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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 2, 1997
REGISTRATION NO. 333-28373
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE
AMENDMENT NO. 2
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMCOR CAPITAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 33-0329559
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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52-300 ENTERPRISE WAY
COACHELLA, CALIFORNIA 92236
(760) 398-9520
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
FRED H. BEHRENS, CHIEF EXECUTIVE OFFICER
AMCOR CAPITAL CORPORATION
52-300 ENTERPRISE WAY
COACHELLA, CALIFORNIA 92236
(760) 398-9520
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
THOMAS E. STEPP, JR., ESQ.
WHITE AND STEPP LLP
4100 NEWPORT PLACE
SUITE 800
NEWPORT BEACH, CALIFORNIA 92660
(714) 660-9700
BRUCE J. RUSHALL, ESQ.
RUSHALL & MCGEEVER
2111 PALOMAR AIRPORT ROAD
SUITE 200
CARLSBAD, CALIFORNIA 92009
(760) 438-6855
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. [ ]
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT PRICE FEE(2)
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Series A 9% Convertible Preferred
Stock............................... 747,500 $10.00 $7,475,000 $2,265.15
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(1) Represents the maximum number of preferred shares to be issued. The Company
is offering 650,000 preferred shares and has granted to the Underwriter an
option, exercisable within 45 days of the Effective Date, to purchase up to
an aggregate of 97,500 additional shares at the public price less
underwriting discounts and commissions for the purpose of covering
over-allotments, if any.
(2) The filing fee has been computed based on the $10.00 per share maximum
offering price. The Underwriter and other parties may be offered certain
discounts on the maximum offering price.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of all expenses of the offering,
other than underwriting discounts and commissions (1):
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Registration fees.................................................. $12,265
Federal taxes (estimated).......................................... $ 0
State taxes and fees (estimated)................................... $ 0
Trustees' and transfer agents' fees (estimated).................... $ 5,000
Costs of printing and engraving (estimated)........................ $90,000
Legal fees and costs (estimated)................................... $70,000
Accounting fees and costs (estimated).............................. $25,000
Engineering fees (not applicable)..................................
Listing fees....................................................... $ 1,600
</TABLE>
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(2) Include as a separate item any premium paid on any policy to insure
directors or officers against any liabilities incurred in the registration
or sale of the securities: Not applicable
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The statutes, charter provisions, by-laws, contracts or other arrangements
that insure or indemnify a controlling person, director or officer of the
Registrant which affects his or her liability in that capacity are as follows:
Indemnification by Statute. The Company is a corporation duly formed and
existing under the laws of the State of Delaware. Section 145(a) of the Delaware
General Corporation Law permits indemnification of officers, directors,
employees or agents for attorneys' fees and other expenses as well as judgments
or amounts paid in settlement of civil cases. This section applies only to third
party actions, not to actions brought by or in the right of the Company. The
person seeking indemnification must have acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
Company in respect to the claim made against him or her. In criminal cases, the
indemnitee may be indemnified for fines and costs provided that, in addition to
the foregoing standard of conduct, he or she did not have reasonable cause to
believe his or her conduct was unlawful.
Additionally, Section 145(b) of the Delaware General Corporation Law
permits limited indemnification for actions brought by or in the right of the
Company, in that it permits indemnification only of expenses in derivative suits
and does not authorize indemnification of judgments or amounts paid in
settlement of derivative suits. Section 145(c) of the Delaware General
Corporation Law provides mandatory indemnification for an indemnitee in the
event he or she wins a judgment on the merits or otherwise in defense of any
action, suit or proceeding referenced in Sections 145(a) or 145(b) of the
Delaware General Corporation Law.
Indemnification in Bylaws. The Company's Bylaws contain provisions which
provide certain indemnity to a controlling person, director or officer which
affects such a person's liability while acting in a corporate capacity. The
pertinent sections of the Company's bylaws are as follows:
"Section 6.1 Right to Indemnification. The corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable
law as it presently exists or may hereafter be amended, any person who was
or is made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a 'proceeding'), by reason of the fact that he, or a person
for whom he is the legal representative, is or was a director or officer of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans (an 'indemnitee'),
against all liability and loss suffered and expenses (including attorneys'
fees) reasonably incurred by such indemnitee. The corporation shall be
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required to indemnify an indemnitee in connection with a proceeding (or
part thereof) initiated by such indemnitee only if the initiation of such
proceeding (or part thereof) by the indemnitee was authorized by the Board
of Directors of the corporation.
Section 6.2 Payment of Expenses. The corporation shall pay the
expenses (including attorneys' fees) incurred by an indemnitee in defending
any proceeding in advance of its final disposition; provided, however, that
the payment of expenses incurred by a director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is not
entitled to be indemnified under this Article VI or otherwise.
Section 6.3 Claims. If a claim for indemnification or payment of
expenses under this Article VI is not paid in full within sixty days after
a written claim therefor by the indemnitee has been received by the
corporation, the indemnitee may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be
paid the expense of prosecuting such claim. In any such action the
corporation shall have the burden of proving that the indemnitee was not
entitled to the requested indemnification or payment of expenses under
applicable law.
Section 6.4 Nonexclusivity of Rights. The rights conferred on any
person by this Article VI shall not be exclusive of any rights which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these By-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 6.5 Other Indemnification. The corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership,
working relationship, trust, enterprise or nonprofit entity shall be
reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or
nonprofit enterprise.
Section 6.6 Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VI shall not adversely affect any
right or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or modification."
INDEMNIFICATION IN CERTIFICATE OF INCORPORATION. Section 145 of the
Delaware General Corporation Law specifies that the Certificate of Incorporation
of a Delaware corporation may include a provision eliminating or limiting the
personal liability of a director or officer to a corporation or its stockholders
for damages for breach of fiduciary duty as a director or officer, but such a
provision must not eliminate or limit the liability of a director or officer for
(i) acts or omissions which involve intentional misconduct, fraud, or a knowing
violation of law; or (ii) unlawful distributions to stockholders. The
Certificate of Incorporation of the Company includes a provision eliminating or
limiting the personal liability of the officers and directors of the Company to
the Company and its shareholders for damages for breach of fiduciary duty as a
director or officer. Accordingly, the officers and directors of the Company may
have no liability to the shareholders of the Company for any mistakes or errors
of judgment or for any act or omission, unless such act or omission involves
intentional misconduct, fraud, or a knowing violation of law or results in
unlawful distributions to the shareholders of the Company.
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ITEM 16. EXHIBITS
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1 Underwriting Agreement*
1.1 Standard Dealer Agreement*
1.2 Master Agreement Among Underwriters*
1.3 Underwriter's Warrant Agreement*
2 Plan of Acquisition (N/A)
4 Instruments defining the rights of holders, including indentures
5 Opinion re: legality*
8 Opinion re: tax matters*
10 Material contracts*
10.1 Stock Option Agreement with Howard Lee*
10.2 Stock Option Agreement with Dale Paisley*
10.3 Stock Option Agreement with Marlin McKeever*
10.4 Stock Option Agreement with Jacques Genicot*
10.5 Stock Option Agreement with Barry Goverman*
11 Statement re: computation of per share earnings*
13 Annual or quarterly reports, Forms 10-KSB and 10-QSB (incorporated by reference,
filed with Commission August 31, 1996 and July 15, 1997, respectively, file no.
0-17594).
15 Letter on unaudited interim financial information (N/A)
16 Letter on change in certifying accountant (N/A)
23.1 Consent of experts*
23.2 Consent of counsel*
24 Power of Attorney (included on signature page of this Registration Statement)
25 Statement of eligibility of trustee (N/A)
26 Invitation for competitive bids (N/A)
27 Financial data schedule (N/A -- filing does not include interim financial
statements)
99 Memorandum of changes*
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* Previously filed.
ITEM 17. UNDERTAKINGS. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(f) If the Registrant relies on Rule 430A under the Securities Act, the
Registrant will:
(1) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance on Rule 430A and contained in a form of
prospectus filed by the Registrant under Rule 424(b)(1), or (4) or 497(h) under
the Securities Act as part of this Registration Statement as of the time the
Commission declared it effective.
(2) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and the offering of the securities at that time as the initial bona fide
offering for those securities.
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SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Fred H. Behrens with full power to act as his or
her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities (until and unless revoked in a writing) to sign any and
all amendments (including but not limited to post-effective amendments and
amendments thereto) to this Registration Statement on Form S-2 of AMCOR Capital
Corporation, a Delaware corporation, and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact full power and
authority to do and perform each and every act and thing requisite and necessary
to be done to make this Registration Statement on Form S-2 effective, as fully
and for all intents and purposes, as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact or his substitute may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that the Registrant meets
all of the requirements for filing on Form S-2 and has duly caused this
Registration Statement on Form S-2 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Newport Beach, State of
California, on December 2, 1997.
(Registrant) AMCOR CAPITAL CORPORATION, A DELAWARE CORPORATION
By: /s/ FRED H. BEHRENS
----------------------------------
Fred H. Behrens, Chairman of the
Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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(Signature) /s/ FRED H. BEHRENS (Signature) /s/ ROBERT A. WRIGHT
---------------------------------------- ----------------------------------------
Fred H. Behrens Robert A. Wright
(Title) Director (Title) Director
(Date) December 2, 1997 (Date) December 2, 1997
(Signature) /s/ MARLENE A. TAPIE (Signature) /s/ DALE P. PAISLEY
---------------------------------------- ----------------------------------------
Marlene A. Tapie Dale P. Paisley
(Title) Director (Title) Director
(Date) December 2, 1997 (Date) December 2, 1997
(Signature) /s/ F. HOWARD LEE (Signature) /s/ MARLIN T. MCKEEVER
---------------------------------------- ----------------------------------------
F. Howard Lee Marlin T. McKeever
(Title) Director (Title) Director
(Date) December 2, 1997 (Date) December 2, 1997
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INDEX TO EXHIBITS
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SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
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1 Underwriting Agreement*...............................................
1.1 Standard Dealer Agreement*............................................
1.2 Master Agreement Among Underwriters*..................................
1.3 Underwriter's Warrant Agreement*......................................
2 Plan of Acquisition (N/A).............................................
4 Instruments defining the rights of holders, including indentures......
5 Opinion re: legality*.................................................
8 Opinion re: tax matters*..............................................
10.1 Stock Option Agreement with Howard Lee*...............................
10.2 Stock Option Agreement with Dale Paisley*.............................
10.3 Stock Option Agreement with Marlin McKeever*..........................
10.4 Stock Option Agreement with Jacques Genicot*..........................
10.5 Stock Option Agreement with Barry Goverman*...........................
11 Statement re: computation of per share earnings*......................
13 Annual or quarterly reports, Forms 10-KSB and 10-QSB (incorporated by
reference, filed with Commission August 31, 1996 and July 15, 1997,
respectively, file no. 0-17594).......................................
15 Letter on unaudited interim financial information (N/A)...............
16 Letter on change in certifying accountant (N/A).......................
23.1 Consent of experts*...................................................
23.2 Consent of counsel*...................................................
24 Power of Attorney (included on signature page of this Registration
Statement)............................................................
25 Statement of eligibility of trustee (N/A).............................
26 Invitation for competitive bids (N/A).................................
27 Financial data schedule (N/A -- filing does not include interim
financial statements).................................................
99 Memorandum of changes*................................................
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* Previously filed.
<PAGE> 1
Exhibit 4
CERTIFICATE OF DESIGNATIONS, PREFERENCES,
AND RELATIVE RIGHTS, QUALIFICATIONS AND
RESTRICTIONS OF THE SERIES A 9% CONVERTIBLE
PREFERRED STOCK OF
AMCOR CAPITAL CORPORATION
-----------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-----------------
AMCOR Capital Corporation, a corporation organized and existing
pursuant to and by virtue of, the provisions of the General Corporation Law of
the State of Delaware, certifies as follows:
The undersigned, Robert A. Wright and Robin Swanson, hereby certify
that:
1. They are the duly elected and acting President and Secretary,
respectively, of AMCOR Capital Corporation, a Delaware corporation
("Corporation");
2. WHEREAS, the Certificate of Incorporation of the Corporation, as
amended, authorizes the issuance of 2,000,000 shares of Preferred Stock, par
value $.01 per share ("Preferred Shares"), and, additionally, authorizes the
issuance of shares of Preferred Stock from time to time in one or more series as
may from time to time be determined by the Board of Directors, each of those
series to be distinctly designated, and on such terms and for such consideration
as shall be determined by the Board of Directors of the Corporation, and,
additionally, grants to the Board of Directors of the Corporation the authority
to determine by resolution or resolutions adopted prior to the issuance of any
shares of a particular series of Preferred Stock, the voting powers, if any, and
the designations, privileges, powers, preferences and rights of the shares of
each such series and the qualifications, limitations and restrictions thereof;
and
3. WHEREAS, the Board of Directors of the Corporation, pursuant to
action taken at a special meeting of that Board of Directors held on May 17,
1997, has duly adopted the following resolutions authorizing the creation of and
issuance of a series of that Preferred Stock to be known as Series A 9%
Convertible Preferred Stock; NOW, THEREFORE, IT IS:
RESOLVED, the Board of Directors of the Corporation hereby determines
and fixes the number, designations, preferences, privileges, rights and
limitations of another series of the Preferred Shares on the terms and with the
provisions herein specified:
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1. DESIGNATION. A series of Preferred Stock of the Corporation is
hereby designated "Series A 9% Convertible Preferred Stock" ("Series A 9%
Convertible Preferred Stock"), consisting initially of 812,500 shares. The
Series A 9% Convertible Preferred Stock shall have a par value of $.01 per
share. The Series A Preferred Stock issued by the Corporation and outstanding
as of the date of this Certificate shall be and hereby is designated "Series B
Preferred Stock" and shall be junior and subordinate to the Series A 9%
Convertible Preferred Stock.
2. PRIORITY. Shares of the Series A 9% Convertible Preferred Stock
shall rank prior to the Corporation's Common Stock, $.002 par value per share
("Common Stock"), with respect to the payment of dividends and upon liquidation.
The Series B Preferred Stock presently outstanding and other classes of
Preferred Shares shall be subordinated to and shall rank junior to the Series A
9% Convertible Preferred Stock with respect thereto; provided, however, that
holders of Series A 9% Convertible Preferred Stock, by vote or written consent
of the holders of sixty-six and two-thirds percent (66 2/3%) or more of the then
outstanding Series A 9% Convertible Preferred Stock, may elect from time to time
to allow other series or classes of Preferred Shares to rank senior to the
Series A 9% Convertible Preferred Stock with respect to dividends, assets or
liquidation. The Company may create additional classes of stock, increase the
authorized number of shares of Preferred Stock or issue series of Preferred
Stock which rank on a parity with the Series A Preferred Stock with respect, in
each case, to the payment of dividends and amounts upon liquidation, dissolution
or winding up of the Company ("Parity Stock") without the consent of any holder
of Series A Preferred Stock.
3. DIVIDENDS.
(a) Dividend rates on the shares of Series A 9% Convertible Preferred
Stock shall be at an annual rate of nine percent (9%) for each quarterly
dividend period ("Quarterly Dividend Period"), which Quarterly Dividend Periods
shall commence on October 1, January 1, April 1 and July 1 in each year and
shall end on and include the day immediately preceding the first day of the next
Quarterly Dividend Period. Dividends shall be cumulative (but not compounded)
and accrue quarterly from the date of original issue of the Series A 9%
Convertible Preferred Stock and shall be payable, if, when, and as declared by
the Board of Directors of the Corporation, on October 1 in respect of the
Quarterly Dividend Period beginning the preceding July 1); January 1, (in
respect of the Quarterly Dividend Period beginning the preceding October 1);
April 1 (in respect of the Quarterly Dividend Period beginning the preceding
January 1); and July 1, (in respect of the Quarterly Dividend Period beginning
the preceding April 1) of each year. Each dividend shall be paid to the holders
of record of the Series A 9% Convertible Preferred Stock as they shall appear on
the stock register of the Corporation on such record date, not exceeding sixty
(60) days nor less than ten (10) days preceding the payment date thereof, as
shall be fixed by the Board of Directors of the Corporation or a duly authorized
committee thereof. If declared, dividends shall be payable in cash.
(b) No dividends shall be payable on any shares of any class of the
Corporation's capital stock ranking junior and subordinate to the Series A 9%
Convertible Preferred Stock as to the payment of dividends, unless all accrued
dividends on the Series A 9% Convertible Preferred Stock to the record date of
the proposed dividends on the junior class and subordinate shall have been paid
or have been declared and an amount sufficient for the payment of those
dividends reserved.
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(c) Upon any conversion of any shares of Series A 9% Convertible
Preferred Stock, as described in Section 6 hereof, the holders thereof shall be
entitled to receive in cash any accumulated, accrued or unpaid dividends in
respect of such shares of the Series A 9% Convertible Preferred Stock.
4. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Corporation, the
holders of shares of the Series A 9% Convertible Preferred Stock shall be
entitled to receive, out of the assets of the Corporation, whether such assets
are capital or surplus and whether or not any dividends as such are declared,
$10.00 per share plus an amount equal to all accrued and unpaid dividends
thereon to the date fixed for distribution, and no more, before any distribution
shall be made to the holders of the Common Stock or any other class of shares or
series thereof ranking junior and subordinate to the Series A 9% Convertible
Preferred Stock with respect to the distribution of assets.
(b) For purposes of this Section 4, a merger or consolidation of the
Corporation with or into any other corporation or corporations, or the merger of
any other corporation or corporations with or into the Corporation, or the sale
of all or substantially all of the assets of the Corporation, or any other
corporate reorganization, in which consolidation, merger, sale of assets or
reorganization the stockholders of the Corporation receive distributions in cash
or securities of another corporation or corporations as a result of such
consolidation, merger, sale of assets or reorganization, shall be treated as a
liquidation, dissolution or winding up of the Corporation, unless the
stockholders of the Corporation hold more than fifty percent (50%) of the voting
equity securities of the successor or surviving corporation immediately
following such consolidation, merger, sale of assets or reorganization, in which
case such consolidation, merger, sale of assets or reorganization shall not be
treated as a liquidation, dissolution, or winding up within the meaning of this
Section 4.
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, specifying a
payment date and the place where the distributive amounts shall be payable,
shall be given by mail, postage prepaid, not less than thirty (30) days prior to
the payment date elected therein, to the holders of record of the Series A 9%
Convertible Preferred Stock at their respective addresses as the same shall
appear on the books of the Corporation.
(d) No payment on account of such liquidation, dissolution or winding
up of the affairs of the Corporation shall be made to the holders of any class
or series of stock ranking on a parity with the Series A 9% Convertible
Preferred Stock in respect of the distribution of assets, unless there shall
also be paid at the same time to the holders of the Series A 9% Convertible
Preferred Stock similar proportionate distributive amounts, ratably, in
proportion to the fully distributive amounts to which they and the holders of
such parity stock are respectively entitled with respect to such preferential
distribution.
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5. VOTING RIGHTS. Except as specified in Sections 2 and 8 hereof, the
holders of Series A 9 % Convertible Preferred Stock shall not have any voting
powers, either general or special.
6. CONVERSION.
6.1. VOLUNTARY CONVERSION. Each share of Series A 9%
Convertible Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of the Series A 9% Convertible
Preferred Stock at the office of the Corporation or, if the Corporation shall
have appointed a transfer agent for the Series A 9% Convertible Preferred Stock,
at the office of such transfer agent, into authorized but previously unissued
shares of Common Stock, at a conversion price equal to 125 percent of the
closing price of the Common Stock ("Conversion Price") on the day before the
date the Registration Statement on Form S-2 regarding the Series A 9%
Convertible Preferred Stock filed by the Corporation with the Securities and
Exchange Commission becomes effective ("Effective Date"). For these purposes,
the closing price of a whole share of Common Stock shall be the closing price of
the Common Stock on the day before the Effective Date. The closing price on day
before the Effective Date shall be the last sale price, regular way, or, in the
case no such sale takes place on the day before the Effective Date, the average
of the high bid and low bid asked prices in the over-the-counter market, or such
other system then in use, or, if on the day before the Effective Date the Common
Stock is not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in the
Common Stock, which market maker shall be selected by the Board of Directors of
the Corporation. If on the day before the Effective Date no such market maker is
making a market in the Common Stock, the closing price of the Common Stock on
the day before the Effective Date as determined in good faith by the Board of
Directors of the Corporation shall be utilized.
6.2. MANDATORY CONVERSION. At such time as the closing price
of the Common Stock (as determined above), for a period of 20 consecutive
business days, is an amount equal to or greater than that amount which is equal
to 150% of the closing price of the Common Stock on the day before the Effective
Date, the Company shall have the right to require and compel each holder of
Series A 9% Convertible Preferred Stock to convert the Series A 9% Convertible
Preferred Stock to Common Stock on those terms specified by the provisions of
Section 6.1 above.
6.3. MECHANICS OF CONVERSION. No fractional shares of Common
Stock shall be issued upon any conversion of Series A 9% Convertible Preferred
Stock. In lieu of any fractional shares to which the holder would otherwise be
entitled, the Corporation shall pay cash equal to such fraction. Before any
holder of Series A 9% Convertible Preferred Stock shall be entitled to convert
the same into full shares of Common Stock and to receive certificates therefor,
the holder shall surrender the certificate or certificates representing and
evidencing the Series A 9% Convertible Preferred Stock, duly endorsed, at the
office of the Corporation, or if the Corporation shall have appointed a transfer
agent for the Series A 9% Convertible Preferred Stock, at the office of such
transfer agent, and shall give written notice to the Corporation at either such
office that the holder elects to convert the same; provided, however,
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that in the event of any mandatory conversion pursuant to Section 6.2 above, the
outstanding shares of Series A 9% Convertible Preferred Stock shall be converted
automatically without any further action by the holders of such shares, whether
or not the certificates representing such shares are surrendered to the
Corporation or its transfer agent, if any; and provided, further, however, that
the Corporation shall not be obligated to issue certificates evidencing the
shares of Common Stock issuable upon such mandatory conversion unless the
certificates evidencing such shares of Series A 9% Convertible Preferred Stock
are either delivered to the Corporation or its transfer agent, if any, as
provided above, or the holder notifies the Corporation or its transfer agent, if
any, that such certificates have been lost, stolen or destroyed and executes an
agreement satisfactory to the Corporation to indemnify the Corporation from any
loss incurred by it in connection with such certificates. The Corporation shall,
as soon as practicable after such delivery, or such agreement and
indemnification in the case of a lost certificate, issue and deliver at such
office to such holder of Series A 9% Convertible Preferred Stock, a certificate
or certificates for the number of shares of Common Stock to which the holder
shall be entitled as aforesaid and a check payable to the holder in the amount
of any cash amounts payable as a result of the conversion into fractional shares
of Common Stock. In the case of any mandatory conversion pursuant to Section
6.2, such conversion shall be deemed to have been made immediately prior to the
close of business on the date of the event causing the required conversion. The
person or persons entitled to receive the shares of Common Stock issuable upon
any such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on such date.
6.4 ADJUSTMENTS FOR SUBDIVISIONS, COMBINATIONS OR
CONSOLIDATIONS OF COMMON STOCK. If the outstanding shares of Common Stock are
subdivided (by stock split, stock dividend or otherwise), into a greater number
of shares of Common Stock, the number of shares of Common Stock into which each
share of Series A 9% Convertible Preferred Stock may be converted shall,
concurrently with the effectiveness of such subdivision, be proportionately
increased. 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 number of shares of Common Stock which each share of
Series A 9% Convertible Preferred Stock may be converted into shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately decreased.
6.5. ADJUSTMENTS FOR STOCK DIVIDENDS AND OTHER DISTRIBUTIONS.
If the Corporation at any time or 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 6
or as provided in Paragraph (a) of Section 3, then and in each such event the
holders of Series A 9% Convertible Preferred Stock 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 Series A 9% Convertible
Preferred Stock been converted into Common Stock on the date of such event.
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6.6. ADJUSTMENTS FOR RECLASSIFICATION, EXCHANGE AND
SUBSTITUTION. Except as provided in Section 4, upon any liquidation, dissolution
or winding up of the Corporation, if the Common Stock issuable upon conversion
of the Series A 9% Convertible Preferred Stock is 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), the number of shares of Common
Stock into which each share of Series A 9% Convertible Preferred Stock may be
converted shall, concurrently with the effectiveness of such reorganization or
reclassification, be proportionately adjusted such that the Series A 9%
Convertible Preferred Stock shall be convertible into, in lieu of the number of
shares of Common Stock which the holders would otherwise have been entitled to
receive, a number of shares of such other class or classes of stock equivalent
to the number of shares of Common Stock that would have been subject to receipt
by the holders upon conversion of the Series A 9% Convertible Preferred Stock
immediately before the change.
6.7. REORGANIZATION, MERGERS, CONSOLIDATIONS OR SALES OF
ASSETS. If at any time or from time to time there is a capital reorganization of
the Common Stock (other than a subdivision, combination, consolidation,
reclassification, substitution or exchange of shares provided for elsewhere in
this Section 6), or a merger or consolidation of the Corporation with or into
another corporation, or the sale of all or substantially all of the
Corporation's properties and assets to any other person, then, as a part of such
reorganization, merger, consolidation, or sale, provision shall be made so that
the holders of the Series A 9% Convertible Preferred Stock shall thereafter be
entitled to receive upon conversion of the Series A 9% Convertible Preferred
Stock, the number of shares of stock or other securities or property of the
Corporation, or of the successor corporation resulting from such merger or
consolidation or sale, to which a holder of Common Stock deliverable upon
conversion would have been entitled on such capital reorganization, merger,
consolidation, or sale. In any such case, appropriate adjustment shall be made
in the application of the provisions of this Section 6 with respect to the
rights of the holders of the Series A 9% Convertible Preferred Stock after the
reorganization, merger, consolidation, or sale to the end that the provisions of
this Section 6 shall be applicable after that event as nearly equivalent as may
be practicable.
6.8. NO IMPAIRMENT. Except as provided in Section 7, the
Corporation will not, by amendment of its Certificate of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 6 and in the
taking of all such action as may be necessary or appropriate in order to protect
the conversion rights of the holders of the Series A 9% Convertible Preferred
Stock against impairment.
6.9. CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of
each adjustment or readjustment of the number of shares of Common Stock which
each share of Series A 9% Convertible Preferred Stock may be converted into
pursuant to this Section 6, the Corporation at its expense shall promptly
compute such adjustment or readjustment in accordance with the
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terms hereof and furnish to each holder of Series A 9% Convertible Preferred
Stock a certificate setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment or readjustment is based.
6.10 REDEMPTION. Shares of Series A 9% Convertible Preferred
Stock will be redeemable, at the option of the Corporation, in its sole and
absolute discretion, on or after 5 years from the date of issuance, for cash at
a redemption price of $10.00 per share, plus any accumulated, accrued and unpaid
dividends. If redemption of the Series A 9% Convertible Preferred Stock occurs
in part, such redemption shall occur on a pro rata basis. The conditions
precedent to the Corporation's right to compel conversion of the Series A 9%
Convertible Preferred Stock will not apply to the redemption by the Corporation
of the Series A 9% Convertible Preferred Stock.
Notice of redemption will be given by mail or by publication (with
subsequent prompt notice by mail) to the holders of record of the Series A 9%
Convertible Preferred Stock not less than 30 nor more than 60 days prior to the
date of redemption, in the case of a redemption for cash. The redemption date
will be a date selected by the Corporation not less than 10 nor more than 60
days after the date on which the Corporation gives the notice of redemption.
On the redemption date, the Corporation must pay in cash on each share
of Series A 9% Convertible Preferred Stock to be redeemed any accumulated,
accrued and unpaid dividends, if any, on the redemption date. In the case of a
redemption date falling after a dividend record date and prior to the related
dividend payment date, the holders of the Series A 9% Convertible Preferred
Stock at the close of business on such record date will be entitled to receive
the dividend payable on such shares on the corresponding dividend payment date,
notwithstanding the redemption of such shares following such dividend record
date. Except as provided for in the preceding sentences, no payment or allowance
will be made for accumulated or accrued dividends on any shares of Series A 9%
Convertible Preferred Stock called for redemption.
In the event that full cumulative dividends on the Series A 9%
Convertible Preferred Stock and any Parity Stock have not been paid or declared
and set apart for payment, the Series A 9% Convertible Preferred Stock may not
be redeemed in part and the Corporation may not purchase or acquire shares of
Series A 9% Convertible Preferred Stock otherwise than pursuant to a purchase or
exchange offer made on the same terms to all holders of shares of Series A 9%
Convertible Preferred Stock.
On and after the date fixed for redemption, provided that the
Corporation has made available at the office of the Registrar and Transfer Agent
a sufficient amount of cash to effect the redemption, dividends will cease to
accumulate or accrue on the Series A 9% Convertible Preferred Stock called for
redemption
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(except that, in the case of a redemption date after a dividend record date and
prior to the related dividend payment date, holders of Series A 9% Convertible
Preferred Stock on the dividend record date will be entitled on such dividend
payment date to receive the dividend payable on such shares), such shares shall
no longer be deemed to be outstanding and all rights of the holders of such
shares of Series A 9% Convertible Preferred Stock shall cease except the right
to receive cash payable upon such redemption, without interest from the date of
such redemption.
In the event the Corporation elects to redeem the Series A 9%
Convertible Preferred Stock, the Corporation will provide to holders of the
Series A 9% Convertible Preferred Stock written notice of that election, and
during that 30 day period immediately following the date of that notice those
holders will have the option to convert the Series A 9% Convertible Preferred
Stock to Common Stock at a price equal to 125% of the closing price of the
Common Stock on the day before the effective date of the offering to the public
of the Series A 9% Convertible Preferred Stock. If the Series A 9% Convertible
Preferred Stock is redeemed in part, such redemption will be on a pro rata
basis.
6.11 NOTICES OF RECORD DATE. If the Corporation proposes at
any time to:
(a) declare any dividend or distribution upon its Common Stock, whether
in cash, property, stock or other securities, whether or not a regular cash
dividend and whether or not out of earnings or earned surplus;
(b) offer for subscription pro rata to the holders of any class or
series of its capital stock any additional shares of capital stock of any class
or series or other rights;
(c) effect any reclassification or recapitalization of its Common Stock
outstanding involving a change in the Common Stock;
(d) merge or consolidate with or into any other corporation, or sell,
lease or convey all or substantially all its property or business, or to
liquidate, dissolve or wind up;
(e) cause the mandatory conversion of the Series A 9% Convertible
Preferred Stock; or
(f) redeem the Series A 9% Convertible Preferred Stock,
then, in connection with each such event, this Corporation shall send to the
holders of the Series A 9% Convertible Preferred Stock:
(i) at least twenty (20) days prior written notice of the date
on which a record shall be taken for such dividend, distribution or subscription
rights (and specifying the date on which the holders of Common Stock shall be
entitled thereto) or for determining rights to vote in respect of the matters
referred to in (a) and (b) above; and
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(ii) in the case of the matters referred to in (c), (d), (e)
and (f) above, at least twenty (20) days prior written notice of the date when
the same shall take place (and specifying the date on which the holders of
Preferred or Common Stock shall be entitled or compelled to exchange their
Preferred or Common Stock for securities or other property deliverable upon the
occurrence of such event).
Each such written notice shall be delivered personally or given by
first class mail, postage prepaid, addressed to the holders of the Series A 9%
Convertible Preferred Stock at the address for each such holder as shown on the
books of this Corporation.
7. VOTING RIGHTS UPON DEFAULT REGARDING PAYMENT OF DIVIDENDS. Holders
of the Series A 9% Convertible Preferred Stock will have the right to elect a
majority of the members of the Board of Directors of the Corporation upon a
cumulative default, whether consecutive or not, of 8 quarterly dividends, and
that right shall continue until full and complete payment of all dividends in
arrears on the Series A 9% Convertible Preferred Stock.
8. STATUS OF CONVERTED STOCK. If any shares of Series A 9% Convertible
Preferred Stock are repurchased or converted pursuant to Section 6, the shares
so repurchased or converted shall be retired and shall thereafter have the
status of authorized and unissued shares of Preferred Shares which may be
reissued by the Corporation at any time as shares of any series of Preferred
Shares.
9. RESTRICTIONS AND LIMITATIONS
(a) At such time as any shares of Series A 9% Convertible Preferred
Stock remain outstanding, the Corporation shall not, without the vote or written
consent of the holders of at least sixty-six and two-thirds percent (66 2/3%)
of the then outstanding shares of Series A 9% Convertible Preferred Stock:
(i) Redeem, purchase or otherwise acquire for value, any share
or shares of Series A 9% Convertible Preferred Stock, otherwise than by
conversion in accordance with Section 6:
(ii) Redeem, purchase or otherwise acquire any of the Common
Stock; provided, however, that this restriction shall not apply to the
repurchase of shares of Common Stock from employees, officers, directors,
consultants or other persons performing services for the Corporation or any
subsidiary of the Corporation pursuant to agreements pursuant to which the
Corporation has the option to repurchase such shares at cost upon the occurrence
of certain events, such as the termination of employment;
(iii) Authorize or issue, or obligate itself to issue, any
other equity security (including any security convertible into or exercisable
for any equity security) senior to or on a parity with the Series A 9%
Convertible Preferred Stock as to dividend or redemption rights and liquidation
preferences;
(iv) Effect any sale, lease, assignment, transfer, or other
conveyance of all or substantially all of the assets of the Corporation or any
of its subsidiaries, or any consolidation or merger involving the Corporation or
any of its subsidiaries, or any reclassification or other change of any stock,
or any recapitalization of the Corporation; or
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(v) Increase or decrease (other than by conversion) the total
number of authorized shares of Series A 9% Convertible Preferred Stock.
(b) The Corporation shall not amend its Certificate of Incorporation
without the approval, by vote or written consent, by the holders of 66 2/3% of
the Series A 9% Convertible Preferred Stock, if such amendment would amend,
modify, annul, supersede, or otherwise change any of the rights, preferences,
privileges of, or limitations provided for herein for the benefit of any shares
of the Series A 9% Convertible Preferred Stock. Without limiting the generality
of the preceding sentence, the Corporation will not amend its Certificate of
Incorporation without the approval by the holders of sixty-six and two-thirds
percent (66 2/3%) of the Series A 9% Convertible Preferred Stock, if such
amendment would:
(i) Reduce the dividend rate on the Series A 9% Convertible
Preferred Stock provided for herein, or make such dividends noncumulative, or
defer the date from which dividends will accrue, or cancel accrued and unpaid
dividends, or change the relative seniority rights of the holders of the Series
A 9% Convertible Preferred Stock as to the payment of dividends in relation to
the holders of any other capital stock of the Corporation;
(ii) Reduce the amount payable to the holders of the Series A
9% Convertible Preferred Stock upon the voluntary or involuntary liquidation,
dissolution, or winding up the Corporation, or change the relative seniority of
the liquidation preferences of the holders of the Series A 9% Convertible
Preferred Stock to the rights upon liquidation of the holders of any other
capital stock of the Corporation; or
(iii) Cancel or modify the conversion rights of the Series A
9% Convertible Preferred Stock provided for in Section 6.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations, Preferences and Relative Rights, Qualifications and Restrictions
of the Series A 9% Convertible Preferred Stock to be duly executed by its Chief
Executive Officer and President and attested to by its Secretary and has caused
its corporate seal to be affixed hereto, this 27th day of May, 1997.
(Corporate Seal)
/s/ Fred H. Behrens
----------------------------------------
Fred H. Behrens, Chief Executive Officer
/s/ Robert A. Wright
----------------------------------------
ATTEST: /s/ Robin Swanson Robert A. Wright, President
-------------------------
Robin Swanson, Secretary
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The undersigned, Robert A. Wright and Robin Swanson, the President and
Secretary, respectively, of AMCOR Capital Corporation, a Delaware corporation,
each declares under penalty of perjury under the laws of the State of California
that the matters set out in the foregoing Certificate are true of his or her own
knowledge.
Executed at Coachella, California on May 27, 1997.
/s/ Robert A. Wright
----------------------------
Robert A. Wright
/s/ Robin Swanson
----------------------------
President
Robin Swanson
Secretary
