Attached files
| file | filename |
|---|---|
| S-1 - SMG Industries Inc. | v179920_s-1.htm |
| EX-4.6 - SMG Industries Inc. | v179920_ex4-6.htm |
| EX-3.2 - SMG Industries Inc. | v179920_ex3-2.htm |
| EX-3.5 - SMG Industries Inc. | v179920_ex3-5.htm |
| EX-3.1 - SMG Industries Inc. | v179920_ex3-1.htm |
| EX-14.1 - SMG Industries Inc. | v179920_ex14-1.htm |
| EX-99.2 - SMG Industries Inc. | v179920_ex99-2.htm |
| EX-10.1 - SMG Industries Inc. | v179920_ex10-1.htm |
| EX-23.1 - SMG Industries Inc. | v179920_ex23-1.htm |
| EX-99.1 - SMG Industries Inc. | v179920_ex99-1.htm |
EXHIBIT
3.3
CERTIFICATE
OF AMENDMENT
OF
THE
CERTIFICATE
OF INCORPORATION
OF
SMG
INDIUM RESOURCES, LTD.
SMG Indium Resources, Ltd., a
corporation organized and existing under the General Corporation Law (“GCL”) of
the State of Delaware, DOES HEREBY CERTIFY:
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1.
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The
name of the corporation is (hereinafter called the “Corporation”) is SMG
Indium Resources, Ltd.
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2.
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The
certificate of incorporation of the Corporation is hereby amended by
deleting Article FOURTH thereof and by substituting in lieu of said
Article the following new Article:
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FOURTH: The
total number of shares of the capital stock which the Corporation shall have
authority to issue is Eight Million (8,000,000), of which Two Million
(2,000,000) shares shall be Class A Common Stock, par value $.001 per share (the
“Class A Common Stock”), and Five Million (5,000,000) shares shall be Common
Stock, par value $.001 per share (the “Common Stock”), and One Million
(1,000,000) shares shall be Preferred Stock, par value $.001 per share (the
“Preferred Stock”). The number of authorized shares of any class or
classes of stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the voting power of the stock of the Corporation entitled to
vote.
The Board of Directors is expressly
granted authority to issue shares of the Preferred Stock, in one or more series,
and to fix for each such series such voting powers, full or limited, and such
designations, preferences and relative, participating, optional or other special
rights and such qualifications, limitations or restrictions thereof as shall be
stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such series (a “Preferred Stock
Designation”) and as may be permitted by the GCL, provided without approval of a
majority of the voting power to he Class A Common Stock, voting as a separate
class, the Board of Directors shall not be authorized to issue, redeem or retire
any shares of Preferred Stock, for so long as any Class A Common Stock is
outstanding. The number of authorized shares of Preferred Stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of all of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, without a separate vote of the holders of the Preferred Stock, or
any series thereof, unless a vote of any such holders is required pursuant to
any Preferred Stock Designation.
A
statement of the designations of Class A Common Stock and Common Stock and the
powers, preferences and rights, and qualifications, limitations or restrictions
thereof is as follows:
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A.
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Class A Common
Stock.
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(1) Dividends. The
holders of the Class A Common Stock shall be entitled to receive, share for
share with the holders of the Common Stock, such dividends, if and when declared
from time to time by the Board of Directors. In the event that such
dividend is paid in the form of shares of the Corporation, the holders of Class
A Common Stock shall receive Class A Common Stock.
(2) Liquidation. In
the event of the voluntary or involuntary liquidation, dissolution, distribution
of assets or winding-up of the Corporation, all the assets of the Corporation of
whatever kind available for distribution shall be distributed as
follows:
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(A)
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First,
to the Preferred Stock in accordance with such designations, if
any;
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(B)
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Second,
to the Class A Common Stock holders up to an amount equal to such Class A
Common Stock holders pro rata portion of their initial investment in the
Class A Common Stock;
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(C)
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Third,
to the Manager up to $265,000; and
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(D)
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Fourth,
the remainder of the assets shall be distributed as
follows:
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a.
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20%
to the Manager and
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b.
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80%
to the Class A Common Stock
holders.
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(3) Voting. Holders
of Class A Common Stock shall be entitled to one vote for each share of Class A
Common Stock held as of the applicable date on any matter that is submitted to a
vote or for the consent of stockholders of the Corporation. Except as
otherwise provided by the GCL or in any Preferred Stock Designation, the holders
of Class A Common Stock, together with the holders of the Common Stock shall
exclusively possess all voting power and shall at all times vote on all matters
(including, without limitation, the election of directors).
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(4)
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Automatic Conversion
of Class A Common Stock.
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a.
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Triggering
Events. Upon the completion of an initial public
offering of Corporation’s securities, pursuant to which the Corporation
files a registration statement with the Securities and Exchange Commission
and raises a minimum amount of $5,000,000 of gross proceeds in a public
offering (the “IPO”) and thereupon becomes subject to the periodic and
other reporting obligations of the SEC (the “Mandatory Conversion Time”),
(a) all outstanding shares of Class A Common Stock shall automatically be
converted into shares of Common Stock pursuant to the IPO Conversion Ratio
in A(4)(b), and (b) such Class A Common Stock may not be reissued by the
Corporation.
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b.
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IPO Conversion
Ratio. The Class A Common Stock are subject to an
automatic conversion upon the closing of an IPO. Upon the
closing of an IPO, the Class A Common Stock will be automatically
converted into shares of Common Stock with the additional terms of
adjustment as described below.
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For
purposes of the IPO Conversion Ratio, it is assumed that (i) the Private
Placement unit purchase price equals the IPO unit purchase price, (ii) the
entire purchase price paid for Private Placement units were allocated toward the
purchase of the Class A Common Stock and (iii) the entire purchase price to be
paid for IPO units will be allocated toward the purchase of Common
Stock.
The IPO
Conversion Ratio shall be determined based on the following
formula:
A + ((A x
B) + (A x C)) = D
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A.
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The
number of shares of Class A Common Stock to be converted.**
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B.
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1.
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Ten
percent (10%) if the IPO is completed on or prior to November 24,
2010.
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2.
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Twenty
percent (20%) if the IPO is completed after November 24, 2010 but on or
prior to November 24, 2011.
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C.
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The
Conversion Ratio shall also be adjusted for increases or decreases in the
NMV of the Corporation from the time of the issuance of the Class A Common
Stock, upon applying the proceeds from the Private Placement to the
acquisition of indium stockpiled (the “Further Adjustment”). The Further
Adjustment is calculated as
follows:
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Total
“Further Adjustment” Shares to be issued:
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NMV
of the Corporation immediately
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Minus
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NMV
of the Corporation after the
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receding
the IPO Closing*
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application
of the Private Placement
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gross
proceeds from the sale of Class
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A
Common Stock
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$5.00 or
the IPO Unit Price
* The
average indium price used to determine the NMV shall be based on the mid-point
of the low and high monthly average prices as published by the Metal Bulletin
under the category “Indium Ingots MB free market monthly average in warehouse $
per Kg” for the three (3) month period immediately preceding the Closing date of
the IPO
Calculation
of “Adjustment Ratio per Private Placement Share”:
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Total Further Adjustment Shares to be Issued
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Equals
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Adjustment Ratio Per Private
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Total Class A Common Shares Outstanding
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Placement Share
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D.
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The
shares of Common Stock that the holders of the Class A Common Stock will
receive upon conversion in an IPO.
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** In the
event the unit price of the IPO is not equal to the unit price of the PPM, the
corresponding proportionate adjustment will be made to A to reflect the
appropriate difference.
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c.
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Procedural
Requirements. At the Mandatory Conversion Time, each
holder of shares of the Class A Stock shall surrender his, her or its
certificate or certificates for all such Class A shares as described in
(b) above (or, if such holder alleges that such certificate has been lost,
stolen or destroyed, a lost certificate affidavit and agreement reasonably
acceptable to the Corporation to indemnify the Corporation against any
claim that may be made against the Corporation on account of the alleged
loss, theft or destruction of such certificate) to the Corporation at the
place designated in such notice. If so required by the
Corporation, duly executed by the registered holder of by his, her or its
attorney duly authorized in writing. All rights with respect to
the Class A Stock converted pursuant to Section 4(a) of this Article
Fourth will terminate at the Mandatory Conversion Time (notwithstanding
the failure of the holder or holders thereof to surrender the certificates
at or prior to such time). The Corporation shall, as soon as
practicable after the Mandatory Conversion Time, issue and deliver to such
holder of Class A Stock, or to his, her or its nominees, a certificate or
certificates for the number of full shares of Common Stock issuable upon
such conversion in accordance with the provisions hereof. Such
converted Class A Stock shall be retired and cancelled and may not be
reissued as shares of such series, and the Corporation may thereafter take
such appropriate action (without the need for stockholder action) as may
be necessary to reduce the authorized number of Class A Stock
accordingly.
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d.
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Redeemed or Otherwise
Acquired Shares. Any shares of Class A Stock that are
redeemed or otherwise acquired by the Corporation shall be automatically
and immediately cancelled and retired and shall not be reissued, sold or
transferred. Neither the Corporation nor any of its
subsidiaries may exercise any voting or other rights granted to the
holders of Class A Stock following
redemption.
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e.
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Notices. Any
notice required or permitted by the provisions of this Article Fourth to
be given to the holder of shares of Class A Stock shall be mailed, postage
prepaid, to the post office address last shown on the records of the
Corporation, or given by electronic communication in compliance with the
provisions of the GCL, and shall be deemed sent upon such mailing or
electronic transmission.
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B.
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Common
Stock. Subject to the powers, preferences and rights,
and qualifications, limitations or restrictions thereof of the Class A
Common Stock in Article Fourth (A), the Common Stock shall have the
following powers, preferences and rights, and qualifications, limitation
or restrictions:
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(1) Dividends. The
holders of the Common Stock shall be entitled to receive, share for share with
the holders of the Class A Common Stock, such dividends, if and when declared
from time to time by the Board of Directors. In the event that such
dividend is paid in the form of shares of the Corporation, the holders of Common
Stock shall receive Common Stock.
(2) Liquidation.
A. In
the event of the voluntary or involuntary liquidation, dissolution, distribution
of assets or winding-up of the Corporation, and the Corporation did not
consummate an IPO and the Class A Common Stock was not automatically converted
into Common Stock, then the Common Stock holders have no right to receive any
assets of the Corporation.
B. In
the event of the voluntary or involuntary liquidation, dissolution, distribution
of assets or winding-up of the Corporation, and the Corporation consummated an
IPO and the Class A Common Stock were automatically converted into Common Stock,
the holders of the Common Stock shall be entitled to receive all the assets of
the Corporation of whatever kind available for distribution to stockholders, pro
rata based on the number of shares held by each such Common Stock holder, after
the rights of the holders of the Preferred Stock, if any, have been
satisfied.
(3) Voting. Holders
of Common Stock shall be entitled to one vote for each share of Common Stock
held as of the applicable date on any matter that is submitted to a vote or for
the consent of stockholders of the Corporation. Except as otherwise
provided by the GCL or in any Preferred Stock Designation, the holders of Common
Stock, together with the holders of the Class A Common Stock shall exclusively
possess all voting power and shall at all times vote on all matters (including,
without limitation, the election of directors.)
C. Other Matters Affecting
Stockholders of Common Stock.
In no
event shall any stock dividends or stock splits or combinations of stock be
declared or made on Class A Common Stock or Common Stock unless the shares of
Class A Common Stock and Common Stock at the time outstanding are treated
equally and identically, except that such dividends or stock splits or
combinations shall be made in respect of shares of Class A Common Stock and
Common Stock in the form of shares of Class A Common Stock and Common Stock,
respectively.
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3.
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The
certificate of incorporation of the Corporation is hereby amended by
deleting Article FIFTH thereof and by substituting in lieu of said Article
the following new Article:
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FIFTH:
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The
Corporation’s existence shall terminate on November 24, 2010 (the
“Corporation Termination Date”). This provision may be amended
by a vote of the stockholders in accordance with Sections 228 and 242 of
the General Corporation Law of the State of
Delaware.
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4.
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The
amendment of the certificate of incorporation herein certified has been
duly adopted and written consent has been given in accordance with the
provisions of Sections 228 and 242 of the General Corporation Law of the
State of Delaware
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IN
WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by
Ailon Z. Grushkin, its President, on November 23, 2009.
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SMG
Indium Resources, Ltd.
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By:
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/s/ Ailon Z. Grushkin
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Ailon
Z. Grushkin,
President
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