Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - AMACORE GROUP, INC. | amacore_8k-062609.htm |
| EX-10.2 - WARRANT TO PURCHASE SHARES - AMACORE GROUP, INC. | amacore_8k-ex1002.htm |
| EX-10.4 - FIRST AMENDMENT TO WARRANT - AMACORE GROUP, INC. | amacore_8k-ex1004.htm |
| EX-10.1 - SECURITIES PURCHASE AGREEMENT - AMACORE GROUP, INC. | amacore_8k-ex1001.htm |
| EX-10.3 - REGISTRATION RIGHTS AGREEMENT - AMACORE GROUP, INC. | amacore_8k-ex1003.htm |
EXHIBIT
3.1
THE
AMACORE GROUP, INC.
Amended
and Restated
Certificate
of Designation
Series
L Convertible Preferred Stock
Pursuant
to Section 151
Of
the
General
Corporation Law of the State of Delaware
The
Amacore Group, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the “Corporation”), DOES HEREBY
CERTIFY that, a a meeting of the Board of Directors on November 13, 2009, the
following resolution was duly adopted by the Board of Directors of the
Corporation pursuant to Section 151 of the General Corporation Law of the State
of Delaware:
RESOLVED, that pursuant to the
authority granted to and vested in the Board in accordance with the provisions
of the Certificate of Incorporation and Bylaws of the Corporation, each as
amended and restated through the date hereof, solely to increase the number of
authorized shares of the Company’s Series L Preferred Stock from Four Hundred
Fifty (450) shares to One Thousand Fifty (1,050) shares, the Board hereby amends
and restates the Corporation’s Certificate of Designation Series L Convertible
Preferred Stock filed on June 26, 2009 to read in its entirety, and hereby
states the designation and number of shares, and fixes the preferences and
relative and other rights, and the qualifications, limitations or restrictions
thereof (in addition to those set forth in the Corporation’s Certificate of
Incorporation), as follows:
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1.
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Designation. This
series shall be designated as Series L Convertible Preferred Stock (the
“Series L Preferred
Stock”), to consist of One Thousand Fifty (1,050) shares, par value
$0.001 per share, with a mandatory conversion date of July 15,
2011.
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2.
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Rank. The
Series L Preferred Stock shall rank (i) prior to all classes of the
Corporation’s common stock; (ii) prior to all other series of the
Corporation’s Preferred Stock outstanding as of the Issuance Date (defined
below); (iii) prior to any class or series of capital stock of the
Corporation hereafter created that does not, by its terms, rank senior to
or pari passu with the Series L Preferred Stock (each security described
in (i) through (iii), a “Junior Security” and
collectively, the “Junior
Securities”); (iv) pari passu with the Series G Convertible
Preferred Stock (“Series
G Preferred Stock”), the Series H Convertible Preferred Stock
(“Series H Preferred
Stock”), the Series I Convertible Preferred Stock (“Series I Preferred
Stock”) and any class or series of capital stock of the Corporation
hereafter created that, by its terms, ranks on parity with the Series L
Preferred Stock (the “Pari Passu Securities”);
and (v) junior to any class or series of capital stock of the Corporation
hereafter created that, by its terms, ranks senior to the Series L
Preferred Stock (collectively, the “Senior Securities”), in
each case as to distribution of assets upon liquidation, dissolution or
winding up of the Corporation, whether voluntary or
involuntary. For purposes of this Certificate of Designation,
“Issuance Date”
means, with respect to any share of the Corporation’s capital stock, the
date such share was originally issued by the Corporation. The
Issue Date shall be deemed to be the date on which the Corporation
initially issues a share regardless of the number of transfers of such
share recorded on the stock records maintained by or for the Corporation
and regardless of the number of certificates which may be issued to
evidence such share.
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3.
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Stated
Value. The stated value of the Series L Preferred Stock
shall be Ten Thousand Dollars ($10,000) per share (the “Stated
Value”).
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4.
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Cumulative Preferred
Dividends. Before any dividends shall be paid or set
aside for payment on any Junior Security of the Corporation, each holder
of the Series L Preferred Stock (each a “Holder” and
collectively, the “Holders”) shall be
entitled to receive dividends payable on the Stated Value of the Series L
Preferred Stock at a rate of 6% per annum, which shall be cumulative,
accrue daily from the Issuance Date and be due and payable on the first
day of each calendar quarter (each a “Dividend Date”). Such
dividends shall accrue whether or not declared, but no dividend shall be
paid unless there are profits, surplus or other funds of the Corporation
legally available for the payment of dividends. The accumulation of unpaid
dividends shall bear interest at a rate of 6% per annum. If a
Dividend Date is not a business day, then the dividend shall be due and
payable on the business day immediately following such Dividend
Date. Dividends shall be payable in cash or shares of the
Corporation’s Class A Common Stock, at market price, at the Holder’s
option.
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5.
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Liquidation
Rights. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or
involuntary (each of which is hereinafter referred to as a “Liquidation Event”),
and before any distribution shall be made to the holders of any shares of
any Junior Security of the Corporation, the holders of shares of Series L
Preferred Stock then outstanding shall be entitled to be paid out of the
assets of the Corporation available for distribution to its stockholders
an amount per share equal to the Stated Value of the Series L Preferred
Stock plus the aggregate amount of accumulated but unpaid dividends on
each share of Series L Preferred Stock. If, upon a Liquidation
Event, the assets of the Corporation, or proceeds thereof, to be
distributed among the holders of the Series L Preferred Stock are
insufficient to permit payment in full to such Holders of the aggregate
amount that they are entitled to be paid by their terms, then the entire
assets, or proceeds thereof, available to be distributed to the
corporation’s stockholders shall be distributed to the holders of the
Series L Preferred Stock ratably in accordance with the respective amounts
that would be payable on such shares if all amounts payable thereon were
paid in full. Prior to the Liquidation Event, the corporation shall
declare for payment all accrued and unpaid dividends with respect to the
Series L Preferred Stock but only to the extent of funds of the
Corporation legally available for the payment of dividends. For
the purpose of this Paragraph 5, a consolidation or merger of the
Corporation with any other corporation, or the sale, transfer or lease of
all or substantially all of its assets, shall not constitute or be deemed
a Liquidation Event.
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6.
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Voting
Rights. Except as otherwise required by law, no holder
of Series L Preferred Stock will be entitled to vote on matters as to
which stockholders generally are entitled to
vote.
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7.
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Conversion
Rights.
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7.1
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Conversion
Price. At any time on or after September 30, 2009 (the “Initial Conversion
Date”), each share of Series L Preferred Stock shall be convertible
at the option of the Holder into that number of shares of Class A Common
Stock of the Corporation equal to (a) the Stated Value of such share of
Series L Preferred Stock divided by (b) a per share price of the Class A
Common Stock of $0.01 per share (the “Conversion
Price”). The Conversion Price is subject to adjustment
as hereinafter provided, at any time or from time to time upon the terms
and in the manner hereinafter set forth in Paragraph
7.3.
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7.2
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Conversion
Procedures.
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(a)
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In
order to convert any share of Series L Preferred Stock into Class A Common
Stock, the holder thereof shall (i) surrender the certificate or
certificates for such shares of Series L Preferred Stock, duly endorsed to
the Corporation or in blank, to the Corporation at its principal office or
at the office of the agency maintained for such purposes, (ii) give
written notice to the Corporation at such office that such holder elects
to convert such shares of Series L Preferred Stock, in the same form as
Exhibit I
and (iii) state in writing therein the name or names in which such
holder wishes the certificate or certificates for shares of Class A Common
Stock to be issued. Each conversion shall be deemed to have
been effected at the close of business on the date on which the
Corporation or such agency shall have received such surrendered Series L
Preferred Stock certificate(s), and the person or persons in whose name or
names any certificate or certificates for shares of Class A Common Stock
shall be issuable upon such conversion shall be deemed to have become the
record holder or holders of the shares represented thereby on such
date. After such Conversion Notice, the Corporation shall issue
or deliver at such office to the holder for whose accounts such shares of
Series L Preferred Stock were so surrendered, or to such holder’s nominee
or nominees, certificates (bearing such ledger(s) as may be required under
applicable securities laws) for the number of full shares of Class A
Common Stock to which such holder shall be entitled. No
fractional shares or scrip representing fractional shares will be issued
upon any conversion, but an adjustment in cash will be made, in respect of
any fraction of a share which would otherwise be issuable upon the
conversion of the Series L Preferred
Stock.
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(b)
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Upon
receipt by the Corporation of a copy of a Conversion Notice, as shown in
Exhibit
I, along with any applicable certificates in accordance with
Section 7.2(a) (to the extent such certificates have been issued), the
Corporation shall (i) as soon as practicable, but in any event within one
(1) Business Day, send, via facsimile, a confirmation of receipt of such
Conversion Notice to such holder and the Corporation’s Transfer Agent,
which confirmation shall constitute an instruction to the Transfer Agent
to process such Conversion Notice in accordance with the terms herein and
(ii) if the Conversion Notice is delivered on or before 8:00 p.m., New
York City Time, then on or before the second (2nd) Business Day following
the date of receipt by the Corporation of such Conversion Notice, or if
the Conversion Notice is delivered after 8:00 p.m., New York City Time,
then on or before the third (3rd) Business Day following the date of
receipt by the Corporation of such Conversion Notice (the “Share Delivery Date”),
(A) issue and deliver to the address as specified in the Conversion
Notice, a certificate, registered in the name of the holder or its
designee, for the number of shares of Common Stock to which the holder
shall be entitled (provided that if such delivery is to be made outside of
New York City then such delivery may be made on the next Business Day), or
(B) provided the Transfer Agent is participating in The Depository Trust
Company (“DTC”)
Fast Automated Securities Transfer Program, upon the request of the
holder, credit such aggregate number of shares of Common Stock to which
the holder shall be entitled to the holder’s or its designee’s balance
account with DTC through its Deposit Withdrawal Agent Commission
system. If the number of Preferred Shares represented by the
Preferred Stock Certificate(s) submitted for conversion is greater than
the number of Preferred Shares being converted, then the Corporation
shall, as soon as practicable and in no event later than three (3)
Business Days after receipt of the Preferred Stock Certificate(s) (the
“Preferred Stock Delivery
Date”) and at its own expense, issue and deliver to the holder a
new Preferred Stock Certificate representing the number of Preferred
Shares not converted.
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7.3
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Adjustment of
Conversion Price. The Conversion Price shall be subject
to adjustment from time to time as
follows:
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(a)
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Adjustment Due to
Dividends, Stock Splits, Etc. If, at any time on or after the
Issuance Date, the number of outstanding shares of Class A Common Stock is
increased by a (i) dividend payable in any kind of shares of capital stock
of the Corporation, (ii) stock split, (iii) combination, (iv)
reclassification or (v) other similar event, the Conversion Price shall be
proportionately reduced by multiplying the Conversion Price by a fraction
of which the numerator shall be the number of outstanding shares of Class
A Common Stock immediately before such event and of which the denominator
shall be the number of outstanding shares of Class A Common Stock
immediately after such event, or if the number of outstanding shares of
Class A Common Stock is decreased by a reverse stock split, combination or
reclassification of shares, or other similar event, the Conversion Price
shall be proportionately increased by multiplying the Conversion Price by
a fraction of which the numerator shall be the number of outstanding
shares of Class A Common Stock immediately before such event and of which
the denominator shall be the number of outstanding shares of Class A
Common Stock immediately after such event. In such event, the Corporation
shall notify the Corporation's Transfer Agent of such change on or before
the effective date thereof.
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(b)
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Adjustment Due to
Merger, Consolidation, Etc. If, at any time after the Issuance
Date, there shall be (i) any reclassification or change of the outstanding
shares of Class A Common Stock, (ii) any consolidation or merger of the
Corporation with any other entity (other than a merger in which the
Corporation is the surviving or continuing entity and its capital stock is
unchanged), (iii) any sale or transfer of all or substantially all of the
assets of the Corporation, (iv) any share exchange or tender offer
pursuant to which all of the outstanding shares of Common Stock are
effectively converted into other securities or property; or (v) any
distribution of the Corporation’s assets to holders of the Class A Common
Stock as a liquidation or partial liquidation dividend or by way of return
of capital (each of (i) - (v) above being a “Corporate Change”), and,
if such Corporate Change is not a Liquidation Event pursuant to the terms
of Paragraph 4, then the Holders shall thereafter have the right to
receive upon conversion, in lieu of the shares of Class A Common Stock
otherwise issuable, such shares of stock, securities and/or other property
as would have been issued or payable in such Corporate Change with respect
to or in exchange for the number of shares of Class A Common Stock which
would have been issuable upon conversion had such Corporate Change not
taken place, and in any such case, appropriate provisions (in form and
substance reasonably satisfactory to the Holders of a majority of the
Series L Preferred Stock then outstanding) shall be made with respect to
the rights and interests of the Holders to the end that the economic value
of the shares of Series L Preferred Stock are in no way diminished by such
Corporate Change and that the provisions hereof (including, without
limitation, in the case of any such consolidation, merger or sale in which
the successor entity or purchasing entity is not the Corporation, an
immediate adjustment of the Conversion Price so that the Conversion Price
immediately after the Corporate Change reflects the same relative value as
compared to the value of the surviving entity’s common stock that existed
immediately prior to such Corporate Change and the value of the Class A
Common Stock immediately prior to such Corporate
Change.
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(c)
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Adjustment Due to
Dilutive Issuances. Except for any Qualified Issuance
(as hereinafter defined), if at any time the Corporation shall offer,
issue or agree to issue any Class A Common Stock or securities convertible
into or exercisable for shares of Class A Common Stock (or modify any of
the foregoing which may be outstanding at any time prior to the Issuance
Date) to any person or entity at a price per share or conversion or
exercise price per share which shall be less than the Conversion Price
then in effect, then, for each such occasion, as to each share of Series L
Preferred Stock, without the consent of the Holder, the Conversion Price
shall be adjusted to equal such other lower price per share, and, as to
shares of Class A Common Stock, if any, that were previously issued upon
conversion of shares of the Series L Preferred Stock, the Corporation
shall issue additional shares of Class A Common Stock to the Holder so
that the average per share purchase price of the shares of Class A Common
Stock issued to the Holder upon the conversion of all shares of Series L
Preferred Stock is equal to such other lower price per
share. For purposes of this Section 7.3(c) “Qualified Issuance”
shall mean (x) the grant, issuance or exercise of any convertible
securities pursuant to a qualified or non-qualified stock option plan of
the Corporation or any other bona fide employee benefit plan or incentive
arrangement, adopted or approved by the Board and approved by the
Corporation's shareholders, as may be amended from time to time, (y) the
grant, issuance or exercise of any convertible securities in connection
with the hire or retention of any officer, director or key employee of the
Corporation, provided such grant is approved by the Board, or (z) the
issuance of any shares of Class A Common Stock pursuant to the grant or
exercise of convertible securities outstanding as of the date hereof
(exclusive of any subsequent amendments
thereto).
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(d)
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Other
Adjustments. If the Corporation takes any action
affecting the Class A Common Stock after the date hereof that would be
covered by this Paragraph 7.3, but for the manner in which such action is
taken or structured, and such action would in any way diminish the value
of the Series L Preferred Stock, then the Conversion Price shall be
adjusted in such manner as the Board shall in good faith determine to be
equitable under the circumstances.
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7.4
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Written Instrument as
to Adjustments. Whenever the Conversion Price is
adjusted as herein provided, an officer of the Corporation shall compute
the adjusted Conversion Price in accordance with the foregoing provisions
and shall prepare a written instrument setting forth such adjusted
Conversion Price and showing in detail the facts upon which such
adjustment is based, and a copy of such written instrument shall forthwith
be mailed to each holder of record of the Series L Preferred Stock, and
made available for inspection by the stockholders of the
Corporation.
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7.5
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Reservation of Class A
Common Stock. From and after the Initial Conversion
Date, the Corporation shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Class A Common
Stock, for the purpose of effecting the conversion of the shares of Series
L Preferred Stock, the full number of shares of Class A Common Stock then
deliverable upon the conversion of all shares of Series L Preferred Stock
then outstanding, and such shares shall be listed, subject to notice of
issuance, on any stock exchange(s) on which outstanding shares of
Class A Common Stock may then be
listed.
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7.6
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Payment of
Taxes. The Corporation will pay any and all taxes that
may be payable in respect of the issuance or delivery of shares of Class A
Common Stock on conversion of shares of Series L Preferred Stock pursuant
hereto. The Corporation shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of Class A Common Stock in a name other than
that in which the shares of Series L Preferred Stock so converted were
registered, and no such issue or delivery shall be made unless and until
the person requesting such issue has paid to the Corporation the amount of
any such tax, or has established, to the satisfaction of the Corporation,
that such tax has been paid or is not
payable.
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7.7
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No
Impairment. The Corporation will not, by amendment of
its Certificate 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 Paragraphs 7.1 through 7.6 and in
the taking of all such actions as may be necessary or appropriate in order
to protect the conversion rights of the Holders against
impairment.
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8.
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Mandatory
Conversion. If (a) any share of Series L Preferred Stock
remains outstanding on July 15, 2011, (the “Maturity Date”) and (b)
there is at the Maturity Date, and has been for the period of 90 days
preceding such Maturity Date, an effective registration statement covering
the resale of all of the Class A Common Stock underlying the Series L
Preferred Stock by the Holders (a “Registration
Statement”), then the Corporation shall automatically convert each
such share at the Conversion Price as of the Maturity Date without the
Holder of such share being required to give a Conversion Notice on such
Maturity Date. If a Registration Statement is not effective on
the Maturity Date and has not been effective for at least a period of 90
days preceding the Maturity Date, the Series L Preferred Stock shall not
be so converted but shall remain outstanding until such time Holder, in
its sole discretion, chooses to convert the Series L Preferred Stock by
delivering a Conversion Notice to the Corporation. The
conversion of Series L Preferred Stock pursuant to the foregoing sentence
shall be effected at the Conversion Price as of the date of the Conversion
Notice and shall be otherwise made pursuant to and in accordance with the
procedures specified in Section 7
hereof.
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9.
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Required Holder
Approvals. So long as any shares of Series L Preferred
Stock are outstanding, the Corporation shall not, without first obtaining
the approval (by vote or written consent) of the Holders of a majority of
the then outstanding shares of Series L Preferred Stock: (a) amend the
rights, preferences or privileges of the Series L Preferred Stock set
forth in this Certificate of Designation, (b), amend or waive any
provision of its Certificate of Incorporation in a manner that would alter
the rights, preferences or privileges of the Series L Preferred Stock, (c)
create any Senior Securities, or (d) enter into any agreement with respect
to the foregoing clauses (a) through
(c).
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10.
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Notice of Corporate
Events. If the Corporation (i) declares a dividend or
any other distribution of cash, securities or other property in respect of
its Class A Common Stock, including without limitation any granting of
rights or warrants to subscribe for or purchase any capital stock of the
Corporation, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any transaction or
(iii) authorizes the voluntary dissolution, liquidation or winding up of
the affairs of the Corporation, then the Corporation shall deliver to the
Holders a notice describing the material terms and conditions of such
transaction, at least 10 calendar days prior to the applicable record or
effective date on which Common Stock would need to be owned in order to
participate in or vote with respect to such transaction, and the
Corporation will take all steps reasonably necessary in order to insure
that the Holder is given the practical opportunity to convert its Series L
Preferred Stock prior to such time so as to participate in or vote with
respect to such transaction.
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11.
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Exclusion of Other
Rights. Except as may otherwise be required by law, the
shares of Series L Preferred Stock shall not have any preferences or
relative, participating, optional or other special rights other than those
specifically set forth in this resolution and in the
Certificate of Incorporation, as
amended.
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12.
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Status of Series L
Preferred Stock Reacquired. Shares of Series L Preferred
Stock, which have been issued and reacquired in any manner shall (upon
compliance with applicable provisions of the laws of the State of
Delaware), be deemed to be canceled and have the status of authorized and
unissued shares of the class of Preferred Stock issuable in series
undesignated as to series and may be redesignated and
reissued.
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13.
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Severability of
Provisions. If any right, preference or limitation of
the Series L Preferred Stock set forth in this resolution 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 in
this resolution 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.
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14.
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Headings of
Subdivisions. 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.
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IN
WITNESS WHEREOF, the Corporation has caused its corporate seal to be affixed and
this certificate to be signed by Jay Shafer, its Chief Executive Officer, and
attested to by Jason Post, its Secretary, this 13th day
of November, 2009.
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/s/ Jay
Shafer
Jay
Shafer
Chief
Executive Officer
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[CORPORATE
SEAL]
ATTEST:
/s/ Jason
Post
Jason
Post
Secretary
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EXHIBIT
I
NOTICE
OF CONVERSION
(To be
Executed by the Registered Holder
in order
to Convert the Series L Preferred Stock)
The
undersigned hereby elects to convert ____________ shares of Series L Preferred
Stock (the “Conversion”), represented by
stock certificate No(s). ___________ (the “Preferred Stock
Certificates”), into shares of Class A Common Stock (“Class A Common Stock”) of The
Amacore Group, Inc. (the “Corporation”) according to the
conditions of the Certificate of Designation of the Series L Convertible
Preferred Stock (the “Certificate of Designation”),
as of the date written below. If securities are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. No fee will be charged to the holder for any
conversion, except for transfer taxes, if any. A copy of each Preferred Stock
Certificate is attached hereto (or evidence of loss, theft or destruction
thereof).
[The
Corporation shall electronically transmit the Common Stock issuable pursuant to
this Notice of Conversion to the account of the undersigned or its nominee
(which is _________________) with DTC through its Deposit Withdrawal Agent
Commission System (“DTC
Transfer”).]
The
undersigned acknowledges that all offers and sales by the undersigned of the
securities issuable to the undersigned upon conversion of the Series L Preferred
Stock may only be made pursuant to registration of the Common Stock under the
Securities Act of 1933, as amended (the “Act”), or pursuant to an
exemption from registration under the Act.
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[In
lieu of receiving the shares of Common Stock issuable pursuant to this
Notice of Conversion by way of DTC Transfer, the undersigned hereby
requests that the Corporation issue and deliver to the undersigned
physical certificates representing such shares of Common
Stock.]
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Date of
Conversion: ___________________________
Conversion
Price:______________________________
Number of
Shares of Common
Stock to
be Issued:____________________
[Holder]
By:________________________________
Name:
Title:
Address: _____________________________
_____________________________
_____________________________
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