EXHIBIT 3.16
ARTICLES OF AMENDEDMENT
TO ARTICLES OF INCORPORATION,
OF
IMAGING DIAGNOSTIC SYSTEMS, INC.
PURSUANT TO STATUTES 607.0821 AND 607.0602 OF
THE FLORIDA BUSINESS CORPORATION ACT
The undersigned, being the President and Secretary of Imaging
Diagnostic Systems, Inc., a corporation organized and existing under and by
virtue of the laws of the State of Florida (hereinafter the "Corporation"), DO
HEREBY CERTIFY AND AMEND THE CORPORATION'S ARTICLES OF INCORPORATION AS FOLLOWS:
FIRST: That pursuant to authority expressly granted and vested in the
Board of Directors of said Corporation by the provisions of the Corporation's
Articles of Incorporation, a majority of the Board of Directors adopted the
following resolution on July 14, 2000 determining the designations, preferences
and rights of its Series K Convertible Preferred Stock:
RESOLVED: That pursuant to the authority vested in the Board of
Directors of the Corporation by the Corporation's Articles of Incorporation (the
"Articles of Incorporation"), a series of Preferred Stock of the Corporation be,
and it hereby is, created out of the authorized but unissued shares of the
capital stock of the Corporation, such series to be designated Series K
Convertible Preferred Stock (the "Series K Convertible Preferred Stock"), to
consist of 500 shares, no par value per share, of which the preferences and
relative and other rights, and the qualifications, limitations or restrictions
thereof, shall be as set forth in the Certificate of Designations annexed
hereto:
ARTICLE III CAPITAL STOCK
CERTIFICATE OF DESIGNATIONS OF PREFERENCES,
RIGHTS AND LIMITATIONS OF SERIES K
CONVERTIBLE PREFERRED STOCK
1. Number of Shares of Series K Convertible Preferred Stock. Of the
1,996,392 shares of authorized but undesignated Preferred Stock par value
("Preferred Stock") of the Corporation, five hundred (500) shares shall be
designated and known as Series K Convertible Preferred Stock, no par value
("Series K Convertible Preferred Stock").
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Voting.
(a) Unless required by law, no holder of any shares of Series K Convertible
Preferred Stock shall be entitled to vote at any meeting of stockholders of the
Corporation (or any written actions of stockholders in lieu of meetings) with
respect to any matters presented to the stockholders of the Corporation for
their action or consideration. Notwithstanding the foregoing, the Corporation
shall provide each holder of record of Series K Convertible Preferred Stock with
timely notice of every meeting of stockholders of the Corporation and shall
provide each holder with copies of all proxy materials distributed in connection
therewith.
(b) So long as any shares of Series K Convertible Preferred Stock are
outstanding, the Corporation shall not, without first obtaining the approval (by
vote or written consent, as provided by the Florida Business Corporation Act) of
the holders of at least 85% in interest of the then outstanding shares of Series
K Convertible Preferred Stock:
(i) alter or change the rights, preferences or privileges of the
Series K Convertible Preferred Stock;
(ii) create any new class or series of capital stock having parity
with or a preference over the Series K Convertible Preferred Stock as to
payment of dividends or distribution of assets upon liquidation,
dissolution or winding up of the Corporation ("Senior Securities"), or
alter or change the rights, preferences or privileges of any Senior
Securities so as to affect adversely the Series K Convertible Preferred
Stock, or issue (or authorize the issuance of) any additional shares of any
existing class or series of Senior Securities;
(iii) increase the authorized number of shares of Series K Convertible
Preferred Stock; or
(iv) do any act or thing not authorized or contemplated by this
Certificate of Designations which would result in taxation of the holders
of shares of the Series K Convertible Preferred Stock under Section 305 of
the Internal Revenue Code of 1986, as amended (or any comparable provision
of the Internal Revenue Code as hereafter from time to time amended).
In the event holders of at least 85% in interest of the then
outstanding shares of Series K Convertible Preferred Stock agree to allow the
Corporation to alter or change the rights, preferences or privileges of the
shares of Series K Convertible Preferred Stock, pursuant to subsection (b)
above, so as to affect the Series K Convertible Preferred Stock, then the
Corporation will deliver notice of such approved change to the holders of the
Series K Convertible Preferred Stock that did not agree to such alteration or
change (the "Dissenting Holders") and Dissenting Holders shall have the right
for a period of thirty (30) days from the date of notice thereof (irrespective
of whether such notice date shall occur on a date prior to the date the holders
of the Series K Convertible Preferred Stock are otherwise permitted to convert
under Section 4(b)) to convert any and all shares of then held Series K
Convertible Preferred Stock pursuant to the terms of this Certificate of
Designation as in effect prior to such alteration or change, or else to continue
to hold their shares of Series K Convertible Preferred Stock pursuant to the
altered or changed terms.
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3. Dividends
(a) The holders of shares of Series K Convertible Preferred Stock shall be
entitled to receive, before any cash dividend shall be declared and
paid upon or set aside for the Common Stock or any other securities
which are not Senior Securities, in any fiscal year of the Corporation,
out of funds legally available for that purpose, cumulative dividends
payable in cash or registered stock in an amount per share for such
fiscal year equal to $ 900.00.
(b) Dividends shall accrue on a daily basis. Dividends shall be payable
semi-annually on June 30 and December 31 of each calendar year (each,
a "Dividend Date") or upon a Conversion date.
(c) Dividends shall be payable, at the option of the Company, in cash or
in Common Stock of the Company. If the Company elects to pay the
dividend in cash it shall be payable by (i) with respect to dividends
payable on a Dividend Date, the date (the "Regular Dividend Payment
Date") which is ten business days after the Dividend Date, or (ii)
with respect to dividends payable on a Conversion Date, the third
Trading Day after the Conversion Date. If the Company elects to pay
the dividend in stock or does not pay the dividend in cash by the
Regular Dividend Payment Date or by the third Trading Day after the
Conversion Date, as the case may be, the Company shall pay the
dividend in shares of Common Stock based on the following formula: the
amount of the dividend divided by the Conversion Price in effect on
the Conversion Date or the Dividend Date. The shares shall be
delivered by the Company within three Trading Days after the
Conversion Date or, with respect to the regular semi-annual dividends,
the Regular Dividend Payment Date.
4. Liquidation. If the Corporation shall commence a voluntary case under
the Federal bankruptcy laws or any other applicable Federal or state bankruptcy,
insolvency or similar law, or consent to the entry of an order for relief in an
involuntary case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Corporation or of any substantial part of its property, or make
an assignment for the benefit of its creditors, or admit in writing its
inability to pay its debts generally as they become due, or if a decree or order
for relief in respect of the Corporation shall be entered by a court having
jurisdiction in the premises in an involuntary case under the Federal bankruptcy
laws or any other applicable Federal or state bankruptcy, insolvency or similar
law resulting in the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and any such decree or order shall be unstayed and in effect for a
period of thirty (30) consecutive days and, on account of any such event, the
Corporation shall liquidate, dissolve or wind up, or if the Corporation shall
otherwise liquidate, dissolve or wind up (each such event being considered a
"Liquidating Event"), no distribution shall be made to the holders of any shares
of capital stock of the Corporation other than Senior Securities (as defined
above) upon such Liquidating Event unless prior thereto, the holders of shares
of Series K Convertible Preferred Stock shall have received the Liquidation
Preference (as defined in Section 4(c)) with respect to each such share held by
such holders. If upon the occurrence of a Liquidation Event, the assets and
funds available for distribution among the holders of the Series K Convertible
Preferred Stock and holders of securities ranking pari passu as to preference
upon liquidation with the Series K Convertible Preferred Stock shall be
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insufficient to permit the payment to such holders of the preferential amounts
payable thereon, then the entire assets and funds of the Corporation legally
available for distribution to the Series K Convertible Preferred Stock and such
pari passu securities shall be distributed ratably among such shares in
proportion to the ratio that that Liquidation Preference payable on each such
share bears to the aggregate Liquidation Preference payable on all such shares.
(c) In the case of any sale, conveyance of disposition of all or
substantially all of the assets of the Corporation, the effectuation by the
Corporation of a transaction or series or related transactions in which more
than 50% of the voting power of the Corporation is disposed of, or the
consolidation, merger or other business combination of the Corporation with or
into any other person or persons when the Corporation is not the survivor, each
Holder shall have the right thereafter to (A) convert its shares of Series K
Preferred Stock into the shares of stock and other securities, cash and property
receivable upon or deemed to be held by holders of Common Stock following such
merger, consolidation or sale, and such holder shall be entitled upon such event
or series of related events to receive such amounts of securities, cash and
property as the Shares of Common Stock into which such shares of Series K
Preferred Stock could have been converted immediately prior to such merger,
consolidation or sales would have been entitled, or (B) in the case of merger or
consolidation, (x) require the surviving entity to issue shares of convertible
preferred stock or convertible debentures with such aggregate stated value or in
such face amount, as the case may be, equal to the Stated Value of the shares of
Series K Preferred Stock then held by such Holder, plus all accrued and unpaid
dividends and other amounts owing thereon, which newly issued shares of
preferred stock or debentures shall have the terms identical (including with
respect to conversion) to the terms of the Series K Preferred Stock (except, in
the case of debentures, as may be required to reflect the difference between
debt and equity) and shall be entitled to all of the rights and privileges of a
Holder of Series K Preferred Stock set forth herein and the agreements pursuant
to which the Series K was issued (including, without limitation, as such rights
relate to the acquisition, transferability, registration and listing of such
shares of stock other securities issuable upon conversion thereof), and (y)
simultaneously with the issuance of such convertible preferred stock or
convertible debentures, shall have the right to convert such instrument only
into shares of stock and other securities, cash and property receivable upon or
deemed to be held by holders of Common Stock following such merger or
consolidation.
(d) The Liquidation Preference shall be the "Stated Value" of $10,000 per
share of Series K Convertible Preferred Stock, plus all accrued but unpaid
dividends.
2. Optional Conversion. The holders of shares of Series K Convertible
Preferred Stock shall have the following conversion rights:
(a) Right to Convert; Conversion Price. Subject to the terms, conditions,
and restrictions of this Section 4, the holder of any shares of Series K
Convertible Preferred Stock shall have the right to convert each such share of
Series K Convertible Preferred Stock (except that upon any Liquidating Event,
the right of conversion shall terminate at the close of business on the business
day fixed for payment of the amount distributable on the Series K Convertible
Preferred Stock) into that number of shares of Common Stock equal to (i) the
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Stated Value of such share or shares of Series K Convertible Preferred Stock,
and the accrued but unpaid dividends thereon, divided by (ii) the "Conversion
Price," which is the price equal to 87.5% of the average of the three lowest
closing bid prices (which need not be consecutive) on the Principal Market (the
"Market Price") during the period of twenty consecutive Trading Days ending with
the last Trading Day prior to the date of conversion (the "Conversion Date"). To
illustrate, if the Market Price as of the Conversion Date is $3.00 and 10 shares
of Series K Convertible Preferred Stock are being converted, the Stated Value
for which would be $100,000, then the Conversion Price shall be $2.625 per share
of Common Stock ($3.00 x .875), whereupon the Stated Value of $100,000 of Series
K Convertible Preferred Stock would entitle the holder thereof to convert the 10
shares of Series K Convertible Preferred Stock into 38,095 shares of Common
Stock ($100,000 divided by $2.625 equals 38,095). However, in no event shall the
Conversion Price be greater than115% of the closing bid price of the Common
Stock on the Principal Market on the Trading Date immediately preceding the
Original Issuance Date, as defined in the next paragraph (the "Maximum
Conversion Price"). The Maximum Conversion Price will be equitably adjusted upon
the occurrence of any event contemplated by section 5 (f) hereof.
(b) Conversion Date. (i) The holder of any shares of Series K Convertible
Preferred Stock may convert the shares of Series K Convertible Preferred Stock
purchased by such holder from the Company anytime from the date on which payment
for the sale of the first share of Series K Convertible Preferred Stock is
received by the Corporation (the "Original Issuance Date"), unless otherwise
agreed to in writing by the Corporation and the affected holder; provided that
if the Company shall exercise its option under Section 7 to redeem any shares of
Series K Convertible Preferred Stock, the Company shall permit, during the
period between the Redemption Notice and the Redemption Date, the holders of the
Series K Convertible Preferred Stock to convert up to 50% (as adjusted in
accordance with this Section 5) of all of such shares originally issued to the
holders.
(ii) In no event other than pursuant to Section 4 (b) and 6 (a) shall a
holder be permitted to convert any shares of Series K Convertible Preferred
Stock in excess of the number of such shares upon the conversion of which, (x)
the number of shares of Common Stock owned by such holder (other than shares of
Common Stock issuable upon conversion of shares of Series K Convertible
Preferred Stock and upon exercise of the stock purchase Warrants issued in
conjunction with the issuance of shares of Series K Convertible Preferred Stock)
plus (y) the number of shares of Common Stock issuable upon such conversion of
those shares of Series K Convertible Preferred Stock sought to be converted,
would be equal to or exceed 4.9% of the number of shares of Common Stock then
issued and outstanding, including those shares issuable upon conversion of the
Series K Convertible Preferred Stock held by such holder after application of
this Section 5(b)(ii). As used herein, beneficial ownership shall be determined
in accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder. To the extent that the
limitation contained in this Section 5(b)(ii) applies, the determination of
whether shares of Series K Convertible Preferred Stock are convertible (in
relation to other securities owned by holder) and of which shares of Series K
Convertible Preferred Stock are convertible shall be in the sole discretion of
such holder, and the submission of shares of Series K Convertible Preferred
Stock for conversion shall be deemed to be such holder's determination of
whether such shares of Series K Convertible Preferred Stock are convertible (in
relation to other securities owned by such holder) and of which shares of Series
K Convertible Preferred Stock are convertible, in each case subject to such
aggregate percentage limitation, and the Corporation shall have no obligation or
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right to verify or confirm the accuracy of such determination. Nothing contained
herein shall be deemed to restrict the right of a holder to convert such shares
of Series K Convertible Preferred Stock at such time as such conversion will not
violate the provisions of this paragraph. The provisions of this Section
5(b)(ii) may be waived by a holder of Series K Convertible Preferred Stock as to
itself (and solely as to itself) upon not less than 75 days' prior notice to the
Corporation, and the provisions of this Section 5(b)(ii) shall continue to apply
until such 75th day (or such later date as may be specified in such notice of
waiver). No conversion in violation of this paragraph but otherwise in
accordance with this Certificate of Designation shall affect the status of the
Common Stock issued upon such conversion as validly issued, fully-paid and
nonassessable.
(c) Notice of Conversion. The right of conversion shall be exercised by the
holder thereof by giving written notice (the "Conversion Notice") to the
Corporation, by facsimile or by registered mail or overnight delivery service,
with a copy by facsimile to the Corporation's then transfer agent for its Common
Stock, as designated by the Corporation from time to time, that the holder
elects to convert a specified number of shares of Series K Convertible Preferred
Stock representing a specified Stated Value thereof into Common Stock and, if
such conversion will result in the conversion of all of such holder's shares of
Series K Convertible Preferred Stock, by surrender of a certificate or
certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the Series K
Convertible Preferred Stock) at any time during its usual business hours on the
date set forth in the Conversion Notice, together with a statement of the name
or names (with address) in which the certificate or certificates for shares of
Common Stock shall be issued. The Conversion Notice shall include therein the
Stated Value of shares of Series K Convertible Preferred Stock to be converted,
and a calculation of (i) the Market Price, (ii) the Conversion Price, and (iii)
the number of shares of Common Stock to be issued in connection with such
conversion. Such calculations by the holder shall be conclusive except for
manifest error.
(d) Issuance of Certificates; Time Conversion Effected. (i) Promptly, but
in no event more than three (3) Trading Days, after the receipt of the
Conversion Notice referred to in Section 5(c) and surrender of the certificate
or certificates for the share or shares of Series K Convertible Preferred Stock
to be converted (if required), the Corporation shall issue and deliver, or cause
to be issued and delivered, to the holder, registered in such name or names as
such holder may direct, a certificate or certificates for the number of whole
shares of Common Stock into which such shares of Series K Convertible Preferred
Stock have been converted. Such conversion shall be deemed to have been effected
on the date on which such Conversion Notice shall have been telecopied to the
Corporation and at the time specified stated in such Conversion Notice, which
must be during the calendar day of such notice, and at such time the rights of
the holder of such share or shares of Series K Convertible Preferred Stock shall
cease, and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares
represented thereby.
(ii) The Corporation understands that a delay in the issuance
of the shares of Common Stock, either registered shares pursuant to a
registration statement or legended shares if registration statement is not
effective, beyond three (3) Trading Days could result in economic loss to the
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holder. As compensation to the holder for such loss, the Corporation agrees to
pay late payments to the holder for late issuance of shares of Common Stock upon
conversion in accordance with the following schedule (where "No. Trading Days
Late" is defined as the number of Trading Days beyond three (3) Trading Days
from the date of the telecopy by holder to the Corporation of the Conversion
Notice); provided, however, that the Corporation shall not be obligated to make
any payment under this section if the cause of such delay in the issuance of the
shares of common stock is the result of an act, omission or circumstance
completely beyond the control of the Corporation and/or its agent and not
resulting from the negligence of the Corporation and/or any agent thereof:
Late Payment For Each
$5,000 of Stated Value or Dividend
No. Trading Days Late Amount Being Converted
----------------------------- --------------------------------------
1 $100
2 $200
3 $300
4 $400
5 $500
6 $600
7 $700
8 $800
9 $900
10 $1,000
>10 $1,000 + $200 for each Trading Day
Late beyond 10 days
The Corporation shall pay any payments incurred under this Section in
immediately available funds upon demand. Nothing herein shall limit holder's
right to pursue injunctive relief and/or actual damages for the Corporation's
failure to issue and deliver Common Stock to the holder, including, without
limitation, the holder's actual losses occasioned by any "buy-in" of Common
Stock necessitated by such late delivery; provided, however, that if the
Corporation uses its best efforts to issue and deliver Common Stock to the
holder, the Corporation shall not be liable under this Section 5(d)(i) for any
damages relating to or arising out of any such "buy-in". Furthermore, in
addition to any other remedies which may be available to the holder, in the
event that the Corporation fails for any reason to effect delivery of such
shares of Common Stock within five (5) Trading Days of the date of receipt of
the Conversion Notice, the holder will be entitled to revoke the relevant
Conversion Notice by delivering a notice to such effect to the Corporation
whereupon the Corporation and the holder shall each be restored to their
respective positions immediately prior to delivery of such Conversion Notice
except that holder shall retain the right to receive the late payment amounts
set forth above, plus the actual cost of any "buy-in"; provided, however, that
if the Corporation used its best efforts to issue and deliver such shares of
Common Stock to the holder, the Corporation shall not be liable under this
Section 5(d)(i) for any damages relating to or arising out of any such "buy-in".
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(iii) If, at any time (a) the Corporation challenges, disputes or denies
the right of the holder to effect the conversion of the Series K Convertible
Preferred Stock into Common Stock or otherwise dishonors or rejects any
Conversion Notice properly delivered in accordance with this Section 5 or (b)
any third party who is not and has never been an Affiliate (as defined in Rule
405 under the Securities Act of 1933, as amended) of the holder obtains a
judgment or order from any court or public or governmental authority which
denies, enjoins, limits, modifies, or delays the right of the holder hereof to
effect the conversion of the Series K Convertible Preferred Stock into shares of
Common Stock, then the holder shall have the right, by written notice to the
Corporation, to require the Corporation to promptly redeem the Series K
Convertible Preferred Stock for cash at a redemption price equal to one hundred
fifteen percent (115%) of the Stated Value thereof (the "Mandatory Purchase
Amount"); provided that if the Corporation shall be required to redeem the
Series K Convertible Preferred Stock under clause (b) of this paragraph, the
Mandatory Purchase Amount shall be one hundred ten percent (110%) of the Stated
Value thereof. Under any of the circumstances set forth above, the Corporation
shall indemnify and hold harmless the holder and be responsible for the payment
of all costs and expenses of the holder, including its reasonable legal fees and
expenses, as and when incurred in disputing any such action or pursuing its
rights hereunder (in addition to any other rights of the holder). The
Corporation shall not refuse to honor any Conversion Notice unless its has
actually been enjoined by a court of competent jurisdiction from doing so.
(iv) The holder shall be entitled to exercise its conversion privilege
notwithstanding the commencement of any case under 11 U.S.C.ss.101 et seq. (the
"Bankruptcy Code"). In the event the Corporation is a debtor under the
Bankruptcy Code, the Corporation hereby waives to the fullest extent permitted
any rights to relief it may have under 11 U.S.C.ss. 362 in respect of the
holder's conversion privilege. The Corporation agrees, without cost or expense
the holder, to take or consent to any and all action necessary to effectuate
relief under 11 U.S.C.ss.362.
(e) Fractional Shares. No fractional shares shall be issued upon conversion
of Series K Convertible Preferred Stock into Common Stock. All fractional shares
shall be rounded up to the nearest whole share.
(f) Reorganization or Reclassification. If any capital reorganization or
reclassification of the capital stock of the Corporation shall be effected in
such a way that holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, or, in the
case of any consolidation, merger or mandatory share exchange of the Corporation
with any other company or entity in which such other company or entity is the
surviving entity then, as a condition of such reorganization, reclassification
or exchange, lawful and adequate provisions shall be made whereby each holder of
a share or shares of Series K Convertible Preferred Stock shall thereupon have
the right to receive, upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Common Stock immediately theretofore
receivable upon the conversion of such share or shares of Series K Convertible
Preferred Stock, such shares of stock, securities or assets as may be issued or
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payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of shares of such Common Stock immediately
theretofore receivable upon such conversion had such reorganization,
reclassification or exchange not taken place, and in any such case appropriate
provisions shall be made with respect to the rights and interests of such holder
to the end that the provisions hereof (including without limitation provisions
for adjustments of the conversion rights and the fixing of the Conversion Price
and the Maximum Conversion Price) shall thereafter be applicable, as nearly as
may be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of such conversion rights. For clarity, it is the
intention of the Corporation that the conversion rights of the holders of the
Series K Convertible Preferred Stock shall survive any consolidation, merger or
mandatory share exchange and that the conversion rights granted hereunder shall
be exercisable against any successor company or entity, and shall not be
terminated or fixed as to amount upon the consummation of any such transaction.
(g) Adjustments for Splits, Combinations, etc. The Conversion Price and the
number of shares of Common Stock into which the Series K Convertible Preferred
Stock shall be convertible shall be adjusted for stock splits, stock dividends,
combinations or other similar events. No adjustment to the Conversion Price will
be made for dividends (other than stock dividends), if any, paid on the Common
Stock or for securities issued pursuant to exercise for fair value of options or
warrants.
3. Mandatory Conversion.
(a) Mandatory Conversion Date. If on or after December 31, 2002 (such date
as selected by the Corporation being the "Mandatory Conversion Date"), there
remain issued and outstanding any shares of Series K Convertible Preferred
Stock, then the Corporation shall be entitled to require all (but not less than
all) holders of shares of Series K Convertible Preferred Stock then outstanding
to convert their shares of Series K Convertible Preferred Stock into shares of
Common Stock or, at the option of the Corporation, to buy out all such holders
in cash, at the closing bid price on the Trading Day prior to the Mandatory
Conversion Date multiplied by the number of shares of Common Stock into which
the Series K Convertible Preferred would otherwise be convertible. The period
during which the Corporation may select a Mandatory Conversion Date shall be
extended for the number of days during the period (A) in which trading in the
Common Stock is suspended by the Principal Market (as defined in the Purchase
Agreement referred to in Section 14 below) on which the Common Stock is then
listed, or (B) during which any registration statement relating to the Series K
Convertible Preferred Stock is not effective, or (C) during which the prospectus
included in such registration statement may not be used by the holders thereof
for the resale of underlying shares of Common Stock. The Corporation shall
provide written notice (the "Mandatory Conversion Notice") to the holders of
shares of Series K Convertible Preferred Stock of such mandatory conversion or
such mandatory buy-out. The Mandatory Conversion Notice shall include (i) the
Stated Value of the shares of Series K Convertible Preferred Stock to be
converted or bought out, (ii) the Conversion Price at the Mandatory Conversion
Date (which may refer to a formula for determining such price), and (iii) the
number of shares of the Corporation's Common Stock to be issued (or the amount
of cash to be paid in the event of a buy-out) upon such mandatory conversion or
such mandatory buy-out at the then applicable Conversion Price. Notwithstanding
the foregoing, in no event shall the Corporation convert that portion of the
Series K Convertible Preferred Stock to the extent that (x) the holder will not
be able to freely resell the shares of Common Stock to be received upon such
Mandatory Conversion, either pursuant to an effective registration statement or
Rule 144(k) or (y) such holder has not had the opportunity for at least one
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calendar year prior thereto to resell the shares of Common Stock underlying its
shares of Series K Convertible Preferred Stock in the manner described in clause
(x) of this paragraph or (z) as to any individual holder, make such holder the
beneficial owner of 4.9% or more of the Company's then-outstanding Common Stock.
(b) Surrender of Certificates. On or before the Mandatory Conversion Date,
each holder of shares of Series K Convertible Preferred Stock shall surrender
his or its certificate or certificates for all such shares to the Corporation at
the place designated in such Mandatory Conversion Notice (or an affidavit of
lost certificate in form and content reasonably satisfactory to the Corporation
but which shall not require the posting of any bond), and shall thereafter
receive certificates for the number of shares of Common Stock to which such
holder is entitled or, in the event of a buy-out by the Corporation, the amount
of cash such holder is entitled within three (3) Trading Days. On the Mandatory
Conversion Date, all rights with respect to the Series K Convertible Preferred
Stock so converted, including the rights, if any, to receive notices and vote,
will terminate. All certificates evidencing shares of Series K Convertible
Preferred Stock that are required to be surrendered for conversion in accordance
with the provisions hereof, from and after the Mandatory Conversion Date, shall
be deemed to have been retired and cancelled, notwithstanding the failure of the
holder or holders thereof to surrender such certificates on or prior to such
date. The Corporation may thereafter take such appropriate action as may be
necessary to reduce the authorized Series K Convertible Preferred Stock
accordingly.
4. Company's Redemption of Series K Convertible Preferred Stock.
(a) Company's Right to Redeem Series K Convertible Preferred Stock. At any
time after the Original Issuance Date, the Corporation may, in its sole
discretion, but shall not be obligated to, redeem, in whole but not in part, the
then issued and outstanding shares of Series K Convertible Preferred Stock, at a
price equal to (i) 105% of the Stated Value, plus all accrued but unpaid
dividends, if such redemption is paid on or before 120 days from the Original
Issuance Date; (ii) 107.5% of the Stated Value, plus all accrued but unpaid
dividends, if such redemption is paid on or after 121 days from the Original
Issuance Date and on or before 180 days from the Original Issuance Date; and
(iii) 110% of the Stated Value, plus all accrued but unpaid dividends, if such
redemption is paid thereafter. All of the holders, in the aggregate, shall have
ten (10) Trading Days after receipt of the Redemption Notice to elect instead to
convert up to one-half of such shares originally issued to all such holders, in
the aggregate, pursuant to Section 5 hereof, notwithstanding that the shares of
Series K Convertible Preferred Stock are not otherwise convertible at such time.
Any such conversions made pursuant to this Section 7 shall be made at the
Conversion Price established pursuant to Section 5(a). Redemption of the Series
K Preferred can only be made through the use of the equity line. No third party
financing shall be permitted for redemption.
(b) Notice of Redemption. The Corporation shall provide each holder of
record of the Series K Convertible Preferred Stock being redeemed with written
notice of redemption (the "Redemption Notice") not less than 10 Trading Days
prior to any date stipulated by the Corporation for the redemption of the Series
K Convertible Preferred Stock (the "Redemption Date"); provided that the Company
may not circulate a Redemption Notice unless such notice includes evidence that
it shall have obtained the funds to make such redemption payments and that such
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funds shall have been deposited in escrow with Krieger & Prager LLP, or such
other agent as shall be satisfactory to the holders of a majority of the Stated
Value of the then outstanding Series K Convertible Preferred Stock. The
Redemption Notice shall contain (i) the Redemption Date, (ii) the number of
shares of Series K Convertible Preferred Stock to be redeemed from the holder to
whom the Redemption Notice is delivered, and (iii) instructions for surrender to
the Corporation of the certificate or certificates representing the shares of
Series K Convertible Preferred Stock to be redeemed.
(c) Surrender of Certificates; Payment of Redemption Price. On or before
the Redemption Date, each holder of the shares of Series K Convertible Preferred
Stock to be redeemed shall surrender the required certificate or certificates
representing such shares to the Corporation (or an affidavit of lost certificate
in form and content reasonably satisfactory to the Corporation, but which shall
not require the posting of any bond), in the manner and at the place designated
in the Redemption Notice, and upon payment to the holder of the Redemption
Price, each such surrendered certificate shall be cancelled and retired. If
payment of such Redemption Price is not made in full by the Redemption Date the
holder shall again have the right to convert the Series K Convertible Preferred
Stock as provided in Section 5 hereof, and the Company shall thereafter be
precluded from exercising its rights under this Section 7. If a certificate is
surrendered and all the shares evidenced thereby are not being redeemed with the
consent of the holder, the Corporation shall issue new certificates to be
registered in the names of the person(s) whose name(s) appear(s) as the owners
on the respective surrendered certificates and deliver such certificate to such
person(s).
5. Holders' Redemption Upon Triggering Events.
(a) Upon the occurrence of a Triggering Event (as defined below), each
holder shall (in addition to all other rights it may have hereunder or under
applicable law), have the right, exercisable at the sole option of such holder,
to require the Company to redeem all or a portion of the Series K Convertible
Preferred Stock then held by such holder for a redemption price, in cash, equal
to the sum of (i) 100% of the State Value of such redeemed shares, plus all
accrued but unpaid dividends thereon; plus (ii) the product of (A) the number of
shares of Common Stock issued in respect of conversions hereunder and then held
by the holder and (B) the Market Price on the date such redemption is demanded
or the date the redemption price hereunder is paid in full, whichever is greater
(such sum, the "Trigger Redemption Price"). The Trigger Redemption Price shall
be due and payable within five Trading Days of the date on which the notice for
the payment therefor is provided by a holder. If the Company fails to pay the
Trigger Redemption Price hereunder in full pursuant to this Section 8 on the
date such amount is due in accordance with this Section, the Company will pay
interest thereon at a rate of 18% per annum (or the lesser amount permitted by
applicable law), accruing daily from such date until the Trigger Redemption
Price, plus all such interest thereon, is paid in full. For purposes of this
Section, a share of the Series K Convertible Preferred Stock is outstanding
until such date as the holder shall have received shares of Common Stock upon a
conversion (or attempted conversion) thereof that meets the requirements hereof.
(b) Definition of Triggering Events. A "Triggering Event" means any one or
more of the following events (whatever the reason and whether it shall be
voluntary or involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court, or any order, rule or regulation of any
administrative or governmental body):
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(i) the failure of Registration Statement to be declared effective by
the SEC on or prior to the 180th day after the Original Issue Date;
(ii) if, during the Effectiveness Period, the effectiveness of the
Registration Statement lapses for any reason for more than an aggregate of three
Trading Days (which need not be consecutive Trading Days), or the holder shall
not be permitted to resell Registrable Securities under the Registration
Statement for more than an aggregate of three Trading Days (which need not be
consecutive Trading Days);
(iii) the failure of the Common Stock to be listed for trading on the
Principal Market or the suspension of the Common Stock from trading on the
Principal Market for more than three Trading Days (which need not be consecutive
Trading Days);
(iv) the Company shall fail for any reason to deliver certificates
representing Underlying Shares issuable upon a conversion hereunder that comply
with the provisions hereof prior to the tenth day after the Conversion Date or
the Company shall provide notice to any holder, including by way of public
announcement, at any time, of its intention not to comply with requests for
conversion of any shares of Series K Convertible Preferred Stock in accordance
with the terms hereof;
(v) the Company shall be a party to any Change of Control Transaction,
shall agree to sell (in one or a series of related transactions) more than 33%
of its assets or shall redeem more than a de minimis number of Common Stock or
other securities junior to the Series K Convertible Preferred Stock (other than
pursuant hereto). For purposes of this Agreement, a Change of Control
Transaction shall be deemed to have occurred if (A) any person or group ( as
defined for purposes of Regulation 13D of the Exchange Act) (excluding persons
who on the date hereof are beneficial owners of shares of the Company's voting
stock and affiliates of such persons) shall have become the beneficial owner or
owners of more than 50% of the outstanding voting stock of the Corporation; (B)
there shall have occurred a merger or consolidation in which the Corporation or
an affiliate of the Corporation is not the survivor or in which holders of the
Common Stock of the Corporation shall have become entitled to receive cash,
securities of the Corporation other than voting common stock or securities of
any other person; (C) at any time persons constituting the Existing Board of
Directors cease for any reason whatsoever to constitute at least a 33% or 1/3 of
the members of the Board of Directors of the Corporation; or (D) there shall
have occurred a sale of all or substantially all the assets of the Corporation.
For purposes hereof, the term "Existing Board of Directors" shall mean the
persons constituting the Board of Directors of the Corporation on the date
hereof, together with each new director whose election, or nomination for
election by the Corporation's stockholders is approved by a vote of the majority
of the members of the Existing Board of Directors who are in office immediately
prior to the election or nomination of such director.
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(vi) a Registration Default (as defined in the Registration Rights
Agreement) shall not have been cured to the satisfaction of the holders prior to
the expiration of 60 days from such Registration Default;
(vii) the Company shall fail for any reason to pay in full the amount
of cash due pursuant to a "buy-in" within seven days after notice therefor is
delivered hereunder or shall fail to pay all amounts owed on account of a
Triggering Event within seven days of the date due; provided, however, that if
the Corporation uses its best efforts to pay in full the amount of cash due
pursuant to a "buy-in", the Company's failure for any reason to pay in full the
amount of cash due pursuant to such a "buy-in" shall not be deemed a Triggering
Event under this Section 8(b)(vii). In the event that the registration statement
is not effective, the Company shall only be obligated to deliver legended common
shares. In the event that the registration statement is effective, the Company
would be obligated to deliver unlegended common shares.
(viii) the Company shall fail to have available a sufficient number of
authorized and unreserved shares of Common Stock to issue to such holder upon a
conversion hereunder; or
(ix) the Company shall fail to observe or perform any other covenant,
agreement or warranty contained in, or otherwise commit any breach of, any of
this Certificate of Designations, the Convertible Preferred Stock and Warrant
Purchase Agreement related hereto, and all of the other agreements and
instruments contemplated hereby and thereby, and such failure or breach shall
not, if subject to the possibility of a cure by the Company, have been remedied
within ten (10) Business Days after the date on which written notice of such
failure or breach shall have been given.
6. Notices. In case at any time:
(a) the Corporation shall declare any dividend upon its Common Stock
payable in cash or stock or make any other pro rata distribution to the holders
of its Common Stock; or
(b) the Corporation shall offer for subscription pro rata to the holders of
its Common Stock any additional shares of stock of any class or other rights; or
(c) there shall be any capital reorganization or reclassification of the
capital stock of the Corporation, or a consolidation or merger of the
Corporation with or into, or a sale of all or substantially all its assets to,
another entity or entities; or
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by first
class mail, postage prepaid, or by facsimile or by recognized overnight delivery
service to non-U.S. residents, addressed to each holder of any shares of Series
K Convertible Preferred Stock at the address of such holder as shown on the
books of the Corporation, (i) at least twenty (20) Trading Days' prior written
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notice of the date on which the books of the Corporation shall close or a record
shall be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up and (ii) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, at least
twenty (20) Trading Days' prior written notice of the date when the same shall
take place. Such notice in accordance with the foregoing clause (i) shall also
specify, in the case of any such dividend, distribution or subscription rights,
the date on which the holders of Common Stock shall be entitled thereto and (ii)
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
7. Stock to be Reserved. The Corporation, upon the effective date of this
Certificate of Designations, has a sufficient number of shares of Common Stock
available to reserve for issuance upon the conversion of all outstanding shares
of Series K Convertible Preferred Stock, assuming immediate conversion. The
Corporation will at all times reserve and keep available out of its authorized
Common Stock, solely for the purpose of issuance upon the conversion of Series K
Convertible Preferred Stock as herein provided, such number of shares of Common
Stock as shall then be issuable upon the conversion of all outstanding shares of
Series K Convertible Preferred. The Corporation covenants and represents that
all shares of Common Stock which shall be so issued shall be duly and validly
issued, fully paid and non-assessable. The Corporation will take all such action
as may be so taken without violation of any applicable law or regulation to have
a sufficient number of authorized but unissued shares of Common Stock to issue
upon conversion of the Series K Convertible Preferred Stock. The Corporation
will not take any action which results in any adjustment of the conversion
rights if the total number of unissued and unreserved shares of Common Stock
issued and issuable after such action upon conversion of the Series K
Convertible Preferred Stock would exceed the total number of shares of unissued
and unreserved Common Stock then authorized by the Corporation's Articles of
Incorporation.
8. No Reissuance of Series K Convertible Preferred Stock. Shares of Series
K Convertible Preferred Stock which are converted into shares of Common Stock as
provided herein shall not be reissued.
9. Issue Tax. The issuance of certificates for shares of Common Stock upon
conversion of Series K Convertible Preferred Stock shall be made without charge
to the holder for any United States issuance tax in respect thereof, provided
that the Corporation shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the Series K Convertible
Preferred Stock which is being converted.
10. Closing of Books. The Corporation will at no time close its transfer
books against the transfer of any Series K Convertible Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares of
Series K Convertible Preferred Stock in any manner which interferes with the
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timely conversion of such Series K Convertible Preferred Stock, except as may
otherwise be required to comply with applicable securities laws.
11. Definitions. As used in this Certificate of Designations, the term
"Common Stock" shall mean and include the Corporation's authorized Common Stock,
no par value, as constituted on the date of filing of this Certificate of
Designations, and shall also include any capital stock of any class of the
Corporation thereafter authorized which shall neither be limited to a fixed sum
or percentage of par value in respect of the rights of the holders thereof to
participate in dividends nor entitled to a preference in the distribution of
assets upon the voluntary or involuntary liquidation, dissolution or winding up
of the Corporation; provided that the shares of Common Stock receivable upon
conversion of shares of Series K Convertible Preferred Stock shall include only
shares designated as Common Stock of the Corporation on the date of filing of
this instrument, or in case of any reorganization, reclassification, or stock
split of the outstanding shares thereof, the stock, securities or assets
provided for in Subparagraph 5(f) and (g). Any capitalized terms used in this
Certificate of Designations but not defined herein shall have the meanings set
forth in that certain Convertible Preferred Stock and Warrant Purchase Agreement
among the Corporation and the other persons signatory thereto relating to the
issuance of the Series K Convertible Preferred Stock (the "Purchase Agreement"),
a copy of which will be provided to any stockholder of the Corporation upon
request to the Secretary of the Corporation, without charge.
12. Loss, Theft, Destruction of Preferred Stock. Upon receipt of evidence
satisfactory to the Corporation of the loss, theft, destruction or mutilation of
certificates representing shares of Series K Convertible Preferred Stock and, in
the case of any such loss, theft or destruction, upon receipt of indemnity
reasonably satisfactory to the Corporation (which shall not include the posting
of any bond), or, in the case of any such mutilation, upon surrender and
cancellation of the Series K Convertible Preferred Stock certificate, the
Corporation shall make, issue and deliver, in lieu of such lost, stolen,
destroyed or mutilated certificates for Series K Convertible Preferred Stock,
new certificates for Series K Convertible Preferred Stock of like tenor. The
Series K Convertible Preferred Stock shall be held and owned upon the express
condition that the provisions of this Section 15 are exclusive with respect to
the replacement of mutilated, destroyed, lost or stolen shares of Series K
Preferred Stock and shall preclude any and all other rights and remedies
notwithstanding any law or statue existing or hereafter enacted to the contrary
with respect to the replacement of negotiable instruments or other securities
without the surrender thereof.
13. Who Deemed Absolute Owner. The Corporation may deem the person in whose
name the Series K Convertible Preferred Stock shall be registered upon the
registry books of the Corporation to be, and may treat it as, the absolute owner
of the Series K Convertible Preferred Stock for the purpose of conversion of the
Series K Convertible Preferred Stock and for all other purposes, and the
Corporation shall not be affected by any notice to the contrary. All such
payments and such conversion shall be valid and effectual to satisfy and
discharge the liability upon the Series K Convertible Preferred Stock to the
extent of the sum or sums so paid or the conversion so made.
14. Register. The Corporation shall maintain a transfer agent, which may be
the transfer agent for the Common Stock or the Corporation itself, for the
registration of the Series K Convertible Preferred Stock. Upon any transfer of
the Series K Convertible Preferred Stock in accordance with the provisions
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hereof, the Corporation shall register or cause the transfer agent to register
such transfer on the Series K Convertible Preferred Stock register
15. Withholding. To the extent required by applicable law, the Corporation
may withhold amounts for or on account of any taxes imposed or levied by or on
behalf of any taxing authority in the United States having jurisdiction over the
Corporation from any payments made pursuant to the Series K Convertible
Preferred Stock.
16. Headings. The headings of the Sections of this Certificate of
Designations are inserted for convenience only and do not constitute a part of
this Certificate of Designations.
IN WITNESS WHEREOF, Linda B. Grable, President of the Corporation,
under penalties of perjury, does hereby declare and certify that this is the act
and deed of the Corporation and the facts stated herein are true and accordingly
has signed this Certificate of Designations as of this 14th day of July, 2000.
ATTEST: Imaging Diagnostic Systems, Inc.
By:/s/ Allan L. Schwartz By: /s/ Linda B. Grable
Allan L. Schwartz Linda B. Grable
Executive Vice President & Secretary President
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