of shares of Common
Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date; and
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(B)
the denominator of which shall be
the total number of shares of
Common Stock issued
and outstanding immediately prior to the time of
such issuance or the close
of business on such record date plus
the number of shares of
Common Stock issuable in payment of such
dividend or distribution; provided, however, if
such record date shall have been fixed and such dividend
is not fully paid or if such distribution is not fully
made on the date fixed therefor, the Conversion Price shall be recomputed
accordingly as of the close of business on
such record date and thereafter, the
Conversion Price shall be adjusted pursuant to
this paragraph
(f)(v) as of the time of actual payment of such dividends or
distributions.
(vi)
Adjustments for Other Dividends and Distributions. In the event
the Corporation at any time or from time to time after the Original
Issue Date shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in securities of
the Corporation other than shares of
Common Stock, then and in each such
event provision shall be made so that
the holders of such Series B Preferred Stock shall receive
upon conversion thereof in addition to the number of shares of Common
Stock receivable thereupon, the amount of securities of the
Corporation that they would have received had
their Series B Preferred Stock been
converted into Common Stock on the date of such event and
had thereafter, during the period from the date of such event to
and including the conversion
date, retained such securities receivable by
them as aforesaid during such period giving application to all
adjustments called for during such period under
this paragraph (f) with respect to the rights
of the holders of the Series B Preferred Stock.
(vii) Adjustment for Reclassification Exchange or
Substitution. If the Common Stock issuable upon the
conversion of the Series B Preferred Stock shall be changed into the
same or a different number of shares
of any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend provided for above, or a reorganization, merger, consolidation
or sale of assets provided for elsewhere in
this paragraph (f)), then and in each such
event the holder of each share of Series B Preferred Stock shall have
the right thereafter to convert such share into the kind and amount of shares of
stock and other securities and
property receivable upon such reorganization,
reclassification or other change, by holders of the number
of shares of Common
Stock into which such shares
of Series
B Preferred Stock might have been
converted immediately prior to such reorganization, reclassification, or change,
all subject to further adjustment as provided herein.
(viii) Reorganization,
Mergers, Consolidations or Sales of Assets. If
at any time or from time to time there shall be
a capital reorganization of the
Common Stock (other than
a subdivision, combination, reclassification or
exchange of shares provided for elsewhere in this paragraph (f) or
a merger or consolidation of
the Corporation with or into another
corporation, or the sale of all
or substantially all of the Corporation's
properties and assets to any other person, then, as a part of such
reorganization, merger, consolidation or sale, provision
shall be made so that the holders of the Series
B Preferred Stock shall thereafter be
entitled to receive upon conversion of such Series B
Preferred Stock, the number of shares of stock or
other securities or property of the Corporation or of the successor
corporation resulting from such merger
or consolidation or sale, to which a holder of
Common Stock deliverable upon conversion would have been
entitled on such
capital reorganization, merger, consolidation
or sale. In any such case, appropriate adjustment shall be
made in the application of the provisions of
this paragraph (f) with respect to the rights
of the holders of the Series B Preferred Stock after the
reorganization, merger, consolidation or sale to the end
that the provisions of this paragraph (f) (including adjustment of the
Conversion Price then in effect and the number of shares purchasable upon
conversion of the Series B Preferred Stock) shall be applicable after that event
as nearly equivalent as may be practicable.
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(ix) Sale
of Common Stock
or Securities Convertible Into Common Stock. In
the event the Corporation sells or issues Common Stock or other
securities convertible into
or exercisable for Common Stock at a
per share price, exercise price or conversion price lower
than the Conversion Price then in effect (other than
in connection with an acquisition of
the securities, assets
or business of another company, licensing, partnership, technology
transfer, marketing alliance, joint ventures or employee, director,
officer, or consultant issuances or stock options), the Conversion Price shall
be subject to weighted average anti-dilution adjustments.
(x) Certificate
of Adjustment. In each case of an adjustment or readjustment of the
Conversion Price or the securities issuable upon conversion of the
Series B Preferred Stock, the Corporation shall compute
such adjustment or readjustment in
accordance herewith and the Corporation's
Chief Financial Officer shall prepare
and sign a certificate showing such adjustment
or readjustment, and shall mail such certificate by first class mail,
postage prepaid, to each registered holder of
the Series B Preferred Stock at the holder's address as shown in the
Corporation's books. The certificate shall set forth such
adjustment or readjustment, showing in detail
the facts upon which such adjustment or readjustment is based.
(xi)
Notices of Record Date. In the event of (A) any taking by
the Corporation of a record of the holders of any class or series of
securities for the purpose of determining the
holders thereof who are entitled to receive
any dividend or other distribution or (B) any reclassification or
recapitalization of the capital stock of
the Corporation, any merger or
consolidation
of the Corporation or any transfer of all or substantially all of the
assets of the Corporation to any other corporation, entity or person, or any
voluntary or involuntary dissolution, liquidation or winding up of the
Corporation, the Corporation shall mail to
each holder of Series B Preferred Stock at least 10
days prior to the
record date specified therein, a
notice specifying (1) the date on which any such record is to be
taken for the purpose of such dividend or distribution and
a description of such dividend or
distribution, (2) the date on which any such
reorganization, reclassification,
transfer, consolidation, merger, dissolution, liquidation or winding
up is expected to become effective and (3) the time, if any is to be fixed, as
to when the holders of record of Common Stock (or other securities) shall be
entitled to exchange their shares, of Common Stock (or
other securities) for securities or other property deliverable upon
such reorganization, reclassification, transfer, consolidation, merger,
dissolution, liquidation or winding up.
(xii)
Fractional Shares. No fractional shares of Common Stock shall be issued upon
conversion of the Series B Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall round the shares up to the nearest whole
number.
(xiii) Reservation
of Stock Issuable Upon Conversion. The
Corporation shall at all times reserve and keep
available not less than the aggregate number of authorized but
unissued shares sufficient to effect the conversion of all then outstanding
shares of Series B Preferred Stock and if at any time the number of authorized
but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares
of Series B Preferred Stock, the Corporation will take such corporate action as
may, in the opinion of its counsel, be necessary to
increase its authorized but
unissued shares of Common Stock to such number of shares as shall be
sufficient for such purpose.
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(xiv)
Notices. Any notice required by the provisions of this paragraph (f) to be given
to the holders of shares of Series B Preferred Stock shall be deemed given (A)
if deposited in the United States mail, postage prepaid, or (B) if given by any
other reliable or generally accepted means (including by facsimile or by a
nationally recognized overnight courier service), in each case addressed to each
holder of record at his address (or facsimile number) appearing on the books of
the Corporation.
(xv)
Payment of Taxes. The Corporation will pay all transfer taxes and
other governmental charges that may be imposed in respect of the issue or
delivery of shares of Common Stock
upon conversion of shares of Series B Preferred
Stock.
(g)
No Re-issuance of Preferred Stock. Except as otherwise expressly permitted
herein with respect to dividends, any shares of Series B Preferred Stock
acquired by the Corporation by reason of purchase, conversion or otherwise shall
be canceled, retired and eliminated from the shares of Series B Preferred Stock
that the Corporation shall be authorized to issue. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series
of Preferred Stock subject to the
conditions and restrictions on issuance set forth in the Articles of
Incorporation or
in any certificate of designation creating a series of
Preferred Stock or any similar stock or as otherwise required by
law.
(h)
Severability. If any right, preference or limitation of the Series B
Preferred Stock set forth herein is
invalid, unlawful or incapable of being enforced by
reason of any rule, law
or public policy, all other rights,
preferences and limitations set forth herein
that 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 shall be deemed dependent upon any other such right,
preference or limitation unless so expressed herein.
3. The number of authorized shares of Preferred Stock of the
Corporation is 5,000,000 and the number of
shares of Series B Preferred Stock, 9,000 of which has been issued and
outstanding, is 10,000.
The undersigned declares under penalty
of perjury that the matters set out in
the foregoing Certificate are true of his
own knowledge. Executed at Sarasota, Florida on this 11th day of
January, 2010.
Print
Name: Edmund C. King
Title: Acting
President and Chief Financial Officer
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