Attached files
| file | filename |
|---|---|
| 8-K - EPIC ENERGY RESOURCES, INC. | v181123_8k.htm |
| EX-10.5 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-5.htm |
| EX-10.9 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-9.htm |
| EX-10.7 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-7.htm |
| EX-10.6 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-6.htm |
| EX-10.1 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-1.htm |
| EX-10.8 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-8.htm |
| EX-10.2 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-2.htm |
| EX-99.1 - EPIC ENERGY RESOURCES, INC. | v181123_ex99-1.htm |
| EX-10.4 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-4.htm |
| EX-10.3 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-3.htm |
| EX-10.10 - EPIC ENERGY RESOURCES, INC. | v181123_ex10-10.htm |
ARTICLES
OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION, AS AMENDED,
OF EPIC
ENERGY RESOURCES, INC.
SETTING
FORTH THE PREFERENCES, RIGHTS AND RESTRICTIONS
OF
ITS
SERIES A
CONVERTIBLE PREFERRED STOCK
Epic
Energy Resources, Inc., a corporation organized and existing under the Business
Corporation Act of the State of Colorado (the “BCA”), hereby
certifies, pursuant to Section 108-202 of the BCA, that the following
resolutions were duly adopted by its Board of Directors (the “Board”) on April 8,
2010:
WHEREAS,
the Company’s Articles of Incorporation, as amended, including any amendment or
supplement thereto (including any Articles of Amendment) (the “Articles of
Incorporation”), authorizes 10,000,000 shares of preferred stock, no par
value (the “Preferred
Stock”), issuable from time to time in one or more series;
and
WHEREAS,
the Articles of Incorporation authorizes the Board, in establishing any series
of Preferred Stock, to give the series a designation, to fix the number of
shares in such series, and the preferences, rights and restrictions of the
series;
NOW,
THEREFORE, BE IT RESOLVED, that a series of Preferred Stock with the powers,
designations, preferences, rights, qualifications, limitations and restrictions
as provided herein is hereby authorized and established as follows:
Section
1. Number;
Designation; Rank.
(a)
This series of convertible Preferred Stock is designated as the “Series A
Convertible Preferred Stock” (the “Series A Preferred
Stock”). The number of shares constituting the Series A
Preferred Stock is 10,000,000 shares, no par value.
(b)
The Series A Preferred Stock ranks, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of the Company,:
(i) senior
in preference and priority to the common stock of the Company, no par value (the
“Common
Stock”), and each other class or series of Equity Security (as defined in
Section 7) of the Company the terms of which do not expressly provide that it
ranks senior in preference or priority to or on parity, without preference or
priority, with the Series A Preferred Stock with respect to rights upon
liquidation, dissolution or winding up of the Company (the “Junior
Securities”);
(ii) on
parity, without preference and priority, with each class or series of Equity
Security of the Company, the terms of which expressly provide that it will rank
on parity, without preference or priority, with the Series A Preferred Stock
with respect to rights upon liquidation, dissolution or winding up of the
Company (collectively, the “Parity Securities”);
and
(iii) junior
in preference and priority to each class or series of Equity Security of the
Company the terms of which expressly provide that it will rank senior in
preference or priority to the Series A Preferred Stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the
Company.
Section
2. Dividends. Holders
of issued and outstanding Series A Preferred Stock will not be entitled to any
dividends.
Section
3. Liquidation
Preference.
(a)
Upon any voluntary or involuntary liquidation, dissolution or winding up of the
Company, each share of Series A Preferred Stock entitles the holder thereof to
receive and to be paid out of the assets of the Company available for
distribution, before any distribution or payment may be made to a holder of any
Junior Securities, an amount in cash per share equal to the greater of (i) $1.00
per share, as adjusted for any stock dividends, splits, combinations and similar
events or (ii) an amount equal to the amount the holders of Series A Preferred
Stock would have received upon liquidation, dissolution or winding up of the
Company had such holders converted their shares of Series A Preferred Stock into
shares of Common Stock (such greater amount, the “Liquidation
Preference”).
(b)
If upon any such liquidation, dissolution or winding up of the Company, the
assets of the Company available for distribution is insufficient to pay the
holders of Series A Preferred Stock the full Liquidation Preference and the
holders of all Parity Securities the full liquidation preferences to which they
are entitled, the holders of Series A Preferred Stock and such Parity Securities
will share ratably in any such distribution of the assets of the Company in
proportion to the full respective amounts to which they are
entitled.
(c)
After payment to the holders of Series A Preferred Stock of the full Liquidation
Preference to which they are entitled, the holders of Series A Preferred Stock
as such will have no right or claim to any of the assets of the
Company.
(d)
The value of any property not consisting of cash that is distributed by the
Company to the holders of the Series A Preferred Stock will equal the Fair
Market Value (as defined in Section 7) thereof.
Section 4. Voting
Rights.
(a)
The holders of Series A Preferred Stock are not entitled to vote on Company
matters, except as otherwise provided herein or by the BCA.
(b)
So long as at least 1,000,000 shares of Series A Preferred Stock are
outstanding, as adjusted for stock dividends, splits, combinations and similar
events, and except as otherwise provided by the BCA, the Company may not take
any of the following actions without the prior vote or written consent of
holders representing at least a majority of the then outstanding shares of
Series A Preferred Stock, voting together as a separate class:
(i) any
increase (including by way of merger, consolidation or otherwise) in the total
number of authorized or issued shares of Series A Preferred Stock;
(ii) any
amendment, alteration or change to the powers, designations, preferences,
rights, qualifications, limitations or restrictions of the Series A Preferred
Stock in any manner (including by way of merger, consolidation or otherwise)
that adversely affects the holders of Series A Preferred Stock;
(iii) any
amendment, repeal or alteration of any provision of the Articles of
Incorporation or the Bylaws of the Company in any manner (including by way of
merger, consolidation or otherwise) that adversely affects the holders of Series
A Preferred Stock;
(iv) the
liquidation, dissolution or winding up of the Company or any voluntary
bankruptcy filing; or
(v)
any contract or other arrangement or to do any of the
foregoing, except if such contract or arrangement expressly provides that the
undertaking of any of the foregoing is subject to the prior approval of the
holders of Series A Preferred Stock.
Section
5. Conversion.
Each
share of Series A Preferred Stock is convertible into shares of Common Stock as
provided in this Section 5.
(a)
Optional
Conversion. Upon the Company obtaining stockholder approval to
increase the authorized shares of Common Stock sufficiently to permit the
conversion of all issued and outstanding shares of Series A Preferred Stock at
the Conversion Rate (defined below), each holder of Series A Preferred Stock is
entitled to convert, at any time and from time to time at the option and
election of such holder, any or all shares of outstanding Series A Preferred
Stock held by such holder into a number of duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock equal to the amount
determined by multiplying (i) each share of Series A Preferred Stock to be
converted by such holder by (ii) the Conversion Rate in effect at the time of
conversion. The “Conversion Rate”
initially means fourteen (14), as adjusted from time to time as provided in
Section 5(d).
(b)
Fractional
Shares. No fractional shares of Common Stock will be issued
upon conversion of the Series A Preferred Stock. In lieu of
fractional shares, the Company shall pay cash equal to such fractional amount
multiplied by the Fair Market Value per share of Common Stock as of the
Conversion Date (as defined below). If more than one share of Series
A Preferred Stock is being converted at one time by the same holder, then the
number of full shares issuable upon conversion will be calculated on the basis
of the aggregate number of shares of Series A Preferred Stock converted by such
holder at such time.
(c)
Mechanics of
Conversion.
(i) In
order to convert shares of Series A Preferred Stock into shares of Common Stock,
the holder must surrender the certificates representing such shares of Series A
Preferred Stock at the office of the Company’s transfer agent (or at the
principal office of the Company, if the Company serves as its own transfer
agent), together with written notice that such holder elects to convert all or
such number of shares represented by such certificates as specified
therein. If reasonably required by the Company, certificates
surrendered for conversion must be endorsed or accompanied by a written
instrument of transfer, in a form reasonably satisfactory to the Company, duly
executed by the registered holder or his, her or its attorney-in-fact duly
authorized in writing. The date of receipt of such certificates,
together with such notice, by the transfer agent or the Company will be the date
of conversion (the “Conversion
Date”). As soon as practicable after the Conversion Date, the
Company shall promptly issue and deliver to such holder a certificate for the
number of shares of Common Stock to which such holder is entitled, together with
a check or cash for payment of fractional shares, if any. Such
conversion will be deemed to have been made on the Conversion Date, and the
person (as defined in Section 5(c)(i)) entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder of such shares of Common Stock on such Conversion
Date. In case fewer than all the shares represented by any such
certificate are to be converted, a new certificate shall be issued representing
the unconverted shares without cost to the holder thereof, except for any
documentary, stamp or similar issue or transfer tax due because any certificate
for shares of Common Stock or Series A Preferred Stock are issued in a name
other than the name of the converting holder. The Company shall pay
any documentary, stamp or similar issue or transfer tax due on the issue of
Common Stock upon conversion or due upon the issuance of a new certificate for
any shares of Series A Preferred Stock not converted other than any such tax due
because shares of Common Stock or a certificate for shares of Series A Preferred
Stock are issued in a name other than the name of the converting
holder.
(ii) Once
the Company obtains stockholder approval to increase the authorized shares of
Common Stock sufficiently to permit the conversion of all issued and outstanding
shares of Series A Preferred Stock at the Conversion Rate, the Company shall at
all times thereafter reserve and keep available, free from any preemptive
rights, out of its authorized but unissued shares of Common Stock for the
purpose of effecting the conversion of the Series A Preferred Stock, the full
number of shares of Common Stock deliverable upon the conversion of all
outstanding Series A Preferred Stock (assuming for the purposes of this
calculation that all outstanding shares of Series A Preferred Stock are held by
one holder), and the Company shall take all actions to amend its Articles of
Incorporation to increase the authorized amount of Common Stock if necessary
therefor. The Company shall comply with all federal and state laws,
rules and regulations and applicable rules and regulations of any securities
exchange or automated quotation system on which the Common Stock is then listed
or quoted.
(iii) In
the event that a share of Series A Preferred Stock is not converted due to a
default by the Company or because the Company is otherwise unable to issue the
requisite shares of Common Stock, such share of Series A Preferred Stock will
remain outstanding and will be entitled to all of the rights as provided
herein. Any shares of Series A Preferred Stock that have been
converted will, after such conversion, be deemed cancelled and retired and have
the status of authorized but unissued Preferred Stock, without designation as to
series until such shares are once more designated as part of a particular series
by the Board.
(iv) If
the conversion is in connection with any public offering or other sale, the
conversion may, at the option of any holder tendering any share of Series A
Preferred Stock for conversion, be conditioned upon the closing of the sale of
shares of Series A Preferred Stock with the underwriter or other purchaser in
such sale, in which event such conversion of such shares of Series A Preferred
Stock shall not be deemed to have occurred until immediately prior to the
closing of such sale.
(d)
Adjustments to
Conversion Rate. If the outstanding shares of Common Stock are
split into a greater number of shares, the Conversion Rate then in effect
immediately before such split will be proportionately decreased. If
the outstanding shares of Common Stock are combined into a smaller number of
shares, the Conversion Rate then in effect immediately before such combination
will be proportionately increased. These adjustments will be
effective at the close of business on the date the split or combination becomes
effective.
(e) Effect of Reclassification,
Merger or Sale. If any of the following events occur, namely
(x) any reclassification of or any other change to the outstanding shares of
Common Stock (other than a stock split or combination to which Section 5(d)
applies), (y) any merger, consolidation or other combination of the Company with
another person as a result of which all holders of Common Stock become entitled
to receive capital stock, other securities or other property (including but not
limited to cash and evidences of indebtedness) with respect to or in exchange
for such Common Stock, or (z) any sale, conveyance or other transfer of all or
substantially all of the properties of the Company to any other person as a
result of which all holders of Common Stock become entitled to receive capital
stock, other securities or other property (including but not limited to cash and
evidences of indebtedness) with respect to or in exchange for such Common Stock,
then shares of Series A Preferred Stock will be convertible into the kind and
amount of shares of capital stock, other securities or other property (including
but not limited to cash and evidences of indebtedness) receivable upon such
reclassification, change, merger, consolidation, combination, sale, conveyance
or transfer by a holder of a number of shares of Common Stock issuable upon
conversion of such shares of Series A Preferred Stock (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock available to
convert all such Series A Preferred Stock) immediately prior to such
reclassification, change, merger, consolidation, combination, sale, conveyance
or transfer.
This
Section 5(e) will similarly apply to successive reclassifications, changes,
mergers, consolidations, combinations, sales, conveyances and
transfers. If this Section 5(e) applies to any event or occurrence,
Section 5(d) will not apply.
(f)
Notice of Record
Date. In the event of:
(i) any
stock split or combination of the outstanding shares of Common
Stock;
(ii) any
reclassification, change, merger, consolidation, combination, sale, conveyance
or transfer to which Section 5(e) applies; or
(iii) the
dissolution, liquidation or winding up of the Company;
then the
Company shall file with its corporate records and mail to the holders of the
Series A Preferred Stock at their last addresses as shown on the records of the
Company, at least 10 days prior to the record date specified in (A) below or 20
days prior to the date specified in (B) below, a notice stating:
(A) the
record date of such stock split or combination, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such stock split or combination are to be determined, or
(B) the
date on which such reclassification, change, merger, consolidation, combination,
sale, conveyance, transfer, liquidation, dissolution or winding up is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record will be entitled to exchange their shares of Common Stock
for the capital stock, other securities or other property (including but not
limited to cash and evidences of indebtedness) deliverable upon such
reclassification, change, merger, consolidation, combination, sale, conveyance,
transfer, liquidation, dissolution or winding up.
(g)
Certificate of
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Rate pursuant to this Section 5, the Company at
its expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each holder of Series A Preferred Stock a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based and shall file a
copy of such certificate with its corporate records. The Company
shall, upon the reasonable written request of any holder of Series A Preferred
Stock, furnish to such holder a similar certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Rate then in effect, and
(iii) the number of shares of Common Stock and the amount, if any, of capital
stock, other securities or other property (including but not limited to cash and
evidences of indebtedness) which then would be received upon the conversion of
Series A Preferred Stock.
(h)
No
Impairment. The Company may not, whether by any amendment of
its Articles of Incorporation, by any reclassification or other change to its
capital stock, by any merger, consolidation or other combination involving the
Company, by any sale, conveyance or other transfer of any of its assets, by the
liquidation, dissolution or winding up of the Company or by any other way,
impair or restrict its ability to convert shares of Series A Preferred Stock and
issue shares of Common Stock therefor, or avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Section 5 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 A Preferred Stock against impairment to the extent
required hereunder.
(i)
Beneficial Ownership
Limitation. The Company shall not
effect any conversion of the Series A Preferred Stock, and a holder shall not
have the right to convert any portion of the Preferred Stock, to the extent
that, after giving effect to the conversion, such holder (together with such
holder’s affiliates, and any persons acting as a group together with such holder
or any of such holder’s affiliates) would beneficially own in excess of the
Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by
such holder and its affiliates shall include the number of shares of Common
Stock issuable upon conversion of the Series A Preferred Stock with respect to
which such determination is being made, but shall exclude the number of shares
of Common Stock which are issuable upon (i) conversion of the remaining,
unconverted Series A Preferred Stock beneficially owned by such holder or any of
its affiliates and (ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Company subject to a
limitation on conversion or exercise analogous to the limitation contained
herein (including, without limitation, the Series A Preferred Stock)
beneficially owned by such holder or any of its affiliates. Except as set
forth in the preceding sentence, for purposes of this Section 5(i), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder. To the
extent that the limitation contained in this Section 5(i) applies, the
determination of whether the Series A Preferred Stock is convertible (in
relation to other securities owned by such holder together with any affiliates)
and of how many shares of Series A Preferred Stock are convertible shall be in
the sole discretion of such holder, and the submission of a conversion notice
shall be deemed to be such holder’s determination of whether the shares of
Series A Preferred Stock may be converted (in relation to other securities owned
by such holder together with any affiliates) and how many shares of the Series A
Preferred Stock are convertible, in each case subject to the Beneficial
Ownership Limitation. To ensure compliance with this restriction, each holder
will be deemed to represent to the Company each time it delivers a conversion
notice that such conversion notice has not violated the restrictions set forth
in this paragraph and the Company shall have no obligation to verify or confirm
the accuracy of such determination. In addition, a determination as
to any group status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 5(i), in determining the
number of outstanding shares of Common Stock, a holder may rely on the number of
outstanding shares of Common Stock as stated in the most recent of the
following: (i) the Company’s most recent periodic or annual report filed with
the Commission, as the case may be, (ii) a more recent public announcement by
the Company or (iii) a more recent written notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock outstanding. Upon
the written or oral request of a holder, the Company shall within two Trading
Days confirm orally and in writing to such holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the conversion or
exercise of securities of the Company, including the Series A Preferred Stock,
by such holder or its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. The “Beneficial Ownership
Limitation” shall be 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common
Stock issuable upon conversion of Series A Preferred Stock held by the
applicable holder. A holder, upon not less than 61 days’ prior notice
to the Company, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section 5(i) applicable to its Series A Preferred Stock
provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of
the number of shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock upon conversion of the Series A
Preferred Stock held by the holder and the provisions of this Section 5(i) shall
continue to apply. Any such increase or decrease will not be
effective until the 61st day
after such notice is delivered to the Company and shall apply only to such
holder and no other holder. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 5(i) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership
Limitation contained herein or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of Preferred
Stock.
Section
6. Redemption. The
shares of Series A Preferred Stock are not subject to redemption.
Section
7. Additional
Definitions. For purposes of these resolutions, the following
terms shall have the following meanings:
(a)
“affiliate”
means, with respect to any specified person, any other person that directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with, such specified person, for so long as such other
person remains so associated to such specified person;
(b)
“capital stock”
means any and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) of capital stock, partnership
interests (whether general or limited) or equivalent ownership interests in or
issued by such person, and with respect to the Company includes, without
limitation, any and all shares of Common Stock and the Preferred
Stock.
(c)
“Commission”
means the United States Securities and Exchange Commission.
(d)
“Equity
Securities” means (x) any shares of capital stock of the Company, (y) any
rights, options, warrants or similar securities to subscribe for, purchase or
otherwise acquire any shares of capital stock of the Company, and (z) debt or
other evidences of indebtedness, capital stock or other securities directly or
indirectly convertible into or exercisable or exchangeable for any shares of
capital stock of such the Company.
(e)
“Fair Market
Value” of any property means the fair market value thereof as determined
in good faith by the Board, which determination must be set forth in a written
resolution of the Board, in accordance with the following rules:
(i) for
a security traded or quoted on a national securities exchange or automated
quotation system, the Fair Market Value will be the average of the closing
prices of such security on such exchange or quotation system over a 20-trading
day period ending on the trading day immediately prior to the date of
determination;
(ii) for
Common Stock that is not so traded or quoted, the Fair Market Value shall be
determined: (x) mutually by the Board and the holders of at least a
majority of the then outstanding shares of Series A Preferred Stock, (y) by the
Board based on a valuation of the Company not less than the implied valuation of
the Common Stock based on an arms’-length sale of Equity Securities to a
non-affiliate third-party within six months of the date of determination, or (z)
by a nationally recognized investment bank or accounting firm (whose fees and
expenses will be paid by the Company); or
(iii) for
any other property, the Fair Market Value shall be determined by the Board
assuming a willing buyer and a willing seller in an arm’s-length
transaction;
provided that if
holders representing two-thirds of the then outstanding shares of Series A
Preferred Stock object to a determination of the Board made pursuant to clause
(ii)(y) or (z) or clause (iii), then the Fair Market Value of such property will
be as determined by a nationally recognized investment banking or accounting
firm (whose fees and expenses will be paid by the Company) selected by mutual
agreement between the Board and the holders representing a majority of the then
outstanding shares of Series A Preferred Stock.
(f)
“hereof”,
“herein” and
“hereunder” and
words of similar import refer to these resolutions as a whole and not merely to
any particular clause, provision, section or subsection.
(g)
“person” means
any individual, corporation, limited liability company, limited or general
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity or any group comprised of two or more of the
foregoing.
(h)
“Stated Value”
means $1 for each share of Series A Preferred Stock.
(i)
“Trading Day”
means a day on which the principal Trading Market is open for
business.
(j)
“Trading
Market” means any of the following markets or exchanges on which the
Common Stock is listed or quoted for trading on the date in question: the NYSE
AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any
successors to any of the foregoing).
[Rest of
page intentionally left blank.]
IN WITNESS WHEREOF, the Company has
caused these Articles of Amendment to the Articles of Incorporation to be
executed by a duly authorized officer of the Company as of April 8,
2010.
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EPIC
ENERGY RESOURCES, INC.
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By:
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Name:
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Title:
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