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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMERICAS GAMING INTERNATIONAL, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 06-1189563
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(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
690 South Rock Boulevard, Reno, Nevada 89502
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 Par Value
-----------------------------
(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The following summary descriptions of capital stock of the Company are
qualified in their entirety by reference to the Company's Certificate of
Incorporation, as amended and restated (the "Certificate of Incorporation"),
Certificate of Designation, and Bylaws, a copy of each of which is filed as an
exhibit to the Registration Statement.
COMMON STOCK
The Company's Certificate of Incorporation authorizes the issuance of
25,000,000 shares of Common Stock, par value of $.001 per share. Each share of
Common Stock entitles the holder thereof to one vote in the election of
directors and all other matters submitted to a vote of the Company's
stockholders. Common stockholders do not have cumulative voting rights. Holders
of Common Stock are entitled to share ratably in all dividends declared by the
Board of Directors and in all assets available for distribution upon
liquidation. No holder of the Company's capital stock has any preemptive right
to subscribe for or purchase additional shares of the Company's stock.
PREFERRED STOCK
The Certificate of Incorporation authorizes the issuance of 5,000,000
shares of Preferred Stock. The Board of Directors, within the limitations and
restrictions contained in the Certificate of Incorporation and without further
action by the Company's stockholders, has the authority to issue shares of
Preferred Stock from time to time in one or more series and to fix the number of
shares and the relative rights, conversion rights, voting rights, and terms of
redemption, liquidation preferences and any other preferences, special rights
and qualifications of any such series. Any issuance of Preferred Stock could,
under certain circumstances, have the effect of delaying, deferring or
preventing a change in control of the Company and may adversely affect the
rights of holders of Common Stock. The Company has no present plans to issue any
shares of Preferred Stock other than the 10% Cumulative Convertible Preferred
Stock described below.
10% CUMULATIVE CONVERTIBLE PREFERRED STOCK
The Board of Directors has authorized the issuance of 1,000,000 shares
of 10% Cumulative Convertible Preferred Stock (the "10% Preferred"), 512,500
shares of which were issued and outstanding on June 15, 1996. The 10% Preferred
ranks senior to the Common Stock of the Corporation in dividend rights and
liquidation preference. The holders of the 10% Preferred shall be entitled to
receive, out of any assets of the Corporation legally available therefor,
cumulative dividends at a rate of 10% per annum (the "Dividend Rate") on the
total dollar amount of the consideration paid (the "Original Purchase Price") to
the Corporation for each share of 10% Preferred (the "Dividend Amount"). Such
dividends shall be payable quarterly on the Quarterly Dividend Payment Date (as
hereinafter defined), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share of 10% Preferred. Dividends on each share of
10% Preferred shall accrue and be cumulative from the date of issuance thereof
to the Redemption Date (as hereinafter defined) or the Conversion Date (as
hereinafter defined) of each such share, as applicable and whichever first
occurs, whether or
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not there shall be profits, surplus or other funds of the Corporation legally
available for the payment of such dividends at the time such dividends shall
accrue or become due and whether or not such dividends are declared. Dividends
shall be payable on each share of 10% Preferred on the first day of each July,
October, January and April of each year (the "Quarterly Dividend Payment Date"),
commencing July 1, 1996, to the holder of record on the date thirty (30) days
prior to such Quarterly Dividend Payment Date. Dividends on the 10% Preferred
shall be paid in cash. An amount of cash from the proceeds of the sale of the
10% Preferred that is sufficient to pay dividends on the 10% Preferred for the
first four (4) quarters following the Original Issue Date shall be held in an
escrow account for that purpose. Following the first four Quarterly Dividend
Payment Dates, the Corporation shall pay all future dividends from funds of the
Corporation legally available therefor. If there are not legally available funds
sufficient to pay the entire Dividend Amount owing, the legally available funds
shall be distributed ratably to the record holders and the balance of the
Dividend Amount shall be in arrears and shall be paid as soon as sufficient
legal funds become available.
Except as set forth below and except where voting rights are required
by law, holders of 10% Preferred shall have no voting rights and their consent
shall not be required for taking any corporate action. Without first obtaining
the affirmative vote or written consent of the holders of not less than a
majority of the outstanding shares of the 10% Preferred, the Corporation may not
(a) alter or change any rights, privileges or preferences of the 10% Preferred;
(b) increase or decrease the authorized number of shares of 10% Preferred; or
(c) amend or waive any provision of the Amended Certificate or Bylaws of the
Corporation relative to the 10% Preferred.
Whenever quarterly dividends or other dividends or distributions
payable on the 10% Preferred are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on shares of
10% Preferred outstanding shall have been paid in full or set aside for payment,
the Corporation shall not: (a) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for consideration
any shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the 10% Preferred; (b) declare or pay dividends
on, make any other distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
10% Preferred, except dividends paid ratably on the 10% Preferred and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled; or (c)
redeem or purchase or otherwise acquire for consideration shares of any stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the 10% Preferred, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the 10% Preferred.
At any time, the holders of the 10% Preferred shall have the right, at
their option, to convert any number of shares of 10% Preferred into shares of
Common Stock. Each share of 10% Preferred to be converted shall be convertible
into the number of fully paid and nonassessable shares of Common Stock
determined by dividing the Original Purchase Price (plus accrued but unpaid
dividends) by $3.333 (the "Conversion Price"). Commencing on the one year
anniversary of the Original Issue Date, each share of 10% Preferred Stock (plus
all accrued but unpaid dividends) will automatically convert into that number of
shares of Common Stock in the event that the "Fair Market Value" of the Common
Stock equals or exceeds 300% of the Conversion Price for ten (10) consecutive
trading days. "Fair Market Value" shall mean the average of the closing bid and
asked prices of the
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Common Stock of the Corporation as reported in the Wall Street Journal for any
trading day (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation System or other principal
market for the Common Stock) or, in the event the Common Stock is listed on a
stock exchange, the Fair Market Value shall be the closing price of the Common
Stock of the Corporation on such exchange as reported in the Wall Street Journal
for the trading day.
The Conversion Price is subject to adjustment from time to time (a) in
the event the outstanding shares of Common Stock shall be subdivided by stock
split, stock dividends or otherwise, into a greater number of shares of Common
Stock, the Conversion Price then in effect shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased, or in the event
the outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
the Conversion Price then in effect shall, concurrently with the effectiveness
of such combination or consolidation, be proportionately increased, (b) in the
event that the Corporation from time to time makes or fixes a record date for
the determination of holders of Common Stock entitled to receive any
distribution (excluding any repurchases of securities by the Corporation not
made on a pro rata basis from all holders of any class of the Corporation's
securities) payable in property or in securities of the Corporation other than
shares of Common Stock, and other than as otherwise adjusted as set forth in
this paragraph or for dividends, as set forth above, then and in each such event
the holders of 10% Preferred shall receive at the time of such distribution, the
amount of property or the number of securities of the Corporation that they
would have received had their 10% Preferred been converted into Common Stock on
the date of such event, or (c) upon any liquidation, dissolution or winding up
of the Corporation, if the Common Stock issuable upon conversion of the 10%
Preferred shall be changed into the same or a different number of shares of any
other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
provided for above), each share of 10% Preferred and all accrued but unpaid
dividends shall thereafter be convertible into the number of shares of stock or
other securities or property to which a holder of the number of shares of Common
Stock deliverable upon such conversion shall have been entitled upon such
reorganization or reclassification. No adjustment in the number of shares of
Common Stock into which the shares of 10% Preferred are convertible shall be
required unless such adjustment would require an increase or decrease of at
least 1/10th of a share; provided, however, that any adjustment which by reason
hereof is not required to be made shall be carried forward and taken into
account in any subsequent adjustment. Upon conversion of shares of 10%
Preferred, the Corporation may in its discretion, either pay to the holder of
the 10% Preferred all accrued but unpaid dividends on the 10% Preferred such
holder has elected to convert through the date of the conversion or convert the
dollar amount of any accrued but unpaid dividends on such shares of 10%
Preferred into Common Stock at the Conversion Price.
Subject to the superior rights of the holders of any class or series of
preferred stock ranking superior to the 10% Preferred with respect to any
liquidation, dissolution or winding up of the Corporation, Upon any voluntary
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made to the holders of shares of stock ranking junior (either as to payment
of dividends or with respect to distributions upon liquidation, dissolution or
winding up) to the 10% Preferred unless, prior thereto, the holders of 10%
Preferred shall have received an amount equal to the Original Purchase Price of
the shares of 10% Preferred purchased, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment (the "10% Preferred Liquidation Preference"). Following the
payment of the full amount of the 10% Preferred Liquidation Preference, no
additional distributions shall be made to the holders of 10%
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Preferred. In the event, however, that there are not sufficient assets available
to permit payment in full of the 10% Preferred Liquidation Preference and the
liquidation preferences of all other classes and/or series of Preferred Stock,
if any, which rank on a parity with the 10% Preferred, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences.
In the event of any consolidation or merger of the Corporation with or
into another corporation, or of any sale or conveyance to another corporation of
all or substantially all the property of the Corporation, in any of which
transactions the holders of Common Stock receive shares of stock, other
securities, cash or property receivable upon such consolidation, merger, sale or
conveyance other than Common Stock, each holder of 10% Preferred then
outstanding and thereafter remaining outstanding shall have the right to convert
each share of 10% Preferred held by him into the kind and amount of shares of
stock, other securities, cash or property receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such share of 10% Preferred could have been converted immediately
prior to the record date applicable to such consolidation, merger, sale or
conveyance, and shall have no other conversion rights. In any such event,
effective provision shall be made, in the certificate of incorporation of the
resulting or surviving corporation or otherwise, so that the provisions set
forth herein for the protection of the conversion rights of the holders of the
10% Preferred shall thereafter be applicable to any such other shares of stock,
other securities, cash or property deliverable upon conversion of the shares of
the 10% Preferred remaining outstanding or other convertible stock or securities
received by the holders in place thereof, and any such resulting or surviving
corporation shall expressly assume the obligation to deliver, upon the exercise
of the conversion privilege, such shares, other securities, cash or property as
the holders of the 10% Preferred remaining outstanding, or other convertible
stock or securities received by the holders in place thereof, shall be entitled
to receive pursuant to the provisions hereof, and to make provision for the
protection of the conversion rights as above provided.
Beginning on the one year anniversary of the Original Issue Date,
unless previously converted, all or any portion of the 10% Preferred together
with all dividends accrued but unpaid on such 10% Preferred computed to the
Redemption Date (as defined below) may be redeemed on a pro rata basis by the
Corporation at its election from the holders of such 10% Preferred at any time
and from time to time. Notwithstanding the foregoing, the holders of the 10%
Preferred will have the right to convert the 10% Preferred to Common Stock for a
period of twenty (20) days following notice of redemption.
CERTAIN STATUTORY AND CHARGER PROVISIONS
Section 203 of the Delaware General Corporation Law provides, in
general, that a stockholder acquiring more than 15% of the outstanding voting
shares of a publicly-held Delaware corporation subject to the statute (an
"Interested Stockholder") may not engage in certain "Business Combinations" with
the corporation for a period of three years subsequent to the date on which the
stockholder became an Interested Stockholder unless (i) prior to such date the
corporation's board of directors approved either the Business Combination or the
transaction in which the stockholder became an Interested Stockholder; or (ii)
upon consummation of the Business Combination, the Interest Stockholder owns 85%
or more of the outstanding voting stock of the corporation (excluding shares
owned by directors who are also officers of the corporation or shares held by
employee stock option plans that do not provide employees with the right to
determine confidentially whether shares held subject to the plan will
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be tendered in a tender or exchange offer); or (iii) the Business Combination is
approved by the corporation's board of directors and authorized an annual or
special meeting of stockholders, and not by written consent, by the affirmative
vote of at least two-thirds of the outstanding voting stock of the corporation
not owned by the Interested Stockholder.
Section 203 of the Delaware General Corporation Law defines the term
"Business Combination" to encompass a wide variety of transactions with or
caused by an Interested Stockholder in which the Interested Stockholder receives
or could receive a benefit on other than a pro rata basis with other
stockholders, including mergers, certain asset sales, certain issuances of
additional shares to the Interested Stockholders, transactions with the
corporation which increase the proportionate interest of the Interested
Stockholder or transaction in which the Interested Stockholder receives certain
other benefits.
These provisions could have the effect of delaying, deferring or
preventing a change of control of the Company. The Company's stockholders, by
adopting an amendment to the Certificate of Incorporation or Bylaws of the
Company, may elect not to be governed by Section 203 of the Delaware General
Corporation Law, effective twelve months after adoption. Neither the Certificate
of Incorporation nor the Bylaws of the Company currently excludes the Company
from the restrictions imposed by Section 203 of the Delaware General Corporation
Law.
DIRECTOR AND OFFICER INDEMNIFICATION
Section 12 of the Company's Certificate of Incorporation limits, to the
fullest extent permitted by the Delaware General Corporation Law ("DGCL"), as
amended, directors' personal liability to the Company or its stockholders for
monetary damages or breach of fiduciary duty. Section 145 of the DGCL enables a
corporation to eliminate or limit personal liability of members of its board of
directors for violations of their fiduciary duty of care. However, Delaware law
does not permit the elimination of a director's liability for engaging in
intentional misconduct or fraud, knowingly violating a law, for any transaction
from which the director derived an improper personal benefit or for unlawfully
paying a distribution. The statute has no effect on the availability of
equitable remedies, such as an injunction or rescission, for breach of fiduciary
duty.
Section 12 of the Company's Certificate and Article X of the Company's
Bylaws require indemnification of directors and officers of the Company to the
fullest extent permitted by the DGCL for claims against them in their official
capacities, including stockholders' derivative actions.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
TRANSFER AGENT
The Transfer Agent for the Common Stock and Common Stock is American
Stock Transfer & Trust Company, 40 Wall Street, New York, New York 10003.
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ITEM 2. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Method of
Number Description Filing
- ------- ----------- ---------
<S> <C> <C>
1 Specimen Certificate for the Common Stock Filed herewith.
2 Amended and Restated Certificate of Incorporation Filed herewith.
of the Registrant
3 Bylaws, as amended Filed herewith.
4 Certificate of Designation of 10% Cumulative Filed herewith.
Convertible Preferred Stock
</TABLE>
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
AMERICAS GAMING INTERNATIONAL, INC.
Dated: June 20, 1996 By /s/ Bill R. Williams
-------------------------------
Bill R. Williams, President
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EXHIBIT 1
COMMON STOCK
AGI
AMERICAS GAMING INTERNATIONAL, INC.
SHARES
SEE REVERSE FOR CERTAIN DEFINITIONS
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT
IS THE REGISTERED OWNER OF
FULLY PAID AND NONASSESSABLE SHARES, $.001 PAR VALUE, OF THE COMON STOCK OF
AMERICAS GAMING INTERNATIONAL, INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this Certificate properly
endorsed. This Certificate and the shares represented hereby are issued and
held subject to the laws of the State of Delaware and to the Certificate of
Incorporation and Bylaws of the Corporation, and amendments thereto, copies of
which are on file with the Transfer Agent. This Certificate is not valid unless
countersigned and registered by the Transfer Agent by the Registrar.
IN WITNESS WHEREOF said Corporation has caused this Certificate to be
signed by its duly authorized officers and its corporate seal to be hereunto
affixed.
Dated:
/s/ Connie L. Benger /s/ Bill R. Williams
- ------------------------------------- [SEAL] -----------------------------------
SECRETARY CHAIRMAN
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
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The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- ______________ Custodian _______________
(Cust) (Minor)
under Uniform Gifts to Minors
Act ____________________________________
(State)
UNIF TRF MIN ACT -- ______________ Custodian (until age ___)
(Cust)
________________ under Uniform Transfers
(Minor)
to Minors Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ___________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated ___________________________
X ______________________________________________
X ______________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON
THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By ____________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES ACT AND MAY NOT BE OFFERED,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION
OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
<PAGE> 1
EXHIBIT 2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
OXFORD CAPTIAL CORP.
The corporation was originally incorporated under the name Oxford
Capital Corp. and its original Certificate of Incorporation was filed on
November 18, 1993.
1. The name of the corporation is Americas Gaming International, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 in the
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
4. The total number of shares of capital stock which the Corporation
shall have authority to issue is thirty million (30,000,000) shares, divided
into twenty-five million (25,000,000) shares of common stock of the par value of
$.001 per share and five million (5,000,000) shares of preferred stock of the
par value of $.001 per share. As to the preferred stock of the Corporation, the
power to issue any shares of preferred stock of any class or any series of any
class and the designations, voting powers, preferences, and relative
participating, optional or other rights, if any, or the qualifications,
limitations, or restrictions thereof, shall be determined by the Board of
Directors.
5. Cumulative voting as provided for by Section 214 of Title 8 of the
General Corporation Law of Delaware shall not apply to this Corporation.
6. Preemptive rights as provided for by Section 102(b)(3) of Title 8 of
the General Corporation Law of Delaware shall not be granted and are hereby
expressly denied.
7. The Corporation shall be managed by the Board of Directors, which
shall exercise all powers conferred under the laws of the State of Delaware. The
Board of Directors shall have authority to make, alter or repeal the Bylaws of
the Corporation.
8. The Corporation shall have perpetual existence.
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9. The Board of Directors shall have sole authority to determine the
number of Directors serving on the Board, and may increase or decrease the
number of Directors from time to time by resolution duly adopted by such Board.
10. Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
11. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
12. No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that nothing contained herein shall
eliminate or limit the liability of a director of the Corporation to the extent
provided by applicable laws (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for liability imposed under Section 174 of Title 8 of the Delaware General
Corporation Law or successor provisions thereof, or (iv) for any transaction
from which the director derived an improper personal benefit. The limitation of
liability provided herein shall continue after a director has ceased to occupy
such position as to acts or omissions occurring during such director's term or
terms of office.
13. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
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14. This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Section 245 of the General
Corporation Law of the State of Delaware.
The undersigned, being the Vice President and Secretary, respectively,
of Americas Gaming International, Inc., for the purpose of amending and
restating its Certificate of Incorporation each do hereby declare and certify
that this is his act and deed and the facts herein stated are true, and
accordingly have hereunto their respective hands this 22nd day of November,
1995.
By: /s/Edward M. Topham
-----------------------------
Name: Edward M. Topham
Title: Vice President
ATTEST
By: /s/William R. Parsons
- -----------------------------
Name: William R. Parsons
Title: Secretary
3
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STATE OF ARIZONA )
) ss.
County of Maricopa )
Before me personally appeared Edward M. Topman and William R. Parsons,
the Vice President and Secretary, respectively, of Americas Gaming
International, Inc. a Delaware corporation, each of whom for and on behalf of
said corporation acknowledged to me this 22nd day of November, 1995 that the
foregoing instrument is the act and deed of said corporation and that the facts
stated therein are true.
/s/Dorothy Ann Gabbard
----------------------
Notary Public
My Commission Expires:
May 20, 1998
- ----------------------
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EXHIBIT 3
AMENDED AND RESTATED BYLAWS
OF
AMERICAS GAMING INTERNATIONAL, INC.
ARTICLE I
OFFICES
1. Principal Office.
The principal office shall be in the City of Reno, County of Washoe,
State of Nevada.
2. Other Offices.
The Corporation may also have offices at such other places both within
and without the State of Nevada as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
1. Annual Meeting.
The annual meeting of the shareholders shall be held on such date and
at such time as the Board of Directors shall determine, for the purpose of
electing Directors and for the transaction of such other business as may
properly come before the meeting. If the election of Directors is not held on
the day designated for any annual meeting of the stockholders, or any
adjournment thereof, the Directors shall cause the election to be held at a
special meeting of the stockholders as soon thereafter as convenient.
2. Special Meetings.
Special meetings of the stockholders may be called for any purpose or
purposes at any time by the Board of Directors, Chairman of the Board or the
President, and shall be called by the Chairman of the Board or the President at
the request of the holders of not less than one-tenth (1/10) of all outstanding
stock of the Corporation entitled to vote at such meeting, or otherwise as
provided by the Nevada General Corporation Law and Section 13 of Article II of
these Bylaws. Such request shall state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
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3. Place of Meetings.
Annual and special meetings of the stockholders may be held at such
time and place within or without the State of Nevada as shall be stated in the
notice of the meeting, or in a duly executed waiver of notice thereof.
4. Notice of Meeting.
Written notice stating the place, date and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered to each stockholder of record entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting. Notice may be delivered either personally or by first
class, certified or registered mail, postage prepaid, and signed by an officer
of the Corporation at the direction of the person or persons calling the
meeting. If mailed, notice shall be deemed to be delivered when mailed to the
stockholders at his or her address as it appears on the stock transfer books of
the Corporation. Delivery of any such notice to any officer of a corporation or
association, or to any member of a partnership shall constitute delivery of such
notice to such corporation, association or partnership. In the event of the
transfer of stock after delivery or mailing of the notice of and prior to the
holding of the meeting it shall not be necessary to deliver or mail notice of
the meeting to the transferee. Notice need not be given of an adjourned meeting
if the time and place thereof are announced at the meeting at which the
adjournment is taken, provided that such adjournment is for less than thirty
(30) days and further provided that a new record date is not fixed for the
adjourned meeting, in either of which events, written notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting, any business may be transacted which might
have been transacted at the meeting as originally noticed. A written waiver of
notice, whether given before or after the meeting to which it relates, shall be
equivalent to the giving of notice of such meeting to the stockholder or
stockholders signing such waiver. Attendance of a stockholder at a meeting shall
constitute a waiver of notice of such meeting, except when the stockholder
attends for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
5. Fixing Date for Determination of Stockholders Record.
In order that the Corporation may determine the stockholders entitled
to notice of and to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or to receive payment of any dividend or other distribution or allotment of any
rights, or to exercise any rights in respect of any other change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix in advance a record date, which shall not be more than sixty
(60) nor less than ten (10) days prior to the date of such meeting or such
action, as the case may be. If the Board of Directors has not fixed a record
date for determining the stockholders entitled to notice of and to vote at a
meeting of stockholders, the record date shall be at close of business on the
day next preceding the day on which notice is given, or if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. If the Board of Directors has not fixed a record date for determining the
stockholders entitled to express consent to corporate action in writing without
a meeting, when no prior action by the Board of Directors is necessary,
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the record date shall be the day on which the first written consent is expressed
by any stockholder. If the Board of Directors has not fixed a record date for
determining stockholders for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
6. Record of Stockholders.
The Secretary or other officer having charge of the stock transfer
books of the Corporation shall make, or cause to be made, at least ten (10) days
before every meeting of stockholders, a complete record of the stockholders
entitled to vote at a meeting of stockholders or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
7. Quorum and Manner of Acting.
At any meeting of the stockholders, the presence, in person or by
proxy, of the holders of a majority of the outstanding stock entitled to vote
shall constitute a quorum for the transaction of business except as otherwise
provided by the Nevada General Corporation Law or by the Articles of
Incorporation. All shares represented and entitled to vote on any single subject
matter which may be brought before the meeting shall be counted for quorum
purposes. Only those shares entitled to vote on a particular subject matter
shall be counted for the purpose of voting on that subject matter. Business may
be conducted once a quorum is present and may continue to be conducted until
adjournment sine die, notwithstanding the withdrawal or temporary absence of
stockholders leaving less than a quorum. Except as otherwise provided in the
Nevada General Corporation Law or the Articles of Incorporation, the affirmative
vote of the holders of a majority of the shares of stock then represented at the
meeting and entitled to vote thereat shall be the act of the stockholders;
provided, however, that if the shares of stock so represented are less than the
number required to constitute a quorum, the affirmative vote must be such as
would constitute a majority if a quorum were present, except that the
affirmative vote of the holders of a majority of the shares of stock then
present is sufficient in all cases to adjourn a meeting.
8. Voting of Shares of Stock.
Each stockholder shall be entitled to one vote or corresponding
fraction thereof for each share of stock or fraction thereof standing in his,
her or its name on the books of the Corporation on the record date. A
stockholder may vote either in person or by valid proxy, as defined in Section
12 of this Article II, executed in writing by the stockholder or by his, her or
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its duly authorized attorney in fact. Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of any corporation to vote stock, including but not limited to its own
stock, when held by it in a fiduciary capacity. Shares of stock standing in the
name of another corporation may be voted by such officer, agent or proxy as the
bylaws of such other corporation may prescribe or, in the absence of such
provision, as the Board of Directors of such other corporation may determine.
Unless demanded by a stockholder present in person or by proxy at any meeting of
the stockholders and entitled to vote thereat, or unless so directed by the
chairman of the meeting, the vote thereat on any question need not be by ballot.
If such demand or direction is made, a vote by ballot shall be taken, and each
ballot shall be signed by the stockholder voting, or by his or her proxy, and
shall state the number of shares voted.
9. Organization.
At each meeting of the stockholders, the Chairman of the Board, or, if
he or she is absent therefrom, the President, or, if he or she is absent
therefrom, another officer of the Corporation chosen as chairman of such meeting
by stockholders holding a majority of the shares present in person or by proxy
and entitled to vote thereat, or, if all the officers of the Corporation are
absent therefrom, a stockholder of record so chosen, shall act as chairman of
the meeting and preside thereat. The Secretary, or, if he or she is absent from
the meeting or is required pursuant to the provisions of this Section 9 to act
as chairman of such meeting, the person (who shall be an Assistant Secretary, if
any and if present) whom the chairman of the meeting shall appoint shall act as
secretary of the meeting and keep the minutes thereof.
10. Order of Business.
The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting, but the order of business may be
changed by the vote of stockholders holding a majority of the shares present in
person or by proxy at such meeting and entitled to vote thereat.
11. Voting.
At all meetings of stockholders, each stockholder entitled to vote
thereat shall have the right to vote, in person or by proxy, and shall have, for
each share of stock registered in his, her or its name, the number of votes
provided by the Articles of Incorporation or these Bylaws in respect of stock of
such class. Stockholders shall not have cumulative voting rights with respect to
the election of Directors.
12. Voting by Proxy.
At any meeting of the stockholders, any stockholder may be represented
and vote by a proxy or proxies appointed by an instrument in writing, In the
event that any such instrument in writing shall designate two (2) or more
persons to act as proxies, a majority of such persons present at the meeting,
or, if only one shall be present, then that one shall have and may
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exercise all of the powers conferred by such written instrument upon all of the
persons so designated unless the instrument shall otherwise provide. No such
proxy shall be valid after the expiration of six (6) months from the date of its
execution, unless coupled with an interest, or unless the person executing it
specifies therein the length of time for which it is to continue in force, which
in no case shall exceed seven (7) years from the date of its execution. Subject
to the above, any proxy duly executed is not revoked and continues in full force
and effect until an instrument revoking it or a duly executed proxy bearing a
later date is filed with the Secretary of the Corporation.
13. Action By Stockholders Without a Meeting.
Any action required or permitted to be taken at a meeting of the
stockholders may be taken without a meeting, without notice and without a vote,
if a consent in writing, setting forth the action so taken, is signed by the
holders of outstanding stock having not less than the number of votes that would
have been necessary to authorize such action at a meeting at which all shares
entitled to vote were present and voted. Such written consent shall not be valid
unless it is (a) signed by the stockholder, (b) dated, as to the date of such
stockholder's signature, and (c) delivered to the Corporation personally or by
certified or registered mail, return receipt requested, to the Corporation's
principal place of business, principal office in the State of Nevada or officer
or agent who has custody of the book in which the minutes of meetings of
stockholders are recorded, within sixty (60) days after the earliest date that a
stockholder signed the written consent. Prompt notice of the taking of any such
action shall be given to any such stockholders entitled to vote who have not so
consented in writing.
ARTICLE III
Board of Directors
1. General Powers.
The business and affairs of the Corporation shall be managed by the
Board of Directors.
2. Number, Term of Office and Qualifications.
Subject to the requirements of the Nevada General Corporation Law or
the Articles of Incorporation, the Board of Directors may from time to time
determine the number of Directors. Until the Board of Directors shall otherwise
determine, the number of Directors shall be that number comprising the initial
Board of Directors as set forth in the Articles of Incorporation. Each director
shall hold office until his or her successor is duly elected or until his or her
earlier death or resignation or removal in the manner hereinafter provided.
Directors need not be stockholders.
3. Place of Meeting.
The Board of Directors may hold its meetings, either within or without
the State of Nevada, at such place or places as it may from time to time by
resolution determine or as shall be designated in any notices or waivers of
notice thereof. Any such meeting, whether regular
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or special, may be held by telephone conference or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting in such manner shall constitute
presence in person at such meeting. Each person participating in a telephonic
meeting shall sign the minutes thereof, which may be signed in counterparts.
4. Annual Meetings.
As soon as practicable after each annual election of Directors and on
the same day, the Board of Directors shall meet for the purpose of organization
and the transaction of other business at the place where regular meetings of the
Board of Directors are held, and no notice of such meeting shall be necessary in
order to legally hold the meeting, provided that a quorum is present. If such
meeting is not held as provided above, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for a
special meeting of the Board of Directors, or in the event of waiver of notice
as specified in the written waiver of notice.
5. Regular Meetings.
Regular meetings of the Board of Directors may be held without notice
at such times as the Board of Directors shall from time to time by resolution
determine.
6. Special Meetings; Notice.
Special meetings of the Board of Directors shall be held, either within
or without the State of Nevada, whenever called by the Chairman of the Board or
a majority of the Directors at the time in office. Notice shall be given, in the
manner hereinafter provided, of each such special meeting, which notice shall
state the time and place of such meeting, but need not state the purposes
thereof. Except as otherwise provided in Section 9 of this Article III, notice
of each such meeting shall be mailed to each Director, addressed to him or her
at his or her residence or usual place of business, at least two (2) days before
the day on which such meeting is to be held, or shall be sent addressed to him
or her at such place by facsimile, cable, wireless or other form of recorded
communication or delivered personally or by telephone not later than the day
before the day on which such meeting is to be held. A written waiver of notice,
whether given before or after the meeting to which it relates, shall be
equivalent to the giving of notice of such meeting to the Director or Directors
signing such waiver. Attendance of a Director at a special meeting of the Board
of Directors shall constitute a waiver of notice of such meeting, except when he
or she attends the meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
7. Quorum and Manner of Acting.
A majority of the whole Board of Directors shall be present in person
at any meeting of the Board of Directors in order to constitute a quorum for the
transaction of business at such meeting, and except as otherwise specified in
these Bylaws, and except also as otherwise expressly provided by the Nevada
General Corporation Law, the vote of a majority of the Directors present at any
such meeting at which a quorum is present shall be the act of the Board
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of Directors. In the absence of a quorum from any such meeting, a majority of
the Directors present thereat may adjourn such meeting from time to time to
another time or place, without notice other than announcement at the meeting,
until a quorum shall be present thereat. The Directors shall act only as a Board
of Directors and the individual Directors shall have no power as such.
8. Organization.
At each meeting of the Board of Directors, the Chairman of the Board,
or, if he or she is absent therefrom, the President, or if he or she is absent
therefrom, a Director chosen by a majority of the Directors present thereat,
shall act as chairman of such meeting and preside thereat. The Secretary, or if
he or she is absent, the person (who shall be an Assistant Secretary, if any and
if present) whom the chairman of such meeting shall appoint, shall act as
Secretary of such meeting and keep the minutes thereof.
9. Action by Directors Without a Meeting.
Any action required or permitted to be taken at a meeting of the Board
of Directors may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, is signed by
all Directors and such consent is filed with the minutes of the proceedings of
the Board of Directors.
10. Resignations.
Any Director may resign at any time by giving written notice of his or
her resignation to the Corporation. Any such resignation shall take effect at
the time specified therein, or, if the time when it shall become effective is
not specified therein, it shall take effect immediately upon its receipt by the
Chairman of the Board, the President or the Secretary; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
11. Removal of Directors.
Directors may be removed, with or without cause, as provided from time
to time by the Nevada General Corporation Law as then in effect.
12. Vacancies.
Vacancies and newly created directorships resulting from any increase
in the authorized number of Directors elected by all of the stockholders having
the right to vote as a single class may be filled by a majority of the Directors
then in office, although less than a quorum, or by a sole remaining Director. If
at any time, by reason of death or resignation or other cause, the Corporation
has no Directors in office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, may call a special meeting
of stockholders for the purpose of filling vacancies in the Board of Directors.
If one or more Directors shall resign from the Board of Directors, effective at
a future date, a majority of the Directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or
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vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each Director so chosen shall hold office as
provided in this section in the filling of other vacancies.
13. Compensation.
Unless otherwise expressly provided by resolution adopted by
the Board of Directors, no Director shall receive any compensation for his or
her services as a Director. The Board of Directors may at any time and from time
to time by resolution provide that the Directors shall be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director. In addition, the Board of Directors may at any time and from time to
time by resolution provide that Directors shall be paid their actual expenses,
if any, of attendance at each meeting of the Board of Directors. Nothing in this
section shall be construed as precluding any Director from serving the
Corporation in any other capacity and receiving compensation therefor, but the
Board of Directors may by resolution provide that any Director receiving
compensation for his or her services to the Corporation in any other capacity
shall not receive additional compensation for his or her services as a Director.
ARTICLE IV
OFFICERS
1. Number.
The Corporation shall have the following officers: a Chairman
of the Board (who shall be a Director), a President, a Vice President, a
Secretary and a Treasurer. At the discretion of the Board of Directors, the
Corporation may also have additional Vice Presidents, one or more Assistant Vice
Presidents, one or more Assistant Secretaries and one or more Assistant
Treasurers. Any two (2) or more offices may be held by the same person.
2. Election and Term of Office.
The officers of the Corporation shall be elected annually by
the Board of Directors. Each such officer shall hold office until his or her
successor is duly elected or until his or her earlier death or resignation or
removal in the manner hereinafter provided.
3. Agents.
In addition to the officers mentioned in Section 1 of this
Article IV, the Board of Directors may appoint such agents as the Board of
Directors may deem necessary or advisable, each of which agents shall have such
authority and perform such duties as are provided in these Bylaws or as the
Board of Directors may from time to time determine. The Board of Directors may
delegate to any officer or to any committee the power to appoint or remove any
such agents.
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4. Removal.
Any officer may be removed, with or without cause, at any time
by resolution adopted by a majority of the whole Board of Directors.
5. Resignations.
Any officer may resign at any time by giving written notice of
his or her resignation to the Board of Directors, the Chairman of the Board, the
President or the Secretary. Any such resignation shall take effect at the times
specified therein, or, if the time when it shall become effective is not
specified therein, it shall take effect immediately upon its receipt by the
Board of Directors, the Chairman of the Board, the President or the Secretary;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
6. Vacancies.
A vacancy in any office due to death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of
the term thereof by the Board of Directors.
7. Chairman of the Board.
The Chairman of the Board shall be the chief executive officer
of the Corporation and shall have, subject to the control of the Board of
Directors, general and active supervision and direction over the business and
affairs of the Corporation and over its several officers. The Chairman of the
Board shall: (a) preside at all meetings of the stockholders and at all meetings
of the Board of Directors; (b) make a report of the state of the business of the
Corporation at each annual meeting of the stockholders; (c) see that all orders
and resolutions of the Board of Directors are carried into effect; (d) sign,
with the Secretary or an Assistant Secretary, certificates for stock of the
Corporation; (e) have the right to sign, execute and deliver in the name of the
Corporation all deeds, mortgages, bonds, contracts or other instruments
authorized by the Board of Directors, except in cases where the signing,
execution or delivery thereof is expressly delegated by the Board of Directors
or by these Bylaws to some other officer or agent of the Corporation or where
any of them are required by law otherwise to be signed, executed or delivered;
and (f) have the right to cause the corporate seal, if any, to be affixed to any
instrument which requires it. In general, the Chairman of the Board shall
perform all duties incident to the office of the Chairman of the Board and such
other duties as from time to time may be assigned to him or her by the Board of
Directors.
8. President.
The President shall have, subject to the control of the Board
of Directors and the Chairman of the Board, general and active supervision and
direction over the business and affairs of the Corporation and over its several
officers. At the request of the Chairman of the Board, or in case of his or her
absence or inability to act, the President shall perform the duties of the
Chairman of the Board and, when so acting, shall have all the powers of, and be
subject to all the restrictions upon, the Chairman of the Board. He may sign,
with the Secretary or an Assistant Secretary, certificates for stock of the
Corporation. He may sign, execute and deliver
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in the name of the Corporation all deeds, mortgages, bonds, contracts or other
instruments authorized by the Board of Directors, except in cases where the
signing, execution or delivery thereof is expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation
or where any of them are required by law otherwise to be signed, executed or
delivered, and he may cause the corporate seal, if any, to be affixed to any
instrument which requires it. In general, the President shall perform all duties
incident to the office of the President and such other duties as from time to
time may be assigned to him or her by the Board of Directors or the Chairman of
the Board.
9. Vice President.
The Vice President and any additional Vice Presidents shall
have such powers and perform such duties as the Chairman of the Board, the
President or the Board of Directors may from time to time prescribe and shall
perform such other duties as may be prescribed by these Bylaws. At the request
of the President, or in case of his or her absence or inability to act, the Vice
President shall perform the duties of the President and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
President.
10. Secretary.
The Secretary shall: (a) record all the proceedings of the
meetings of the stockholders, the Board of Directors and the Executive
Committee, if any, in one or more books kept for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these Bylaws or as
required by law; (c) be the custodian of all contracts, deeds, documents, all
other indicia of title to properties owned by the Corporation and of its other
corporate records (except accounting records) and of the corporate seal, if any,
and affix such seal to all documents the execution of which on behalf of the
Corporation under its seal is duly authorized; (d) sign, with the Chairman of
the Board, the President, the Executive Vice President or a Vice President,
certificates for stock of the Corporation; (e) have charge, directly or through
the transfer clerk or transfer clerks, transfer agent or transfer agents and
registrar or registrars appointed as provided in Section 3 of Article VII of
these Bylaws, of the issue, transfer and registration of certificates for stock
of the Corporation and of the records thereof, such records to be kept in such
manner as to show at any time the amount of the stock of the Corporation issued
and outstanding, the manner in which and the time when such stock was paid for,
the names, alphabetically arranged, and the addresses of the holders of record
thereof, the number of shares held by each, and the time when each became a
holder of record; (f) upon request, exhibit or cause to be exhibited at all
reasonable times to any Director such records of the issue, transfer and
registration of the certificates for stock of the Corporation; (g) see that the
books, reports, statements, certificates and all other documents and records
required by law are properly kept and filed; and (h) see that the duties
prescribed by Section 6 of Article II of these Bylaws are performed. In general,
the Secretary shall perform all duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him or her by the
Chairman of the Board, the President or the Board of Directors.
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11. Treasurer.
If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum and with
such surety or sureties as the Board of Directors shall determine. The Treasurer
shall: (a) have charge and custody of, and be responsible for, all funds,
securities, notes and valuable effects of the Corporation; (b) receive and give
receipt for moneys due and payable to the Corporation from any sources
whatsoever; (c) deposit all such moneys to the credit of the Corporation or
otherwise as the Board of Directors, the Chairman of the Board or the President
shall direct in such banks, trust companies or other depositories as shall be
selected in accordance with the provisions of Article VI of these Bylaws; (d)
cause such funds to be disbursed by checks or drafts on the authorized
depositories of the Corporation signed as provided in Article VI of these
Bylaws; (e) be responsible for the accuracy of the amounts of, and cause to be
preserved proper vouchers for, all moneys so disbursed; (f) have the right to
require from time to time reports or statements giving such information as he or
she may desire with respect to any and all financial transactions of the
Corporation from the officers or agents transacting the same; (g) render to the
Chairman of the Board, the President or the Board of Directors, whenever they,
respectively, shall request him or her so to do, an account of the financial
condition of the Corporation and of all his or her transactions as Treasurer;
and (h) upon request, exhibit or cause to be exhibited at all reasonable times
the cash books and other records to the Chairman of the Board, the President or
any of the Directors of the Corporation. In general, the Treasurer shall perform
all duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him or her by the Chairman of the Board, the
President or the Board of Directors.
12. Assistant Officers.
Any persons elected as assistant officers shall assist in the
performance of the duties of the designated office and such other duties as
shall be assigned to them by any Vice President, the Secretary or the Treasurer,
as the case may be, or by the Board of Directors, the Chairman of the Board, or
the President.
13. Compensation.
The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors.
ARTICLE V
COMMITTEES
1. Executive Committee; How Constituted and Powers.
The Board of Directors, by resolution adopted by a majority of
the whole Board of Directors, may designate one or more of the Directors then in
office, who shall include the Chairman of the Board, to constitute an Executive
Committee, which shall have and may exercise between meetings of the Board of
Directors all the delegable powers of the Board of Directors to the extent not
expressly prohibited by the Nevada General Corporation Law or by
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resolution of the Board of Directors. The Board of Directors may designate one
or more Directors as alternate members of the Committee who may replace any
absent or disqualified member at any meeting of the Committee. Each member of
the Executive Committee shall continue to be a member thereof only during the
pleasure of a majority of the whole Board of Directors.
2. Executive Committee; Organization.
The Chairman of the Board shall act as chairman at all
meetings of the Executive Committee and the Secretary shall act as secretary
thereof. In case of the absence from any meeting of the Chairman of the Board or
the Secretary, the Committee may appoint a chairman or secretary, as the case
may be, of the meeting.
3. Executive Committee; Meetings.
Regular meetings of the Executive Committee may be held
without notice on such days and at such places as shall be fixed by resolution
adopted by a majority of the Committee and communicated to all its members.
Special meetings of the Committee shall be held whenever called by the Chairman
of the Board or a majority of the members thereof then in office. Notice of each
special meeting of the Committee shall be given in the manner provided in
Section 6 of Article III of these Bylaws for special meetings of the Board of
Directors. Notice of any such meeting of the Executive Committee, however, need
not be given to any member of the Committee if waived by him or her in writing
or by facsimile, cable, wireless or other form of recorded communication either
before or after the meeting, or if he or she is present at such meeting, except
when he or she attends for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully called or convened. Subject
to the provisions of this Article V, the Committee, by resolution adopted by a
majority of the whole Committee, shall fix its own rules of procedure and it
shall keep a record of its proceedings and report them to the Board of Directors
at the next regular meeting thereof after such proceedings have been taken. All
such proceedings shall be subject to revision or alteration by the Board of
Directors; provided, however, that third parties shall not be prejudiced by any
such revision or alteration.
4. Executive Committee; Quorum and Manner of Acting.
A majority of the Executive Committee shall constitute a
quorum for the transaction of business, and, except as specified in Section 3 of
this Article V, the act of a majority of those present at a meeting thereof at
which a quorum is present shall be the act of the Committee. The members of the
Committee shall act only as a committee, and the individual members shall have
no power as such.
5. Other Committees.
The Board of Directors, by resolution adopted by a majority of
the whole Board, may constitute other committees, which shall in each case
consist of one or more of the Directors and, at the discretion of the Board of
Directors, such officers who are not Directors. The Board of Directors may
designate one or more Directors or officers who are not Directors as alternate
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members of any committee who may replace any absent or disqualified member at
any meeting of the committee. Each such committee shall have and may exercise
such powers as the Board of Directors may determine and specify in the
respective resolutions appointing them; provided, however, that (a) unless all
of the members of any committee shall be Directors, such committee shall not
have authority to exercise any of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and (b) if any
committee shall have the power to determine the amounts of the respective fixed
salaries of the officers of the Corporation or any of them, such committee shall
consist of not less than three (3) members and none of its members shall have
any vote in the determination of the amount that shall be paid to him or her as
a fixed salary. A majority of all the members of any such committee may fix its
rules of procedure, determine its action and fix the time and place of its
meetings and specify what notice thereof, if any, shall be given, unless the
Board of Directors shall otherwise by resolution provide.
6. Committee Minutes.
The Executive Committee and any other committee shall keep
regular minutes of their proceedings and report the same to the Board of
Directors when required.
7. Action by Committees Without a Meeting.
Any action required or permitted to be taken at a meeting of
the Executive Committee or any other committee of the Board of Directors may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, is signed by all members of the
committee and such consent is filed with the minutes of the proceedings of the
committee.
8. Resignations.
Any member of the Executive Committee or any other committee
may resign therefrom at any time by giving written notice of his or her
resignation to the Chairman of the Board, the President or the Secretary. Any
such resignation shall take effect at the time specified therein, or if the time
when it shall become effective is not specified therein, it shall take effect
immediately upon its receipt by the Chairman of the Board or the Secretary; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
9. Vacancies.
Any vacancy in the Executive Committee or any other committee
shall be filled by the vote of a majority of the whole Board of Directors.
10. Compensation.
Unless otherwise expressly provided by resolution adopted by
the Board of Directors, no member of the Executive Committee or any other
committee shall receive any compensation for his or her services as a committee
member. The Board of Directors may at any time and from
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time to time by resolution provide that committee members shall be paid a fixed
sum for attendance at each committee meeting or a stated salary as a committee
member. In addition, the Board of Directors may at any time and from time to
time by resolution provide that such committee members shall be paid their
actual expenses, if any, of attendance at each committee meeting. Nothing in
this section shall be construed as precluding any committee member from serving
the Corporation in any other capacity and receiving compensation therefor, but
the Board of Directors may by resolution provide that any committee member
receiving compensation for his or her services to the Corporation in any other
capacity shall not receive additional compensation for his or her services as a
committee member.
11. Dissolution of Committees; Removal of Committee Members.
The Board of Directors, by resolution adopted by a majority of
the whole Board, may, with or without cause, dissolve the Executive Committee or
any other committee, and, with or without cause, remove any member thereof.
ARTICLE VI
MISCELLANEOUS
1. Execution of Contracts.
Except as otherwise required by law or by these Bylaws, any
contract or other instrument may be executed and delivered in the name of the
Corporation and on its behalf by the Chairman of the Board, the President, or
any Vice President. In addition, the Board of Directors may authorize any other
officer of officers or agent or agents to execute and deliver any contract or
other instrument in the name of the Corporation and on its behalf, and such
authority may be general or confined to specific instances as the Board of
Directors may by resolution determine.
2. Attestation.
Any Vice President, the Secretary, or any Assistant Secretary
may attest the execution of any instrument or document by the Chairman of the
Board, the President, or any other duly authorized officer or agent of the
Corporation and may affix the corporate seal, if any, in witness thereof, but
neither such attestation nor the affixing of a corporate seal shall be requisite
to the validity of any such document or instrument.
3. Checks, Drafts.
All checks, drafts, orders for the payment of money, bills of
lading, warehouse receipts, obligations, bills of exchange and insurance
certificates shall be signed or endorsed (except endorsements for collection for
the account of the Corporation or for deposit to its credit, which shall be
governed by the provisions of Section 4 of this Article VI) by such officer or
officers or agent or agents of the Corporation and in such manner as shall from
time to time be determined by resolution of the Board of Directors.
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4. Deposits.
All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise as the
Board of Directors, the Chairman of the Board, or the President shall direct in
general or special accounts at such banks, trust companies, savings and loan
associations, or other depositories as the Board of Directors may select or as
may be selected by any officer or officers or agent or agents of the Corporation
to whom power in that respect has been delegated by the Board of Directors. For
the purpose of deposit and for the purpose of collection for the account of the
Corporation, checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation may be endorsed, assigned and delivered
by any officer or agent of the Corporation. The Board of Directors may make such
special rules and regulations with respect to such accounts, not inconsistent
with the provisions of these Bylaws, as it may deem expedient.
5. Proxies in Respect of Stock or Other Securities of Other
Corporations.
Unless otherwise provided by resolution adopted by the Board
of Directors, the Chairman of the Board, the President, or any Vice President
may exercise in the name and on behalf of the Corporation the powers and rights
which the Corporation may have as the holder of stock or other securities in any
other corporation, including without limitation the right to vote or consent
with respect to such stock or other securities.
6. Fiscal Year.
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
ARTICLE VII
STOCK
1. Certificates.
Every holder of stock in the Corporation shall be entitled to
have a certificate signed by or in the name of the Corporation by the Chairman
of the Board, the President, or a Vice President and by the Secretary or an
Assistant Secretary. The signatures of such officers upon such certificate may
be facsimiles if the certificate is manually signed by a transfer agent or
registered by a registrar, other than the Corporation itself or one of its
employees. If any officer who has signed or whose facsimile signature has been
placed upon a certificate has ceased for any reason to be such officer prior to
issuance of the certificate, the certificate may be issued with the same effect
as if that person were such officer at the date of issue. All certificates for
stock of the Corporation shall be consecutively numbered, shall state the number
of shares represented thereby and shall otherwise be in such form as shall be
determined by the Board of Directors, subject to such requirements as are
imposed by the Nevada General Corporation Law. The names and addresses of the
persons to whom the shares represented by certificates are issued shall be
entered on the stock transfer books of the Corporation, together with the number
of shares and the date of issue, and in the case of cancellation, the date of
cancellation. Certificates surrendered to the Corporation for transfer shall be
canceled, and no new certificate
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shall be issued in exchange for such shares until the original certificate has
been canceled; except that in the case of a lost, stolen, destroyed or mutilated
certificate, a new certificate may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may prescribe.
2. Transfer of Stock.
Transfers of shares of stock of the Corporation shall be made
only on the stock transfer books of the Corporation by the holder of record
thereof or by his or her legal representative or attorney in fact, who shall
furnish proper evidence of authority to transfer to the Secretary, or a transfer
clerk or a transfer agent, and upon surrender of the certificate or certificates
for such shares properly endorsed and payment of all taxes thereon. The person
in whose name shares of stock stand on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the Corporation.
3. Regulations.
The Board of Directors may make such rules and regulations as
it may deem expedient, not inconsistent with these Bylaws, concerning the issue,
transfer and registration of certificates for stock of the Corporation. The
Board of Directors may appoint, or authorize any officer or officers or any
committee to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
4. Lost Certificates.
The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of the fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
5. Registered Stockholders.
The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and hold liable for calls and assessments
a person registered on its books as the owner of shares, and shall not be bound
to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Nevada.
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ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares of stock in the manner
and upon the terms and conditions provided in the Nevada General Corporation
Law.
ARTICLE IX
SEAL
A corporate seal shall not be requisite to the validity of any
instrument executed by or on behalf of the Corporation. Nevertheless, if in any
instance a corporate seal is used, the same shall be in the form of a circle and
shall bear the full name of the Corporation and the year and state of
incorporation, or words and figures of similar import.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
1. General.
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with the action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. Derivative Actions.
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint
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venture, trust or other enterprise, against expenses (including amounts paid in
settlement and attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged by a court of competent jurisdiction after exhaustion of all
appeals therefrom to be liable to the Corporation or for amounts paid in
settlement to the Corporation unless and only to the extent that the court in
which such action or suit was brought or other court of competent jurisdiction
shall determine upon application that, in view of all the circumstances of the
case, the person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
3. Indemnification in Certain Cases.
To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this Article X, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
4. Procedure.
Any indemnification under Sections 1 and 2 of this Article X
(unless ordered by a court or advanced pursuant to Section 5 of this Article X)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances. Such determination shall be made (a) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (b) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by the
stockholders.
5. Advances for Expenses.
Expenses incurred by a director, officer, employee, or agent
of the Corporation in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation as they are incurred and in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
the amount if it shall be ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the Corporation as
authorized in this Article X.
6. Rights Not-Exclusive.
The indemnification and advancement of expenses authorized in
or ordered by a court pursuant to the other Sections of this Article X shall not
be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any law, bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, for either an action in
his official capacity or an action in another capacity while holding such
office,
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except that indemnification, unless ordered by a court pursuant to Section 2 of
this Article X or for advancement of expenses made pursuant to Section 5 of this
Article X, may not be made to or on behalf of any director or officer if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action.
7. Insurance.
The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and liability and expenses incurred by him in any such capacity, or arising
out of his status as such, whether or not the Corporation would have the power
to indemnify him against such liability under the provisions of this Article X.
8. Definition of Corporation.
For the purposes of this Article X, references to "the
Corporation" include, in addition to the resulting corporation, all constituent
corporations (including any constituent of a constituent) absorbed in
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees and
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article X with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
9. Other Definitions.
For purposes of this Article X, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article X.
10. Continuation of Rights.
The indemnification and advancement of expenses provided by,
or granted pursuant to this Article X shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person. No amendment
to or repeal of this Article X shall apply to or have any effect on, the rights
of
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any director, officer, employee or agent under this Article X which rights come
into existence by virtue of acts or omissions of such director, officer,
employee or agent occurring prior to such amendment or repeal.
ARTICLE XI
AMENDMENTS
These Bylaws may be repealed, altered or amended by the
affirmative vote of the holders of a majority of the stock issued and
outstanding and entitled to vote at any meeting of Stockholders or by resolution
duly adopted by the affirmative vote of not less than a majority of the
Directors in office at any annual or regular meeting of the Board of Directors
or at any special meeting of the Board of Directors if notice of the proposed
repeal, alteration or amendment be contained in the notice of such special
meeting, and new Bylaws may be adopted, at any time only by the Board of
Directors.
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EXHIBIT 4
CERTIFICATE OF DESIGNATION OF RIGHTS, PREFERENCES
AND PRIVILEGES OF
10% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
AMERICAS GAMING INTERNATIONAL, INC.
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware:
We, Bill R. Williams, the President, and Connie L. Benger, the
Secretary, respectively, of Americas Gaming International, Inc., a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), in accordance with the provisions of Section 103
thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the Corporation, as
amended, the said Board of Directors on February 14, 1996, adopted the
following resolution creating a series of shares of Preferred Stock:
"RESOLVED, that pursuant to the authority vested in the Board
of Directors of the Corporation by the Certificate of Incorporation, as
amended (the "Amended Certificate"), the Board of Directors does hereby
provide for the issuance of a series of Preferred Stock, $.001 par
value, of the Corporation, to be designated "10% Cumulative Convertible
Preferred Stock", consisting of 1,000,000 shares and, to the extent
that the designations, powers, preferences and relative and other
special rights and the qualifications, limitations and restrictions of
the 10% Cumulative Convertible Preferred Stock are not stated and
expressed in the Amended Certificate, does hereby fix and herein state
and express such designations, powers, preferences and relative and
other special rights and the qualifications, limitations and
restrictions thereof, as follows:
1. Designation and Amount. The shares of such series shall be
designated as "10% Cumulative Convertible Preferred Stock", par value
$.001 per share (hereinafter referred to as the "10% Cumulative
Convertible Preferred"), and the number of shares constituting such
series shall be 1,000,000.
2. Ranking. The 10% Cumulative Convertible Preferred shall
rank senior to the common stock ("Common Stock") of the Corporation in
dividend rights and liquidation preference.
<PAGE> 2
3. Dividends. Subject to the superior rights of the holders of
any class or series of preferred stock ranking superior to the 10%
Cumulative Convertible Preferred with respect to dividends and
distributions:
3.1 Dividend Amount. The holders of the 10%
Cumulative Convertible Preferred shall be entitled to receive, out of
any assets of the Corporation legally available therefor, cumulative
dividends at a rate of 10% per annum (the "Dividend Rate") on the total
dollar amount of the consideration paid (the "Original Purchase Price")
to the Corporation for each share of 10% Cumulative Convertible
Preferred (the "Dividend Amount"). Such dividends shall be payable
quarterly on the Quarterly Dividend Payment Date (as hereinafter
defined), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share of 10% Cumulative Convertible Preferred.
Dividends on each share of 10% Cumulative Convertible Preferred shall
accrue and be cumulative from the date of issuance thereof to the
Redemption Date (as hereinafter defined) or the Conversion Date (as
hereinafter defined) of each such share, as applicable and whichever
first occurs, whether or not there shall be profits, surplus or other
funds of the Corporation legally available for the payment of such
dividends at the time such dividends shall accrue or become due and
whether or not such dividends are declared.
3.2 Quarterly Dividend Payment Date. Dividends shall
be payable on each share of 10% Cumulative Convertible Preferred on the
first day of each July, October, January and April of each year (the
"Quarterly Dividend Payment Date"), commencing July 1, 1996, to the
holder of record on the date thirty (30) days prior to such Quarterly
Dividend Payment Date.
3.3 Method of Payment. Dividends on the 10%
Cumulative Convertible Preferred shall be paid in cash. An amount of
cash from the proceeds of the sale of the 10% Cumulative Convertible
Preferred that is sufficient to pay dividends on the 10% Cumulative
Convertible Preferred for the first four (4) quarters following the
Original Issue Date shall be held in an escrow account for that
purpose. Following the first four Quarterly Dividend Payment Dates, the
Corporation shall pay all future dividends from funds of the
Corporation legally available therefor. If there are not legally
available funds sufficient to pay the entire Dividend Amount owing, the
legally available funds shall be distributed ratably to the record
holders and the balance of the Dividend Amount shall be in arrears and
shall be paid as soon as sufficient legal funds become available.
4. Voting Rights. The holders of 10% Cumulative Convertible
Preferred shall have the following voting rights:
4.1 Separate Class Voting. The Corporation shall not,
without first obtaining the affirmative vote or written consent of the
holders of not less than a majority of the outstanding shares of the
10% Cumulative Convertible Preferred voting as a separate class:
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(a) alter or change any rights, privileges or
preferences of the 10% Cumulative Convertible Preferred;
(b) increase or decrease the authorized number of
shares of 10% Cumulative Convertible Preferred; or
(c) amend or waive any provision of the Amended
Certificate or Bylaws of the Corporation relative to the 10% Cumulative
Convertible Preferred.
4.2 Other Voting Rights. Except as set forth herein and except
where voting rights are required by law, holders of 10% Cumulative Convertible
Preferred shall have no voting rights and their consent shall not be required
for taking any corporate action.
5. Certain Restrictions. Whenever quarterly dividends or other
dividends or distributions payable on the 10% Cumulative Convertible Preferred
as provided in Section 3 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of 10%
Cumulative Convertible Preferred outstanding shall have been paid in full or set
aside for payment, the Corporation shall not:
(a) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for consideration
any shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the 10% Cumulative Convertible Preferred;
(b) declare or pay dividends on, make any other
distributions on any shares of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the 10% Cumulative
Convertible Preferred, except dividends paid ratably on the 10% Cumulative
Convertible Preferred and all such parity stock on which dividends are payable
or in arrears in proportion to the total amounts to which the holders of all
such shares are then entitled; or
(c) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the 10% Cumulative Convertible
Preferred, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the 10% Cumulative Convertible
Preferred.
6. Reacquired Shares. Any shares of 10% Cumulative Convertible
Preferred purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
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All such shares shall upon their cancellation become authorized but unissued
shares of the Corporation's Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and restrictions on issuance set
forth herein.
7. Conversion
7.1 Right to Convert. The holders of the 10% Cumulative Convertible
Preferred shall have the right, at their option, to convert any number of shares
of 10% Cumulative Convertible Preferred into shares of Common Stock, in
accordance with the procedures set forth in this Section 7 and subject to the
terms and conditions of this Section 7 at any time.
7.2 Conversion Ratio. Each share of 10% Cumulative Convertible
Preferred to be converted shall be convertible at the office of the transfer
agent of the Corporation, as designated from time to time by the Corporation
(the "Transfer Agent"), and at such other office or offices, if any, as the
Board of Directors of the Corporation may designate, into the number of fully
paid and nonassessable shares of Common Stock determined by dividing the
Original Purchase Price (plus accrued but unpaid dividends) by $3.333 (the
"Conversion Price").
7.3 Conversion Notice. In order to convert shares of the 10% Cumulative
Convertible Preferred, the holder thereof shall deliver to the Corporation's
Transfer Agent a notice of intention to convert such shares and dividends
together with the certificate or certificates for the 10% Cumulative Convertible
Preferred to be converted, duly endorsed to the Corporation or in blank, or with
stock power(s) attached. Shares of the 10% Cumulative Convertible Preferred
shall be deemed to have been converted on the day on which notice of intention
to convert (including all required accompanying materials as set forth above)
was delivered to the Transfer Agent (the "Conversion Date") and the person or
persons entitled to receive the Common Stock issuable upon such conversion shall
be treated for all purposes, including voting such Common Stock, as the record
holder or holders of such Common Stock at such time. As promptly as practicable
on or after the Conversion Date, the Corporation's Transfer Agent shall issue
and deliver to the record holder or holders of such 10% Cumulative Convertible
Preferred a certificate or certificates for the number of shares of Common Stock
issuable upon such conversion, to the person or persons entitled to receive the
same. No fractional shares will be issued, and any conversion shall be rounded
to the nearest whole number of shares of Common Stock.
7.4 Automatic Conversion. Commencing on the one year anniversary of the
Original Issue Date, each share of 10% Cumulative Convertible Preferred Stock
(plus all accrued but unpaid dividends) will automatically convert into that
number of shares of Common Stock provided in
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Section 7.2 in the event that the "Fair Market Value" of the Common Stock equals
or exceeds 300% of the Conversion Price for ten (10) consecutive trading days.
"Fair Market Value" shall mean the average of the closing bid and asked prices
of the Common Stock of the Corporation as reported in the Wall Street Journal
for any trading day (or, if not so reported, as otherwise reported by the
National Association of Securities Dealers Automated Quotation System or other
principal market for the Common Stock) or, in the event the Common Stock is
listed on a stock exchange, the Fair Market Value shall be the closing price of
the Common Stock of the Corporation on such exchange as reported in the Wall
Street Journal for the trading day. In the event of an automatic conversion
pursuant to this Section 7.4, the Corporation shall promptly notify each record
holder of 10% Cumulative Convertible Preferred thereof. Thereafter, the transfer
agent and/or the Corporation may deliver certificates representing Common Stock
to such record holders and the certificates representing shares of 10%
Cumulative Preferred shall be deemed cancelled, or, alternatively, the
Corporation may notify such record holders that their certificates representing
shares of 10% Cumulative Convertible Preferred are thereafter deemed to
represent that number of shares of Common Stock determined by application of
Section 7.2 hereof.
7.5 Adjustments to Conversion Price. The Conversion Price shall be
subject to adjustment from time to time as follows:
(a) In the event the outstanding shares of Common Stock shall
be subdivided by stock split, stock dividends or otherwise, into a greater
number of shares of Common Stock, the Conversion Price then in effect shall,
concurrently with the effectiveness of such subdivision, be proportionately
decreased. In the event the outstanding shares of Common Stock shall be combined
or consolidated, by reclassification or otherwise, into a lesser number of
shares of Common Stock, the Conversion Price then in effect shall, concurrently
with the effectiveness of such combination or consolidation, be proportionately
increased.
(b) In the event that the Corporation from time to time makes
or fixes a record date for the determination of holders of Common Stock entitled
to receive any distribution (excluding any repurchases of securities by the
Corporation not made on a pro rata basis from all holders of any class of the
Corporation's securities) payable in property or in securities of the
Corporation other than shares of Common Stock, and other than as otherwise
adjusted in this Section 7 or as provided in Section 3, then and in each such
event the holders of 10% Cumulative Convertible Preferred shall receive at the
time of such distribution, the amount of property or the number of securities of
the Corporation that they would have received had their 10% Cumulative
Convertible Preferred been converted into Common Stock on the date of such
event.
(c) Except as provided in this Section 7, upon any
liquidation, dissolution or winding up of the Corporation, if the Common Stock
issuable upon conversion of the 10% Cumulative Convertible Preferred shall be
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<PAGE> 6
changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares provided for
above), each share of 10% Cumulative Convertible Preferred and all accrued but
unpaid dividends shall thereafter be convertible into the number of shares of
stock or other securities or property to which a holder of the number of shares
of Common Stock deliverable upon such conversion shall have been entitled upon
such reorganization or reclassification. In any such event, effective provision
shall be made, in the certificate or articles of incorporation of the resulting
or surviving corporation or otherwise, so that the provisions set forth herein
for the protection of the conversion rights of the 10% Cumulative Convertible
Preferred shall thereafter be applicable to any such other shares of stock,
other securities, cash or property deliverable upon conversion of the shares of
the 10% Cumulative Convertible Preferred remaining outstanding or other
convertible stock or securities received by the holders in place thereof, and
any such resulting or surviving corporation shall expressly assume the
obligation to deliver, upon the exercise of the conversion privilege, such
shares, other securities, cash or property as the holders of the 10% Cumulative
Convertible Preferred remaining outstanding, or other convertible stock or
securities received by the holders in place thereof, shall be entitled to
receive pursuant to the provisions hereof, and to make provision for the
protection of the conversion right as above provided.
(d) No adjustment in the number of shares of Common Stock into
which the shares of 10% Cumulative Convertible Preferred are convertible shall
be required unless such adjustment would require an increase or decrease of at
least 1/10th of a share; provided, however, that any adjustment which by reason
hereof is not required to be made shall be carried forward and taken into
account in any subsequent adjustment.
7.6 Notice of Adjustment. Whenever any adjustment is required to be
made as provided in Section 7.5, the Corporation shall promptly notify each
record holder of 10% Cumulative Convertible Preferred thereof, describing in
reasonable detail the adjustment and method of calculation used.
7.7 Reservation of Shares. The Corporation shall at all times reserve
and keep available free from preemptive rights, out of its authorized but
unissued Common Stock, for the purpose of effecting the conversion of the 10%
Cumulative Convertible Preferred, the full number of shares of Common Stock then
deliverable upon the conversion of all shares of 10% Cumulative Convertible
Preferred then outstanding.
7.8 Fractional Shares. No fractional shares will be issued, and any
conversion shall be rounded to the nearest whole number of shares of Common
Stock.
7.9 Accrued But Unpaid Dividends. Upon the receipt of a Conversion
Notice, the Corporation may in its discretion, either pay to the holder
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of the 10% Cumulative Convertible Preferred submitting such Conversion Notice
all accrued but unpaid dividends on the 10% Cumulative Convertible Preferred
such holder has elected to convert through the date of the Conversion Notice or
convert the dollar amount of any accrued but unpaid dividends on such shares of
10% Cumulative Convertible Preferred Stock into Common Stock at the
Conversion Price.
8. Liquidation, Dissolution or Winding Up. Subject to the superior
rights of the holders of any class or series of preferred stock ranking superior
to the 10% Cumulative Convertible Preferred with respect to any liquidation,
dissolution or winding up of the Corporation:
8.1 Liquidation Preference. Upon any voluntary liquidation,
dissolution or winding up of the Corporation, no distribution shall be made to
the holders of shares of stock ranking junior (either as to payment of dividends
or with respect to distributions upon liquidation, dissolution or winding up) to
the 10% Cumulative Convertible Preferred unless, prior thereto, the holders of
10% Cumulative Convertible Preferred shall have received an amount equal to the
Original Purchase Price of the shares of 10% Cumulative Convertible Preferred
purchased, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment (the
"10% Cumulative Convertible Preferred Liquidation Preference"). Following the
payment of the full amount of the 10% Cumulative Convertible Preferred
Liquidation Preference, no additional distributions shall be made to the holders
of 10% Cumulative Convertible Preferred.
8.2 Partial Distribution. In the event, however, that there
are not sufficient assets available to permit payment in full of the 10%
Cumulative Convertible Preferred Liquidation Preference and the liquidation
preferences of all other classes and/or series of Preferred Stock, if any, which
rank on a parity with the 10% Cumulative Convertible Preferred, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences.
9. Consolidation, Merger, etc. In the event of any consolidation or
merger of the Corporation with or into another corporation, or of any sale or
conveyance to another corporation of all or substantially all the property of
the Corporation, in any of which transactions the holders of Common Stock
receive shares of stock, other securities, cash or property receivable upon such
consolidation, merger, sale or conveyance other than Common Stock, each holder
of 10% Cumulative Convertible Preferred then outstanding and thereafter
remaining outstanding shall have the right to convert each share of 10%
Cumulative Convertible Preferred held by him into the kind and amount of shares
of stock, other securities, cash or property receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such share of 10% Cumulative Convertible Preferred could have been
converted immediately prior to the record date applicable to such
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consolidation, merger, sale or conveyance, and shall have no other conversion
rights. In any such event, effective provision shall be made, in the certificate
of incorporation of the resulting or surviving corporation or otherwise, so that
the provisions set forth herein for the protection of the conversion rights of
the holders of the 10% Cumulative Convertible Preferred shall thereafter be
applicable to any such other shares of stock, other securities, cash or property
deliverable upon conversion of the shares of the 10% Cumulative Convertible
Preferred remaining outstanding or other convertible stock or securities
received by the holders in place thereof, and any such resulting or surviving
corporation shall expressly assume the obligation to deliver, upon the exercise
of the conversion privilege, such shares, other securities, cash or property as
the holders of the 10% Cumulative Convertible Preferred remaining outstanding,
or other convertible stock or securities received by the holders in place
thereof, shall be entitled to receive pursuant to the provisions hereof, and to
make provision for the protection of the conversion rights as above provided.
10. Redemption.
10.1 Redemption Right. Beginning on the one year anniversary
of the Original Issue Date, unless previously converted, all or any portion of
the 10% Cumulative Convertible Preferred together with all dividends accrued but
unpaid on such 10% Cumulative Convertible Preferred computed to the Redemption
Date (as defined below) may be redeemed on a pro rata basis by the Corporation
at its election from the holders of such 10% Cumulative Convertible Preferred at
any time and from time to time. Notwithstanding the foregoing, the holders of
the 10% Cumulative Convertible Preferred will have the right to convert the 10%
Cumulative Convertible Preferred to Common Stock for a period of twenty (20)
days following notice of redemption.
10.2 Redemption Notice. Before redeeming the 10% Cumulative
Convertible Preferred as provided in Section 10.1, the Corporation shall mail by
certified or registered mail to each record holder thereof at least twenty (20)
days prior to the Redemption Date (as defined below), at the address shown on
the Corporation's records, a written notice (a "Redemption Notice") stating:
(a) the number of shares of 10% Cumulative
Convertible Preferred held by such holder which the Corporation proposes to
redeem, including the amount of any accrued but unpaid dividends;
(b) the price at which such shares may be redeemed,
which shall be an amount equal to the Original Purchase Price (as equitably
adjusted consistent with Section 7 hereof) and all accrued and unpaid dividends
and distributions thereon, whether declared or not declared, to the date of
redemption (the "Redemption Price");
(c) the date on which the Corporation will pay the
Redemption Price (the "Redemption Date"); and
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(d) the place at which the shares of 10% Cumulative
Convertible Preferred to be redeemed must be surrendered in exchange for the
Redemption Price.
Each holder of shares of the 10% Cumulative Convertible Preferred to whom an
Redemption Notice is mailed shall be entitled to receive in cash on the
Redemption Date the full Redemption Price for each share of 10% Cumulative
Convertible Preferred to be redeemed upon surrender by such holder at the place
designated in such Redemption Notice of the certificate representing such 10%
Cumulative Convertible Preferred duly endorsed in blank or accompanied by an
appropriate form of assignment duly endorsed in blank with signature guaranteed.
In case less than the total number of securities represented by any certificate
are redeemed on the Redemption Rate, a new certificate representing the number
of unredeemed securities will be issued to the holder thereof without cost to
the holder as promptly as practicable following surrender of the certificate
representing the redeemed securities. All rights arising hereunder, other than
the right to receive the Redemption Price, shall terminate on the Redemption
Date.
10.3 If the Corporation shall pay less than the aggregate
redemption price due on such date for all shares of all series of Preferred
Stock being redeemed having the same priority on liquidation as the 10%
Cumulative Convertible Preferred, then shares shall be redeemed from, and
payment shall be distributed among, the holders of the shares of all such series
on the same pro rata basis that such holders would share in payments of the
aggregate redemption price due on such date for all shares of Preferred Stock
being redeemed.
11. Other Notices. If at any time:
(a) The Corporation shall declare any dividend on the
Common Stock payable in shares of capital stock of the Corporation, cash or
other property; or
(b) The Corporation shall authorize the issue of any
options, warrants or rights pro rata to all holders of Common Stock entitling
them to subscribe for or purchase any shares of stock of the Corporation or to
receive any other rights; or
(c) The Corporation shall authorize the distribution
pro rata to all holders of Common Stock of a cash dividend payable otherwise
than out of earnings of surplus legally available therefor under the laws of the
State of Delaware, shares of its capital stock (other than Common Stock), stock
or other securities of other persons, evidences of indebtedness issued by the
Corporation or other persons, assets (excluding cash dividends) or options or
rights (excluding options to purchase and rights to subscribe for Common Stock
or other securities of the Corporation convertible into or exchangeable for
Common Stock); or
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(d) There shall occur any reclassification of the
Common Stock, or any consolidation or merger of the Corporation with or
into another Corporation or a sale, conveyance or other disposition to
another entity of all or substantially all of the properties of the
Corporation; or
(e) There shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation;
then, and in each of such cases, the Corporation shall deliver to each
holder of 10% Cumulative Convertible Preferred at its last address
appearing on the books of the Corporation as promptly as practicable
but in any event at least ten (10) days prior to the applicable record
date (or determination date) mentioned below, a notice stating, to the
extent such information is available, (i) the date on which a record is
to be taken for the purpose of such dividend, distribution or rights,
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 dividend, distribution or
rights are to be determined, or (ii) the date on which such
reclassification, consolidation, merger, sale, 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 shall
be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger,
sale, transfer, liquidation, dissolution or winding up.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this 15th day
of May, 1996.
/s/ Bill R. Williams
---------------------------
BILL R. WILLIAMS, President
ATTEST:
/s/ Connie L. Benger
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CONNIE L. BENGER, Secretary
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