Attached files
Exhibit 3.4
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
CYTODYN, INC
(SERIES B CONVERTIBLE PREFERRED STOCK)
Pursuant to the requirements of Section 7-106-102 of the Colorado
Business Corporation Act, the undersigned Corporation submits the following
Articles of Amendment to Articles of Incorporation.
FIRST: The name of the Corporation is CYTODYN, INC.
SECOND: The Articles of Incorporation of the Corporation are hereby
amended as follows:
"There is hereby established a series of Preferred Stock of
the Corporation designated "Series B Convertible Preferred Stock." The
number of shares of this series of Preferred Stock shall be 400,000
shares. The powers, designations, preferences and relative,
participating, optional or other special rights of the shares of this
series of Preferred Stock and the qualifications, limitations and
restrictions of such preferences and rights shall be as follows:
1. Dividend Provisions.
(a) The holders of record of the outstanding shares
of Series B Convertible Preferred Stock shall be entitled to receive,
out of any assets at the time legally available therefore and when and
as declared by the Board of Directors, dividends at the rate of $.25
per share per annum from the date of issuance of the Series B
Convertible Preferred Stock. Dividends on the Series B Convertible
Preferred Stock shall be cumulative, shall accrue, whether or not
declared and whether or not there are any profits, surplus or other
funds or assets of the Corporation legally available therefore, and, at
the Corporation's option, at the time the shares of Series B
Convertible Preferred Stock are converted into shares of the
Corporation's common stock shall either (i) be paid in cash, or (ii) be
paid with restricted shares of the Corporation's common stock. In the
event the Corporation shall declare a distribution (other than any
distribution described above) payable in securities of other persons,
evidences of indebtedness issued by the Corporation or other persons,
assets (excluding cash dividends) or options or rights to purchase any
such securities or evidences of indebtedness, then, in each such case
the holders of the Series B Convertible Preferred Stock shall be
entitled to a proportionate share of any such distribution as though
the holders of the Series B Convertible Preferred Stock were the
holders of the number of shares of Common Stock of the Corporation into
which their respective shares of Series B Convertible Preferred Stock
are convertible as of the record date fixed for the determination of
the holders of Common Stock of the Corporation entitled to receive such
distribution.
(b) In the event that the Corporation elects to pay
any dividends with shares of the Corporation's common stock, the shares
being issued for the interest will be valued at $.50 per share.
2. Liquidation Preference.
(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, the holder of each share of Series B Convertible Preferred
Stock shall be entitled to receive, out of the assets of the
Corporation available for distribution to its stockholders, before any
payment or distribution shall be made on the Common Stock, an amount
per share equal to $5.00 plus any accrued and unpaid dividends. If the
assets and funds to be distributed among the holders of the Series B
Convertible Preferred Stock shall be insufficient to permit the payment
of the full aforesaid preferential amount to such holders, then the
entire assets and funds of the Corporation legally available for the
distribution shall be distributed among the holders of the Series B
Convertible Preferred Stock in proportion to the aggregate preferential
amount of all shares of Series B Convertible Preferred Stock held by
them.
3. Conversion. The Series B Convertible Preferred Stock may be
converted into shares of the Corporation's Common Stock on the
following terms and conditions (the "Conversion Rights"):
(a) Option to Convert. Commencing as soon as the
Corporation has sufficient authorized and unissued shares of its Common
Stock available for all outstanding shares of Series B Convertible
Preferred Stock to be converted, holders of the Series B Convertible
Preferred Stock shall have the right to convert all or a portion of
their shares into shares of Common Stock at any time or from time to
time upon notice to the Corporation on the terms and conditions set
forth herein.
(b) Mechanics of Conversion. Upon the election of a
holder of the Series B Convertible Preferred Stock to convert shares of
such Preferred Stock, the holder of the shares of Series B Convertible
Preferred Stock which are converted shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation
or any authorized transfer agent for such stock together with a written
statement that he elects to convert his preferred stock to common
stock. The Corporation or the transfer agent shall promptly issue and
deliver at such office to such holder of Series B Convertible Preferred
Stock a certificate or certificates for the number of shares of Common
Stock to which such holder is thereby entitled. The effective date of
such conversion shall be a date not later than 30 days after the date
upon which the holder provides written notice of his election to
convert to the Corporation or transfer agent.
2
(c) Conversion Ratio. Each share of Series B
Convertible Preferred Stock may be converted into ten (10) fully paid
restricted shares of Common Stock (except as adjusted pursuant to
paragraph 3(d) below). In the event that upon conversion of shares of
Series B Convertible Preferred Stock a holder shall be entitled to a
fraction of a share of Common Stock, no fractional share shall be
issued and in lieu thereof the Corporation shall pay to the holder cash
equal to the fair value of such fraction of a share.
(d) Adjustment of Conversion Rate. If the Corporation
shall at any time, or from time to time, after the effective date
hereof effect a reverse stock split of the outstanding Common Stock, or
if the Corporation at any time or from time to time after the effective
date hereof 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 number of shares of Common Stock
issuable upon conversion of the Series B Convertible Preferred Stock
shall be proportionately adjusted 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.
(e) Adjustment for Merger or Reorganization. If at
any time after the issuance date there shall occur any reorganization,
recapitalization, consolidation, merger or other reorganization event
involving the Corporation, then following any such reorganization each
share of Series B Convertible preferred Stock shall thereafter be
convertible, in lieu of the shares of common stock into which it was
convertible prior to such event, into the kind and amount of
securities, cash or other property which a holder of the number of
shares of common stock of the Corporation issuable upon conversion of
one share of Series B Convertible Preferred Stock immediately prior to
such reorganization would have been entitled to receive pursuant to
such transaction.
(f) No Impairment. The Corporation will not, by
amendment of its Articles 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 of the provisions
of this Section 3 and in the taking of all such action as may be
necessary or appropriate in order to protect the Conversion Rights of
the holders of the Series B Convertible Preferred Stock against
impairment.
3
(g) Reservation of Stock Issuable Upon Conversion.
The Corporation shall at all times use its best efforts to reserve and
keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of effecting the conversion of the shares
of Series B Convertible Preferred Stock, such number of its shares of
Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Series B Convertible 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
outstanding shares of Series B Convertible Preferred Stock, the
Corporation will take such corporate action as is necessary to increase
its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
4. Status of Converted or Reacquired Stock. In case any shares
of Series B Convertible Preferred Stock shall be converted pursuant to
Section 3 hereof, the shares so converted shall cease to be a part of
the authorized capital stock of the Corporation.
5. Voting Rights. The Series B Convertible Preferred Stock
does not have any voting rights.
6. Notices. Any notice required to be given to holders of
shares of Series B Convertible Preferred Stock shall be deemed given
upon deposit in the United States mail, postage prepaid, addressed to
such holder of record at his address appearing on the books of the
Corporation, or upon personal delivery of the aforementioned address."
THIRD: Such Amendment was duly adopted by the Board of Directors of the
Corporation on the __ day of September 2009.
4
EXHIBIT A
CYTODYN, INC. CONVERSION NOTICE
Reference is made to the Articles of Amendment describing the terms of
the Series B Convertible Preferred Stock (the "Articles of Amendment"). In
accordance with and pursuant to the Articles of Amendment, the undersigned
hereby elects to convert the number of shares of Series B Convertible Preferred
Stock, no par value (the "Preferred Shares"), of CytoDyn, Inc., a Colorado
corporation (the "Company"), indicated below into shares of Common Stock, no par
value per share (the Common Stock"), of the Company, by tendering the stock
certificates representing the share(s) of Preferred Shares specified below as of
the date specified below.
Date of Conversion: ____________________________
Number of Preferred Shares to be converted: ____________________________
Stock certificate no(s). of Preferred Shares
to be converted: ____________________________
Please confirm the following information:
Conversion Price: ____________________________
Number of shares of Common Stock
to be issued: ____________________________
Please issue the Common Stock into which the Preferred Shares are being
converted in the following name and to the following address:
Issue to (name and address): ____________________________
____________________________
____________________________
____________________________
Dated: ____________________________ By: ________________________
Name: _____________________