U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report September 30, 1996
GENERAL PARCEL SERVICE, INC.
(Exact Name of Small Business Issuer in Its Charter)
State of Florida
(State or Other Jurisdiction of Incorporation)
33-30123-A 59-2576629
(Commission File Number) (I.R.S. Employer Identification No.)
8923 Western Way, Suite 22 Jacksonville, FL 32256
(Address of Principal Executive Offices) (Zip Code)
(904) 363-0089
(Registrant's Telephone Number)
<PAGE>
ITEM 5. OTHER EVENTS
On September 18, 1996, the Registrant's Board of Directors
approved an amendment to the Company's Articles of
Incorporation, Creating a new Class A Series 3 Preferred Stock
("Series 3 Preferred") The Series 3 Preferred is identical to
the Company's Class A Series 2 Preferred except that the
dividend rate is 8 percent rather than 7 percent. The Company
issued 60,000 shares of the newly authorized Series 3 Preferred
to an affiliate of the Chairman of the Board of the Registrant
for a total purchase price of $1.5 million or $25.00 per share
on September 30, 1996.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS ON FORM 8-K.
Item Description
Exhibit A Amendment to the Articles of Incorporation
effective September 18, 1996
SIGNATURE
Pursuant to the requirements of the Security Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
GENERAL PARCEL SERVICE, INC.
By: (Signed)
E. Hoke Smith, Jr., President
Date: October 3, 1996
<PAGE>
Exhibit A
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION OF
GENERAL PARCEL SERVICE, INC.
General Parcel Service, Inc., a Florida Corporation, under its
corporate seal and under the hand of its President and
Secretary, hereby certifies that:
The following Amendment to the Articles of
Incorporation was unanimously adopted by the
Board of Directors pursuant to Section 607.1002 and Section
607.0602, Florida Statutes, without action by the Shareholders
on September 18, 1996.
BE IT RESOLVED, that pursuant to the authority vested in the
Board of Directors of the Corporation by Article IV of the
Corporation's Certificate of Incorporation, as amended, a series
of preferred stock of the Corporation be, and it hereby is,
created out of the authorized but unissued shares of the capital
stock of the Corporation, such series to be designated Class A
Series 3 Cumulative Convertible Preferred Stock (the "Preferred
Stock"), to consist of Three Hundred Thousand (300,000) shares,
par value $0.01 per share, of which the preferences and relative
and other rights, and the qualifications, limitations or
restrictions thereof, shall be (in addition to those set forth
in the Corporation's Certificate of Incorporation, as amended)
as set forth below; and
FURTHER RESOLVED, that the President and Secretary be, and they
hereby are, authorized and directed to file a Certificate of
Amendment with the State of Florida Division of Corporations to
effectuate the Board of Directors' determination of the first
series of preferred stock and
FURTHER RESOLVED, that the Articles of Incorporation be amended
in the following particulars: The following language shall be
inserted at the end of Article IV as Section 7.
Section 7. Class A Series 3 Cumulative Convertible Preferred
Stock.
1. Certain Definitions. Unless the context otherwise requires,
the terms defined in this paragraph I shall have, for all purposes
of this resolution, the meanings herein specified.
Common Stock. The term "Common Stock" shall mean all shares now
or hereafter authorized of any class of Common Stock of the
Corporation and any other stock of the Corporation, howsoever
designated, authorized after the Issue Date, which has the right
(subject always to prior rights of any class or series of
preferred stock) to participate in the distribution of the
assets and earnings of the Corporation without limit as to per
share amount.
Conversion Date. The term "Conversion Date" shall have the
meaning set forth in subparagraph 5(d) below.
Conversion Price. The term "Conversion Price" shall mean the
price per share of Common Stock used to determine the number of
shares of Common Stock deliverable upon conversion of a share of
the Preferred Stock, which price shall initially be $2.50 per
share, subject to adjustment in accordance with the provisions
of paragraph 5 below.
Current Market Price. The term "Current Market Price" shall
have the meaning set forth in subparagraph 5(g) below.
Dividend Payment Date. The term "Dividend Payment Date" shall
have the meaning set forth in subparagraph 2(a) below.
Dividend Period. The term "Dividend Period" shall have the
meaning set forth in subparagraph 2(a) below.
Final Redemption Date. The term "Final Redemption Date" shall
have the meaning set forth in subparagraph 4(e) below.
Issue Date. The term "Issue Date" shall mean the date that
shares of Preferred Stock are first issued by the Corporation.
Junior Stock. The term "Junior Stock" shall mean, for purposes
of paragraphs 2 and 8 below, the Common Stock and any other
class or series of stock of the Corporation issued after the
Issue Date not entitled to receive any dividends in any Dividend
Period unless all dividends required to have been paid or
declared and set apart for payment on the Preferred Stock shall
have been so paid or declared and set apart for payment and, for
purposes of paragraphs 3 and 8 below, any class or series of
stock of the Corporation issued after the Issue Date not
entitled to receive any assets upon the liquidation, dissolution
or winding up of the affairs of the Corporation until the
Preferred Stock shall have received the entire amount to which
such stock is entitled upon such liquidation, dissolution or
winding up.
Liquidation Value. The term "Liquidation Value" shall mean
Twenty-five Dollars ($25.00) per share.
Parity Stock. The term "Parity Stock" shall mean, for purposes
of paragraphs 2 and 8 below, any other class or series of stock
of the Corporation issued after the Issue Date entitled to
receive payment of dividends on a parity with the Preferred
Stock and, for purposes of paragraphs 3 and 8 below, any other
class or series of stock of the Corporation issued after the
Issue Date entitled to receive assets upon the liquidation,
dissolution or winding up of the affairs of the Corporation on a
parity with the Preferred Stock.
Redemption Agent. The term "Redemption Agent" shall have the
meaning set forth in subparagraph 4(d) below.
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Redemption Date, The term "Redemption Date" shall have the
meaning set forth in subparagraph 4(c) below.
Redemption Price. The term "Redemption Price" shall mean the
price to be paid upon redemption of the Preferred Stock as
determined in accordance with subparagraph 4(a) below,
Senior Stock. The term "Senior Stock" shall mean, for purposes
of paragraphs 2 and 8 below, any class or series of stock of the
Corporation issued after the Issue Date ranking senior to the
Preferred Stock in respect of the fight to receive dividends,
and, for purposes of paragraphs 3 and 8 below, any class or
series of stock of the Corporation issued after the Issue Date
ranking senior to the Preferred Stock in respect of the right to
receive assets upon the liquidation, dissolution or winding up
of the affairs of the Corporation.
Subsidiary. The term "Subsidiary" shall mean any corporation of
which shares of stock possessing at least a majority of the
general voting power in electing the board of directors are, at
the time as of which any determination is being made, owned by
the Corporation, whether directly or indirectly through one or
more Subsidiaries.
2. Dividends,
(a) Subject to the prior preferences and other rights of any
Senior Stock and the option of the Corporation to pay dividends
in shares of additional Preferred Stock as provided below, the
holders of Preferred Stock shall be entitled to receive, out of
funds legally available for that purpose, cash dividends at the
rate of Two Dollar ($2.00) Dollars per annum, subject to
increase as provided in subparagraph 2(d) below. Such dividends
shall be cumulative from the Issue Date and shall be payable in
arrears, when and as declared by the Board of Directors, on
March 31, June 30, September 30 and December 31 of each year
(each such date being herein referred to as a "Dividend Payment
Date"), commencing on December 31, 1996. The quarterly period
between consecutive Dividend Payment Dates shall hereinafter be
referred to as a "Dividend Period." Each such dividend shall be
paid to the holders of record of the Preferred Stock as their
names appear on the share register of the Corporation on the
corresponding Record Date. As used above, the term "Record
Date" means, with respect to the dividend payable on March 31,
June 30, September 30 and December 31, respectively, of each
year, the preceding March 15, June 15, September 15 and December
15, or such other record date designated by the Board of
Directors of the Corporation with respect to the dividend
payable on such respective Dividend Payment Date. Dividends on
account of arrears for any past Dividend Periods may be declared
and paid at any time, without reference to any Dividend Payment
Date, to holders of record on such date, not exceeding 50 days
preceding the payment date thereof, as may be fixed by the Board
of Directors.
(b) The Corporation may, at its option, declare and pay
dividends, in whole or in part, in shares of additional
Preferred Stock, in lieu of cash dividends (a "Paid-in-Kind
Dividend"). Any such Paid-in-Kind Dividend shall be at the same
rate per annum as for cash dividends and shall be declared and
paid at the same times, for the same periods, and on the same
terms as set forth above with respect to cash dividends, except
as provided in this subparagraph. Paid-in-Kind Dividends shall
be
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paid to holders of record on the applicable Record Date by the
issuance of an additional certificate representing shares of
Preferred Stock valued at the Liquidation Value. Fractional
shares of Preferred Stock may be issued as Paid-in-Kind
Dividends.
(c) In the event that full cash dividends are not paid or made
available to the holders of all outstanding shares of Preferred
Stock and of any Parity Stock, and funds available shall be
insufficient to permit payment in full in cash to all such
holders of the preferential amounts to which they are then
entitled, the entire amount available for payment of cash
dividends shall be distributed among the holders of the
Preferred Stock and of any Parity Stock ratably in proportion to
the full amount to which they would otherwise be respectively
entitled, and any remainder not paid in cash to the holders of
the Preferred Stock shall cumulate as provided in subparagraph
2(c) below.
(d) If, on any Dividend Payment Date, the holders of the
Preferred Stock shall not have received the full dividends
provided for in the other provisions of this paragraph 2, then
such dividends shall cumulate, whether or not earned or
declared, with additional dividends thereon for each succeeding
full Dividend Period during which such dividends shall remain
unpaid. Unpaid dividends for any period less than a full
Dividend Period shall cumulate on a day-to-day basis and shall
be computed on the basis of a 360 day year.
(e) If and whenever the Corporation shall have failed to
declare and pay in cash the full amount of dividends payable on
the Preferred Stock on any eight (8) consecutive Dividend
Payment Dates, then and in such event the rate per annum of
dividends on the Preferred Stock shall be increased from $2.00
per share to the amounts set forth below for the periods set
forth below-.
Period Rate Per Annum
From eight (8) to $2.14 per share
twelve (12) consecutive
Dividend Payment Dates,
Greater than twelve con- $2.28 per share
secutive Dividend Payment
Dates.
Such rate per annum shall be and remain in effect until cash
dividends for the current Dividend Period have been declared and
funds therefor set apart, and when so paid and set apart, the
dividend rate per annum shall return to $2.00 per share of
Preferred Stock. The fact that dividends have been paid and set
apart as required by the preceding sentence shall be evidenced
by a certificate executed by the President and the chief
financial officer of the Corporation and delivered to the Board
of Directors. Nothing in this section shall cause a retroactive
increase in the dividend rate per share on the Preferred Stock
and the Rate per Annum set forth above shall apply only to
dividends accumulating during the applicable period of default.
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So long as any shares of Preferred Stock shall be outstanding,
the Corporation shall not declare or pay on any Junior Stock any
dividend whatsoever, whether in cash, property or otherwise
(other than dividends payable in shares of the class or series
upon which such dividends are declared or paid, or payable in
shares of Common Stock with respect to Junior Stock other than
Common Stock, together with cash in lieu of fractional shares),
nor shall the Corporation make any distribution on any Junior
Stock, nor shall any Junior Stock be purchased or redeemed by
the Corporation or any Subsidiary, nor shall any monies be paid
or made available for a sinking fund for the purchase or
redemption of any Junior Stock, unless all dividends to which
the holders of Preferred Stock shall have been entitled for all
previous Dividend Periods shall have been paid or declared and a
sum of money (with respect to cash dividends) sufficient for the
payment thereof set apart.
3 . Distributions Upon Liquidation, Dissolution or Winding Up.
In the event of any voluntary or involuntary liquidation,
dissolution or other winding up of the affairs of the
Corporation, subject to the prior preferences and other rights
of any Senior Stock, but before any distribution or payment
shall be made to the holders of Junior Stock, the holders of the
Preferred Stock shall be entitled to be paid the Liquidation
Value of all outstanding shares of Preferred Stock as of the
date of such liquidation or dissolution or such other winding
up, plus any accrued and unpaid dividends thereon to such date,
and no more, in cash or in property taken at its fair value as
determined by the Board of Directors, or both, at the election
of the Board of Directors. If such payment shall have been made
in full to the holders of the Preferred Stock, and if payment
shall have been made in full to the holders of any Senior Stock
and Parity Stock of all amounts to which such holders shall be
entitled, the remaining assets and funds of the Corporation
shall be distributed among the holders of Junior Stock,
according to their respective shares and priorities, If, upon
any such liquidation, dissolution or other winding up of the
affairs of the Corporation, the net assets of the Corporation
distributable among the holders of all outstanding shares of the
Preferred Stock and of any Parity Stock shall be insufficient to
permit the payment in full to such holders of the preferential
amounts to which they are entitled, then the entire net assets
of the Corporation remaining after the distributions to holders
of any Senior Stock of the full amounts to which they may be
entitled shall be distributed among the holders of the Preferred
Stock and of any Parity Stock ratably in proportion to the full
amounts to which they would otherwise be respectively entitled.
Neither the consolidation or merger of the Corporation into or
with another corporation or corporations, nor the sale of all or
substantially all of the assets of the Corporation to another
corporation or corporations shall be deemed a liquidation
dissolution or winding up of the affairs of the Corporation
within the meaning of this paragraph 3.
4. Redemption by the Corporation.
(a) The Preferred Stock shall not be redeemed in whole or in
part prior to seven years from date of authorization. On and
after seven years from date of authorization, the Preferred
Stock may be redeemed by the Corporation in cash at any time in
whole or (subject to the last sentence of subparagraph 4(b)
below, from time to time in part, at the option of the
Corporation, at a redemption price equal to the Liquidation
Value together, in the case of any such redemption, with any
accrued but unpaid dividends thereon to and including the date
of redemption.
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(b) If less than all of the outstanding shares of Preferred
Stock are to be redeemed, such shares shall be redeemed pro rata
or by lot as determined by the Board of Directors in its sole
discretion. The Corporation shall not redeem less than all of
the outstanding shares of Preferred Stock pursuant to
subparagraph 4(a) above at any time unless all cumulative
dividends on the Preferred Stock for all previous quarterly
Dividend Periods have been paid or declared and funds therefor
set apart for payment.
(c) Notice of every proposed redemption of Preferred Stock
shall be sent by or on behalf of the Corporation, by first class
mail, postage prepaid, to the holders of record of the shares to
be redeemed at their respective addresses as they shall appear
on the records of the Corporation, not less than thirty (30)
days nor more than sixty (60) days prior to the date fixed for
redemption (the "Redemption Date") (i) notifying such holders of
the election of the Corporation to redeem such shares and of the
date of redemption, (ii) stating the date on which the shares
cease to be convertible, and the Conversion Price, (iii) stating
the place or places at which the shares called for redemption
shall, upon presentation and surrender of the certificates
evidencing such shares, be redeemed, and the Redemption Price
therefor, and (iv) stating the name and address of any
Redemption Agent selected by the Corporation in accordance with
subparagraph 4(d) below, and the name and address of the
Corporation's transfer agent for the Preferred Stock. The
Corporation may act as the transfer agent for the Preferred
Stock.
(d) Prior to the date on which there shall have been a public
distribution of the Preferred Stock, the Corporation may act as
the redemption agent to redeem the Preferred Stock. Thereafter
the Corporation shall appoint as its agent for such purpose a
bank or trust company in good standing, organized under the laws
of the United States of America or any jurisdiction thereof, and
having capital, surplus and undivided profits aggregating at
least Twenty Million Dollars ($20,000,000), and may appoint any
one or more additional such agents which shall in each case be a
bank or trust company in good standing organized under the laws
of the United States of America or of any jurisdiction thereof,
having an office or offices in the City of Jacksonville,
Florida, or such other place as shall have been designated by
the Corporation, and having capital, surplus and undivided
profits aggregating at least Twenty Million Dollars
($20,000,000), The Corporation or such bank or trust company are
hereinafter referred to as the "Redemption Agent." Following
such appointment and prior to any redemption, the corporation
shall deliver to the Redemption Agent irrevocable written
instructions authorizing the Redemption Agent, on behalf and at
the expense of the Corporation, to cause such notice of
redemption to be duly mailed as herein provided as soon as
practicable after receipt of such irrevocable instructions and
in accordance with the above provisions. All funds necessary
for the redemption shall be deposited with the Redemption Agent
in trust at least two business days prior to the Redemption
Date, for the pro rata benefit of the holders of the shares so
called for redemption, so as to be and continue to be available
therefor. Neither failure to mail any such notice to one or
more such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption as to other
holders.
(e) If notice of redemption shall have been given as
hereinbefore provided, and the Corporation shall not default in
the payment of the Redemption Price, then each holder of shares
called for redemption shall be entitled to all preferences and
relative and other rights accorded by this
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resolution until and including the date prior to the Redemption
Date. If the Corporation shall default in making payment or
delivery as aforesaid on the Redemption Date, then each holder
of the shares called for redemption shall be entitled to all
preferences and relative and other rights accorded by this
resolution until and including the date prior to the date (the
"Final Redemption Date") when the Corporation makes payment or
delivery as aforesaid to the holders of the Preferred Stock.
From and after the Redemption Date or, if the Corporation shall
default in making payment or delivery as aforesaid, the Final
Redemption Date, the shares called for redemption shall no
longer be deemed to be outstanding, and all rights of the
holders of such shares shall cease and terminate, except the
right of the holders of such shares, upon surrender of
certificates therefor, to receive amounts to be paid hereunder.
The deposit of monies in trust with the Redemption Agent shall
be irrevocable except that the Corporation shall be entitled to
receive from the Redemption Agent the interest or other
earnings, if any, earned on any monies so deposited in trust,
and the holders of any shares redeemed shall have no claim to
such interest or other earnings, and any balance of monies so
deposited by the Corporation and unclaimed by the holders of the
Preferred Stock entitled thereto at the expiration of two (2)
years from the Redemption Date (or the Final Redemption Date, as
applicable) shall be repaid, together with any interest or other
earnings thereon, to the Corporation, and after any such
repayment, the holders of the shares entitled to the funds so
repaid to the Corporation shall look only to the Corporation for
such payment, without interest.
5. Conversion Rights. The Preferred Stock shall be convertible
into Common Stock as follows:
(a) Optional Conversion. Subject to and upon compliance with
the provisions of this paragraph 5, the holder of any shares of
Preferred Stock shall have the right at such holder's option, at
any time or from time to time, to convert such holders shares of
Preferred Stock into fully paid and nonassessable shares of
Common Stock at the Conversion Price (as hereinafter defined) in
effect on the Conversion Date (as hereinafter defined) upon the
terms hereinafter set forth. Shares of Preferred Stock shall be
convertible only in multiples of one thousand (1,000), or, if
any holder owes less than one thousand shares of Preferred
Stock, then such holder may convert all but not less than all of
such holder's shares on the terms herein. In case any share of
Preferred Stock is called for redemption, such right of
conversion shall terminate at the close of business on the fifth
day prior to the Redemption Date or, if the Corporation shall
default in the payment of the Redemption Price, at the close of
business on the fifth day prior to the Final Redemption Date,
(b) Automatic Conversion, Each outstanding share of Preferred
Stock shall automatically be converted, without any further act
of the Corporation or its stockholders, into fully paid and
nonassessable shares of Common Stock at the Conversion Price
then in effect upon the closing of an underwritten public
offering pursuant to an effective registration statement under
the Securities Act of 1933, as amended, covering the offering
and sale of the Common Stock for the account of the Corporation
in which the aggregate gross proceeds received by the
Corporation equals or exceeds $10,000,000,
(c) Conversion Price. Each share of Preferred Stock
shall be converted into a number of shares of Common Stock
determined by dividing (i) the sum of (A) the Liquidation Value
plus (B)
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any dividends on such share of Preferred Stock which such holder
is entitled to receive, but has not yet received by (ii) the
Conversion Price in effect on the Conversion Date. The
Conversion Price at which shares of Common Stock shall initially
be issuable upon conversion of the shares of Preferred Stock
shall be Two and 50/100ths Dollars ($2.50). The Conversion Price
shall be subject to adjustment as set forth in subparagraph
5(f). No payment or adjustment shall be made for any dividends
on the Common Stock issuable upon such conversion.
(d) Mechanics of Conversion. The holder of any shares of
Preferred Stock may exercise the conversion right specified in
subparagraph 5(a) by surrendering to the Corporation or any
transfer agent of the Corporation the certificate or
certificates for the shares to be converted, accompanied by
written notice specifying the number of shares to be converted
as provided herein. Upon the occurrence of the event specified
in subparagraph 5(b), the outstanding shares of Preferred Stock
shall be converted automatically without any further action by
the holders of such shares and whether or not the certificates
representing such shares are surrendered to the Corporation or
its transfer agent; provided that the Corporation shall not be
obligated to issue to any such holder certificates evidencing
the shares of Common Stock issuable upon such conversion unless
certificates evidencing the shares of Preferred Stock are either
delivered to the Corporation or any transfer agent of the
Corporation. Conversion shall be deemed to have been effected
on the date when delivery of notice of an election to convert
and certificates for shares is made or on the date of the
occurrence of the event specified in subparagraph 5(b), as the
case may be, and such date is referred to herein as the
"Conversion Date." Subject to the provisions of subparagraph
5(f)(vii), as promptly as practicable thereafter (and after
surrender of the certificate or certificates representing shares
of Preferred Stock to the Corporation or any transfer agent of
the Corporation in the case of conversions pursuant to
subparagraph 5(b)) the Corporation shall issue and deliver to or
upon the written order of such holder a certificate or
certificates for the number of full shares of Common Stock to
which such holder is entitled and a check or cash with respect
to any fractional interest in a share of Common Stock as
provided in subparagraph 5(e). Subject to the provisions of
subparagraph 5(f)(vii), the person in whose name the certificate
or certificates for Common Stock are to be issued shall be
deemed to have become a holder of record of such Common Stock on
the applicable Conversion Date. Upon conversion of only a
portion of the number of shares covered by a certificate
representing shares of Preferred Stock surrendered for
conversion (in the case of conversion pursuant to subparagraph
5(a)), the Corporation shall issue and deliver to or upon the
written order of the holder of the certificate so surrendered
for conversion at the expense of the Corporation, a new
certificate covering the number of shares of Preferred Stock
representing the unconverted portion of the certificate so
surrendered.
(e) Fractional Shares. No fractional shares of Common Stock or
scrip shall be issued upon conversion of shares of Preferred
Stock. Instead of any fractional shares of Common Stock which
would otherwise be issuable upon conversion of any shares of
Preferred Stock, the Corporation shall pay a cash adjustment in
respect of such fractional interest in an amount equal to that
fractional interest of the then Current Market Price.
(f) Conversion Price Adjustments. The Conversion Price shall be
subject to adjustment from time to time as follows:
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(i) Common Stock Issued at Less Than the
Conversion Price. If the Corporation shall issue any Common
Stock other than Excluded Stock (as hereinafter defined) without
consideration or for a consideration per share less than the
Conversion Price in effect immediately prior to such issuance,
the Conversion Price in effect immediately prior to each such
issuance shall immediately (except as provided below) be reduced
to the price determined by dividing (1) an amount equal to the
sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issuance multiplied by the Conversion
Price in effect immediately prior to such issuance multiplied by
the Conversion Price in effect immediately prior to such
issuance and (B) the consideration, if any, received by the
Corporation upon such issuance, by (2) the total number of
shares of Common Stock outstanding immediately after such
issuance.
For the purposes of any adjustment of the Conversion Price
pursuant to clause (i), the following provisions shall be
applicable
(A) Cash. In the case of the issuance of Common Stock for
cash, the amount of the consideration received by the
Corporation shall be deemed to be the amount of the cash
proceeds received by the Corporation for such Common Stock
before deducting therefrom any discounts, commissions, taxes or
other expenses allowed, paid or incurred by the Corporation for
any underwriting or otherwise in connection with the issuance
and sale thereof
(B) Consideration Other Than Cash. In the case of the issuance
of Common Stock (otherwise than upon the conversion of shares of
capital stock or other securities of the Corporation) for a
consideration in whole or in part other than cash, including
securities acquired in exchange therefor (other than securities
by their terms so exchangeable), the consideration other than
cash shall be deemed to be the fair value thereof as determined
by the Board of Directors, irrespective of any accounting
treatment; provided that such fair value as determined by the
Board of Directors shall not exceed the aggregate Current Market
Price of the shares of Common Stock being issued as of the date
the Board of Directors authorizes the issuance of such shares.
(C) Options and Convertible Securities. In the case of the
issuance of (i) options, warrants or other fights to purchase
or acquire Common Stock (whether or not at the time
exercisable), (ii) securities by their terms convertible into or
exchangeable for Common Stock (whether or not at the time so
convertible or exchangeable) or options, warrants or rights to
purchase such convertible or exchangeable securities (whether or
not at the time exercisable):
(1) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options, warrants or other
rights to purchase or acquire Common Stock shall be deemed to
have been issued at the time such options, warrants or rights
were issued and for a consideration equal to the consideration
(determined in the manner provided in subclauses (A) and (B)
above), if any, received by the Corporation upon the issuance of
such options, warrants or rights plus the minimum purchase price
provided in such options, warrants or rights for the Common
Stock covered thereby-,
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(2) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such
convertible or exchangeable securities, or upon the exercise of
options, warrants or other rights to purchase or acquire such
convertible or exchangeable securities and the subsequent
conversion or exchange thereof, shall be deemed to have been
issued at the time such securities were issued or such options,
warrants or rights were issued and for a consideration equal to
the consideration, if any, received by the Corporation for any
such securities and related options, warrants or rights
(excluding any cash received on account of accrued interest or
accrued dividends), plus the additional consideration
(determined in the manner provided in subclauses (A) and (B)
above), if any, to be received by the Corporation upon the
conversion or exchange of such securities, or upon the exercise
of any related options, warrants or rights to purchase or
acquire such convertible or exchangeable securities and the
subsequent conversion or exchange thereof,
(3) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options, warrants or
rights or conversion or exchange of such convertible or
exchangeable securities or any change in the consideration to be
received by the Corporation upon such exercise, conversion or
exchange, including, but not limited to, a change resulting from
the anti-dilution provisions thereof, the Conversion Price as
then in effect shall forthwith be readjusted to such Conversion
Price as would have been obtained had an adjustment been made
upon the issuance of such options, warrants or rights not
exercised prior to such change, or of such convertible or
exchangeable securities not converted or exchanged prior to such
change, upon the basis of such change;
(4) on the expiration or cancellation of any such options,
warrants or rights, or the termination of the right to convert
or exchange such convertible or exchangeable securities, if the
Conversion Price shall have been adjusted upon the issuance
thereof, the Conversion Price shall forthwith be readjusted to
such Conversion Price as would have been obtained had an
adjustment been made upon the issuance of such options,
warrants, rights or such convertible or exchangeable securities
on the basis of the issuance of only the number of shares of
Common Stock actually issued upon the exercise of such options,
warrants or rights, or upon the conversion or exchange of such
convertible or exchangeable securities; and
(5) if the Conversion Price shall have been adjusted upon the
issuance of any such options, warrants, rights or convertible or
exchangeable securities, no further adjustment of the Conversion
Price shall be made for the actual issuance of Common Stock upon
the exercise, conversion or exchange thereof, provided, however,
that no increase in the Conversion Price shall be made pursuant
to subclauses (1) or (2) of this subclause (C).
(ii) Excluded Stock. "Excluded Stock" shall mean (A) shares of
Common Stock issued or reserved for issuance by the Corporation
as a stock dividend payable in shares of Common Stock or upon
any subdivision or split-up of the outstanding shares of Common
Stock or Preferred Stock, or upon conversion of shares of
Preferred Stock and (B) 500,000 shares of Common Stock
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to be issued to key employees, consultants and advisors of the
Corporation together with any such shares that are repurchased
by the Corporation and reissued to any such employee, consultant
or advisor. All shares of Excluded Stock which the Corporation
has reserved for issuance shall be deemed to be outstanding for
all purposes of computations under subparagraph 5(f)(i).
(iii) Stock Dividends, Subdivisions, Reclassifications or
Combinations. If the Corporation shall (i) declare a dividend
or make a distribution on its Common Stock in shares of its
Common Stock, (ii) subdivide or reclassify the outstanding
shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify the outstanding Common Stock into a
smaller number of shares, the Conversion Price in effect at the
time of the record date for such dividend or distribution or the
effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the
holder of any shares of Preferred Stock surrendered for
conversion after such date shall be entitled to receive the
number of shares of Common Stock which he would have owned or
been entitled to receive had such Preferred Stock been converted
immediately prior to such date. Successive adjustments in the
Conversion Price shall be made whenever any event specified
above shall occur.
(iv) Other Distributions. In case the Corporation shall fix a
record date for the making of a distribution to all holders of
shares of its Common Stock (i) of shares of any class other than
its Common Stock or (ii) of evidence of indebtedness of the
Corporation or any Subsidiary or (iii) of assets (excluding cash
dividends or distributions, and dividends or distributions
referred to in subparagraph 5(f)(iii) above), or (iv) of rights
or warrants (excluding those referred to in subparagraph 5(f)(i)
above), in each such case the Conversion Price in effect
immediately prior thereto shall be reduced immediately
thereafter to the price determined by dividing (1) an amount
equal to the difference resulting from (A) the number of shares
of Common Stock outstanding on such record date multiplied by
the Conversion Price per share on such record date, less (B) the
fair market value (as determined by the Board of Directors,
whose determination shall be conclusive) of said shares or
evidences of indebtedness or assets or girths or warrants to be
so distributed, by (2) the number of shares of Common Stock
outstanding on such record date. Such adjustment shall be made
successively whenever such a record date is fixed. In the event
that such distribution is not so made, the Conversion Price then
in effect shall be readjusted, effective as of the date when the
Board of Directors determines not to distribute such shares,
evidences of indebtedness, assets, rights or warrants, as the
case may be, to the Conversion Price which would then be in
effect if such record date had not been fixed.
(v) Consolidation, Merger, Sale, Lease or Conveyance. In case
of any consolidation with or merger of the Corporation with or
into another corporation, or in case of any sale, lease or
conveyance to another corporation of the assets of the
Corporation as an entirety or substantially as an entirety, each
share of Preferred Stock shall after the date of such
consolidation, merger, sale, lease or conveyance be convertible
into the number of shares of stock or other securities or
property (including cash) to which the Common Stock issuable (at
the time of such consolidation, merger, sale, lease or
conveyance) upon conversion of such share of Preferred Stock
would have been entitled upon such consolidation, merger, sale,
lease or conveyance; and in any such case, if necessary, the
provisions set forth herein with respect to the rights and
interests thereafter of the holders of the shares of Preferred
Stock shall be appropriately adjusted so as to be applicable, as
nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the conversion
of the shares of Preferred Stock.
(vi) Rounding of Calculations; Minimum Adjustment. All
calculations under this subparagraph (f) shall be made to the
nearest cent or to the nearest one hundredth (1/100th) of a
share, as the case may be. Any provision of this paragraph 5 to
the contrary notwithstanding, no adjustment in the Conversion
Price shall be made if the amount of such adjustment would be
less than $0.05, but any such amount shall be carried forward
and an adjustment with respect thereto shall be made at the time
of and together with any subsequent adjustment which, together
with such amount and any other amount or amounts so carried
forward, shall aggregate $0.05 or more.
(vii) Timing of Issuance of Additional Common Stock Upon
Certain Adjustments. In any case in which the provisions of
this subparagraph (f) shall require that an adjustment shall
become effective immediately after a record date for an event,
the Corporation may defer until the occurrence of such event (A)
issuing to the holder of any share of Preferred Stock converted
after such record date and before the occurrence of such event
the additional shares of Common Stock issuable upon such
conversion by reason of the adjustment required by such event
over and above the shares of Common Stock issuable upon such
conversion before giving effect to such adjustment and (B)
paying to such holder any amount of cash in lieu of a fractional
share of Common Stock pursuant to subparagraph (e) of this
paragraph 5 provided that the Corporation upon request shall
deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such
additional shares, and such cash, upon the occurrence of the
event requiring such adjustment.
(g) Current Market Price. The Current Market Price at any date
shall mean, in the event the Common Stock is publicly traded,
the average of the daily closing prices per share of Common
Stock for 30 consecutive trading days ending no more than 15
business days before such date (as adjusted for any stock
dividend, split, combination or reclassification that took
effect during such 30 business day period). The closing price
for each day shall be the last reported sale price regular way
or, in case no such reported sale takes place on such day, the
average of the last closing bid and asked prices regular way, in
either case on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or if
not listed or admitted to trading on any national securities
exchange, the closing sale price for such day reported by
NASDAQ, if the Common Stock is traded over-the-counter and
quoted in the National Market System, or if the Common Stock is
so traded, but not so quoted, the average of the closing
reported bid and asked prices of the Common Stock as reported by
NASDAQ or any comparable system or, if the Common Stock is not
listed on NASDAQ or any comparable system, the average of the
closing bid and asked prices as furnished by two members of the
National Association of Securities Dealers, Inc. selected from
time to time by the Corporation for that purpose. If the Common
Stock is not traded in such manner that the quotations referred
to above are available for the period required hereunder,
Current Market Price per share of Common Stock shall be deemed
to be the fair value as determined by the Board of Directors,
irrespective of any accounting treatment.
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(h) Statement Regarding Adjustments. Whenever the
Conversion Price shall be adjusted as provided in subparagraph
5(f), the Corporation shall forthwith file, at the office of any
transfer agent for the Preferred Stock and at the principal
office of the Corporation, a statement showing in detail the
facts requiring such adjustment and the Conversion Price that
shall be in effect after such adjustment, and the Corporation
shall also cause a copy of such statement to be sent by mail,
first class postage prepaid, to each holder of shares of
Preferred Stock at its address appearing on the Corporation's
records. Each such statement shall be signed by the
Corporation's independent public accountants, if applicable.
Where appropriate, such copy may be given in advance and may be
included as part of a notice required to be mailed under the
provisions of subparagraph 5(i).
(i) Notice to Holders. In the event the Corporation shall
propose to take any action of the type described in clause (i)
(but only if the action of the type described in clause (i)
would result in an adjustment in the Conversion Price), (iii),
(iv) or (v) of subparagraph 5(f), the Corporation shall give
notice to each holder of shares of Preferred Stock, in the
manner set forth in subparagraph 5(h), which notice shall
specify the record date, if any, with respect to any such action
and the approximate date on which such action is to take place.
Such notice shall also set forth such facts with respect thereto
as shall be reasonably necessary to indicate the effect of such
action (to the extent such effect may be known at the date of
such notice) on the Conversion Price and the number, kind or
class of shares or other securities or property which shall be
deliverable upon conversion of shares of Preferred Stock, In the
case of any action which would require the fixing of a record
date, such notice shall be given at least 10 days prior to the
date so fixed, and in case of all other action, such notice
shall be given at least 15 days prior to the taking of such
proposed action. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of any such
action.
(j) Treasury Stock. For the purposes of this paragraph 5, the
sale or other disposition of any Common Stock theretofore held
in the Corporation's treasury shall be deemed to be an issuance
thereof
(k) Costs. The Corporation shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the
issuance or delivery of shares of Common Stock upon conversion
of any shares of Preferred Stock; provided that the Corporation
shall not be required to pay any taxes which may be payable in
respect of any transfer involved in the issuance or delivery of
any certificate for such shares in a name other than that of the
holder of the shares of Preferred Stock in respect of which such
shares are being issued.
(1) Reservation of Shares. The Corporation shall reserve at
all times so long as any shares of Preferred Stock remain
outstanding, free from preemptive rights, out of its authorized
but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of Preferred Stock,
sufficient shares of Common Stock to provide for the conversion
of all outstanding shares of Preferred Stock.
(m) Approvals. If any shares of Common Stock to be reserved
for the purpose of conversion of shares of Preferred Stock
require registration with or approval of any governmental
authority under any Federal or state law before such shares may
be validly issued or delivered upon
13
conversion, then the Corporation will in good faith and as
expeditiously as possible endeavor to secure such registration
or approval, as the case may be. If, and so long as, any Common
Stock into which the shares of Preferred Stock are then
convertible is listed on any national securities exchange, the
Corporation will, if permitted by the rules of such exchange,
list and keep listed on such exchange, upon official notice of
issuance, all shares of such Common Stock issuable upon
conversion.
(n) Valid Issuance. All shares of Common Stock which may be
issued upon conversion of the shares of Preferred Stock will
upon issuance by the Corporation be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof, and the
Corporation shall take no action which will cause a contrary
result (including without limitation, any action which would
cause the Conversion Price to be less than the par value, if
any, of the Common Stock).
6. Voting Rights.
(a) Except as expressly set forth herein or required by law,
the holders of the issued and outstanding shares of Preferred
Stock shall have no voting rights.
(b) Without the consent of the holders of at least-.
(i) a majority of the shares of Preferred Stock then
outstanding, given in writing or by vote at a meeting of
stockholders called for such purpose, the Corporation will not
increase the authorized amount of Preferred Stock; and
(ii) a majority of the shares of Preferred Stock then
outstanding, given in writing or by vote at a meeting of
stockholders called for such purpose, the Corporation will not
amend, alter or repeal any provision of the Certificate of
Incorporation or this Certificate so as to adversely affect the
rights, preferences or privileges of the Preferred Stock.
7. Capital. On any redemption of Preferred Stock, the
Corporation's capital shall be reduced by an amount equal to the
Subscription Price multiplied by the number of shares of
Preferred Stock redeemed on such date. The provisions of this
paragraph 7 shall apply to all certificates representing
Preferred Stock whether or not all such certificates have been
surrendered to the Corporation.
8 . Covenants. In addition to any other rights provided by law,
so long as any Preferred Stock is outstanding, the corporation,
without first obtaining the affirmative vote or written consent
of the holders of not less than a majority of such outstanding
shares of Preferred Stock, will not:
(a) amend or repeal any provision of, or add any provision to,
the Corporation's Certificate of Incorporation or By-Laws if
such action would alter adversely or change the preferences,
rights, privileges or powers of, or the restrictions provided
for the benefit of, any Preferred Stock, or increase or decrease
the number of shares of Preferred Stock authorized hereby-,
14
(b) reclassify any class or series of any Junior Stock into
Parity Stock or Senior Stock or reclassify any series of Parity
Stock into Senior Stock;
(c) pay or declare any dividend on any Junior Stock
(other than dividends payable in shares of the class or series
upon which such dividends are declared or paid, or payable in
shares of Common Stock with respect to Junior Stock other than
Common Stock, together with cash in lieu of fractional shares
and dividends not in excess of dividends paid to the Preferred
Stock) while the Preferred Stock remains outstanding, or apply
any of its assets to the redemption, retirement, purchase or
acquisition, directly or indirectly, through subsidiaries or
otherwise, of any Junior Stock, except from employees of the
Corporation upon termination of employment or otherwise pursuant
to the terms of stock purchase or option agreements providing for
the repurchase of, or right of first refusal with respect to, such
Junior Stock; or
(d) materially change the principal business of the Corporation.
9. Exclusion of Other Rights. Except as may otherwise be
required by law, the shares of Preferred Stock shall not have
any preferences or relative, participating, optional or other
special rights, other than those specifically set forth in this
resolution (as such resolution may be amended from time to time)
and in the Corporation's Certificate of Incorporation. The
shares of Preferred Stock shall have no preemptive or
subscription rights.
10. Headings of Subdivisions. The headings of the various
subdivisions hereof are for convenience of reference only and
shall not affect the interpretation of any of the provisions
hereof.
11. Severability of Provisions. If any right, preference or
limitation of the Preferred Stock set forth in this resolution
(as such resolution may be amended from time to time) is
invalid, unlawful or incapable of being enforced by reason of
any rule of law or public policy, all other rights, preferences
and limitations set forth in this resolution (as so amended)
which can be given effect without the invalid, unlawful or
unenforceable right, preference or limitation shall,
nevertheless, remain in full force and effect, and no right,
preference or limitation herein set forth shall be deemed
dependent upon any other such right, preference or limitation
unless so expressed herein.
12. Status of Reacquired Shares. Shares of Preferred Stock
which have been issued and reacquired in any manner shall (upon
compliance with any applicable provisions of the laws of the
State of Florida, have the status of authorized and unissued
shares of Preferred Stock issuable in series undesignated as to
series and may be redesignated and reissued.
[The remainder of this page left blank intentionally,]
15
In witness whereof, General Parcel Service, Inc. has caused this
Certificate to be signed in its name by its President and its corporate
seal to be hereunto affixed and attested by its Assistant Secretary this
24th day of September, 1996.
GENERAL PARCEL SERVICE, INC.
By: (Signed)
E. Hoke Smith, Jr.
President
Attest: (Signed)
Wayne Nellums
Secretary
