Attached files
file | filename |
---|---|
EX-4 - EXHIBIT 4.1 - FITLIFE BRANDS, INC. | ex4-1.htm |
8-K - CURRENT REPORT - FITLIFE BRANDS, INC. | ftlf8k.htm |
Exhibit 3.1
CERTIFICATE
OF DESIGNATION, PREFERENCES AND RIGHTS
OF
SERIES
B JUNIOR PARTICIPATING PREFERRED STOCK
OF
FITLIFE
BRANDS, INC.
Dayton
Judd, being the Chairman of the Board of Directors of FitLife
Brands, Inc., a corporation organized and existing under the laws
of the State of Nevada (hereinafter called the “Corporation”), in accordance with
the provisions of Nevada Revised Statutes 78.1955 DOES HEREBY
CERTIFY:
That
pursuant to the authority conferred upon the Board of Directors of
the Corporation (hereinafter being referred to as the
“Board of
Directors” or the “Board”) by the Articles of
Incorporation of the Corporation, as amended (the
“Articles of
Incorporation”), the Board of Directors, on February
26, 2021, duly adopted the following resolution creating a series
of Preferred Stock designated as Series B Junior Participating
Preferred Stock:
RESOLVED, that
pursuant to the authority vested in the Board of Directors of the
Corporation by Article FOURTH of the Articles of Incorporation of
the Corporation, as amended, the Board of Directors hereby fixes
and determines the number, voting rights, designations,
preferences, qualifications, privileges, limitations, restrictions,
options, conversion rights and other special or relative rights of
the first series of the Preferred Stock, par value $0.01 per share,
which shall consist of 2,000 shares and shall be designated as
Series B Junior Participating Preferred Stock (the
“Series B Preferred
Stock”).
Special Terms of the Series B Preferred Shares
1. Designation and
Amount. The shares of such series shall be designated as Series B
Preferred Stock and the number of shares constituting the Series B
Preferred Stock shall be 2,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors
prior to issuance; provided, however, that no decrease shall reduce
the number of shares of the Series B Preferred Stock to a number
less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into
the Series B Preferred Stock; provided, further, that if more than
a total of 2,000 shares of Series B Preferred Stock shall be
issuable upon the exercise of Rights (the “Rights”) issued pursuant to the
Rights Agreement, dated as of February 26, 2021, and as
supplemented, restated or amended from time to time, by and between
the Corporation and Colonial Stock Transfer Company, Inc., as
rights agent (the “Rights
Agreement”), the Board, pursuant to Nevada Revised
Statutes 78.1955, shall direct by resolution or resolutions that a
certificate be properly executed, acknowledged, filed and recorded,
in accordance with the relevant provisions of the Act, providing
for the total number of shares of Series B Preferred Stock
authorized to be issued to be increased (to the extent that the
Articles of Incorporation then permits) to the largest number of
whole shares (rounded up to the nearest whole number) issuable upon
exercise of such Rights.
-1-
2. Dividends
and Distributions.
(a) Subject
to the rights of the holders of any shares of any series of
Preferred Stock of the Corporation (the “Preferred Stock”) (or any similar
stock) ranking prior and superior to the shares of Series B
Preferred Stock with respect to dividends, the holders of shares of
the Series B Preferred Stock, in preference to the holders of
common stock, par value $0.01 per share, of the Corporation (the
“Common Stock”)
and of any other stock of the Corporation ranking junior to the
Series B Preferred Stock, shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds of the
Corporation legally available for the payment of dividends,
quarterly dividends payable in cash on the last day of each fiscal
quarter of the Corporation in each year, or such other dates as the
Board of Directors shall approve (each such date being referred to
herein as a “Quarterly
Dividend Payment Date”), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share
or fraction of a share of the Series B Preferred Stock (the
“Issue Date”),
in an amount per share (rounded to the nearest cent) equal to the
greater of (i) $1.00 or (ii) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or
other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of the
Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of
a share of Series B Preferred Stock. In the event the Corporation
shall at any time after the Issue Date (A) declare and pay any
dividend on the Common Stock payable in shares of Common Stock, or
(B) effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event under
clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
In the event the Corporation shall at any time declare or pay any
dividend on the Series B Preferred Stock payable in shares of
Series B Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series B Preferred Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Series B Preferred Stock) into a greater or lesser number
of shares of Series B Preferred Stock, then in each such case the
amount to which holders of shares of Series B Preferred Stock were
entitled immediately prior to such event under clause (ii) of the
first sentence of this Section 2(a) shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Series B Preferred Stock that were
outstanding immediately prior to such event and the denominator of
which is the number of shares of Series B Preferred Stock
outstanding immediately after such event.
(b) The
Corporation shall declare a dividend or distribution on the Series
B Preferred Stock as provided in paragraph (a) of this Section 2
immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common
Stock).
(c) Dividends
shall begin to accrue and be cumulative, whether or not declared,
on outstanding shares of Series B Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of
such shares, unless the date of issue of such shares is prior to
the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series B Preferred
Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series B
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares
at the time outstanding. The Board of Directors may fix a record
date for the determination of holders of shares of Series B
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more
than sixty (60) calendar days prior to the date fixed for the
payment thereof.
-2-
3. Voting
Rights. The holders of shares of Series B Preferred Stock shall
have the following voting rights:
(a) Subject
to the provision for adjustment hereinafter set forth and except as
otherwise provided in the Articles of Incorporation or required by
law, each share of Series B Preferred Stock shall entitle the
holder thereof to 1,000 votes on all matters upon which the holders
of the Common Stock of the Corporation are entitled to vote. In the
event the Corporation shall at any time after the Issue Date (i)
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or (ii) effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series B Preferred Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
In the event the Corporation shall at any time declare or pay any
dividend on the Series B Preferred Stock payable in shares of
Series B Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series B Preferred Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Series B Preferred Stock) into a greater or lesser number
of shares of Series B Preferred Stock, then in each such case the
number of votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event shall
be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Series B Preferred Stock that
were outstanding immediately prior to such event and the
denominator of which is the number of shares of Series B Preferred
Stock outstanding immediately after such event.
(b) Except
as otherwise provided herein, in the Articles of Incorporation or
in any other Certificate of Designations creating a series of
Preferred Stock or any similar stock, and except as otherwise
required by law, the holders of shares of Series B Preferred Stock
and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) Except
as set forth herein, or as otherwise provided by law, the holders
of Series B Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein)
for taking any corporate action.
4. Certain
Restrictions.
(a) Whenever
quarterly dividends or other dividends or distributions payable on
the Series B Preferred Stock as provided in Section 2 hereof are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B
Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare
or pay dividends, or make any other distributions, on any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;
(ii) declare
or pay dividends, or make any other distributions, on any shares of
stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B Preferred
Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) redeem
or purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock,
provided that, the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series B Preferred Stock or rights, warrants or options to acquire
such junior stock; or
-3-
(iv) redeem
or purchase or otherwise acquire for consideration any shares of
Series B Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative rights and
preferences of the respective Series Bnd classes, shall determine
in good faith will result in fair and equitable treatment among the
respective series or classes. except in accordance with a purchase
offer made in writing or by publication (as determined by the Board
of Directors) to all holders of Series B Junior Participating
Preferred Stock, or to such holders and holders of any such shares
ranking on a parity therewith, upon such terms as the Board of
Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
Series Bnd classes, shall determine will result in fair and
equitable treatment among the respective series or
classes
(b) The
Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock
of the Corporation unless the Corporation could, under paragraph
(a) of this Section 4, purchase or otherwise acquire such shares at
such time and in such manner.
5. Reacquired
Shares. Any shares of Series B Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be
reissued, without designation as to series until such shares are
once more designated as part of a particular series of Preferred
Stock by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth
herein, in the Articles of Incorporation, or in any other
Certificate of Designations creating a series of Preferred Stock or
any similar stock or as otherwise required by law.
6. Liquidation,
Dissolution or Winding Up.
(a) Upon
any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of the Common Stock
or of shares of any other stock of the Corporation ranking junior,
either as to dividends or upon liquidation, dissolution or winding
up, to the Series B Preferred Stock unless, prior thereto, the
holders of shares of Series B Preferred Stock shall have received
$1.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to
the date of such payment, provided that, the holders of shares of
Series B Preferred Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount to
be distributed per share to holders of shares of Common Stock, or
(ii) to the holders of shares of stock ranking on a parity either
as to dividends or upon liquidation, dissolution or winding up with
the Series B Preferred Stock, except distributions made ratably on
the Series B Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding
up. In the event, however, that there are not sufficient assets
available to permit payment in full of the Series B Preferred Stock
liquidation preference and the liquidation preferences of all other
classes and series of stock of the Corporation, if any, that rank
on a parity with the Series B Preferred Stock in respect thereof,
then the assets available for such distribution shall be
distributed ratably to the holders of the Series B Preferred Stock
and the holders of such parity shares in the proportion to their
respective liquidation preferences. In the event the Corporation
shall at any time after the Issue Date (A) declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
(B) effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the aggregate amount to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such
event under the proviso in clause (i) of this Section 6(a) shall be
adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event. In the event the Corporation shall at any time
declare or pay any dividend on the Series B Preferred Stock payable
in shares of Series B Preferred Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Series B
Preferred Stock (by reclassification or otherwise than by payment
of a dividend in shares of Series B Preferred Stock) into a greater
or lesser number of shares of Series B Preferred Stock, then in
each such case the aggregate amount to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such
event under the proviso in clause (1) of paragraph (A) of this
Section 6 shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Series
B Preferred Stock that were outstanding immediately prior to such
event and the denominator of which is the number of shares of
Series B Preferred Stock outstanding immediately after such
event.
-4-
(b) Neither
the merger, consolidation or other business combination of the
Corporation into or with another entity nor the merger,
consolidation or other business combination of any other entity
into or with the Corporation (nor the sale, lease, exchange or
conveyance of all or substantially all of the property, assets or
business of the Corporation) shall be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of
this Section 6.
7. Consolidation,
Merger, etc. Notwithstanding anything to the contrary contained
herein, in case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of
Common Stock are converted into, exchanged for or changed into
other stock or securities, cash and/or any other property (payable
in kind), then in any such case each share of Series B Preferred
Stock shall at the same time be similarly converted into, exchanged
for or changed into an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 1,000 times the
aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is converted or exchanged. In the
event the Corporation shall at any time after the Issue Date (i)
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or (ii) effect a subdivision or combination or
consolidation (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) of the outstanding shares of
Common Stock into a greater or lesser number of shares of Common
Stock, then in each such case the amount set forth in the preceding
sentence with respect to the conversion, exchange or change of
shares of Series B Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event. In the event
the Corporation shall at any time declare or pay any dividend on
the Series B Preferred Stock payable in shares of Series B
Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series B Preferred Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Series B Preferred Stock) into a greater or lesser number
of shares of Series B Preferred Stock, then in each such case the
amount set forth in the first sentence of this Section 7 with
respect to the exchange or change of shares of Series B Preferred
Stock shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Series B
Preferred Stock that were outstanding immediately prior to such
event and the denominator of which is the number of shares of
Series B Preferred Stock outstanding immediately after such
event.
8. No
Redemption. The shares of Series B Preferred Stock shall not be
redeemable from any holder.
9. Rank.
The Series B Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, junior
to all series of any other class of the Preferred Stock issued
either before or after the issuance of the Series B Preferred
Stock, unless the terms of any such series shall provide otherwise,
and shall rank senior to the Common Stock.
10. Amendment.
At such time as any shares of Series B Preferred Stock are
outstanding, if any proposed amendment to the Articles of
Incorporation (including this Certificate of Designation) would
materially alter, change or repeal any of the preferences, powers
or special rights given to the Series B Preferred Stock so as to
affect the Series B Preferred Stock adversely, then the holders of
the Series B Preferred Stock shall be entitled to vote separately
as a class upon such amendment, and the affirmative vote of a
majority of the outstanding shares of the Series B Preferred Stock,
voting separately as a single class, shall be necessary for the
adoption thereof, in addition to such other vote as may be required
by the Act.
11. Fractional
Shares. Series B Preferred Stock may be issued in fractions of a
share that shall entitle the holder, in proportion to such
holder’s fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series B Preferred
Stock.
IN WITNESS WHEREOF,
the undersigned has executed and subscribed this Certificate and
does affirm the foregoing as true this 26th day of February,
2021.
FITLIFE
BRANDS, INC.
By:/s/ Dayton
Judd
Dayton
Judd,
Chief
Executive Officer
-5-