SS: Form D-4
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MAIL TO:
Colorado Secretary of State
Corporations Office
1560 Broadway, Suite 200
Denver, Colorado 80202
(303) 894-2251
ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION
of the
THE QUIZNO’S CORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is: The Quizno's Corporation.
SECOND: The following amendment to the Amended and Restated
Articles of Incorporation was duly adopted by the Board of Directors without
shareholder action at a meeting duly held on March 22, 2000, in accordance
with the provisions of Section 7-106-102 of the Colorado Business Corporation
Act.
"RESOLVED, that Article II of the Amended and Restated Articles of
Incorporation is hereby amended by adding the following paragraph to
Article II:
"Class E Cumulative Convertible Preferred Stock.
a. General. One hundred fifty thousand (150,000) shares of
authorized preferred stock are hereby designed as Class E Cumulative
Convertible Preferred Stock (the "Class E Preferred Stock").
b. Conversion.
(i) Subject to the following paragraphs, each share of Class E Preferred
Stock shall be convertible into one (1) share of the
Corporation's common stock (the "Common Stock") on any
of the monthly dividend payment dates set forth in
paragraph d below, at any time prior to the redemption
date after the notice of redemption provided for in
paragraph c below has been delivered.
(ii) If at any time the Corporation reorganizes,
consolidates, merges, exchanges shares, or sells, leases,
exchanges or transfers all or substantially all of its
assets, then as a part of such reorganization,
consolidation, merger, share exchange or sale, lease,
exchange or transfer, provision shall be made so that each
holder of shares of Class E Preferred Stock will
thereafter be entitled to receive upon conversion of his
shares of Class E Preferred Stock, the number of shares of
stock or other securities or property of the Corporation,
or successor corporation resulting from such
reorganization, consolidation, merger, share exchange or
sale, lease, exchange or transfer, which the holder would
have received had he converted his shares of Class E
Preferred Stock immediately prior to the effective time of
such reorganization, consolidation, merger, share exchange
or sale, lease, exchange or transfer.
(iii) In case the Corporation shall (i) declare or pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
to holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares of Common Stock
or (iv) issue any shares of its capital stock in a reclassification of
the Common Stock, then the number of shares of Common Stock issuable
upon conversion of the Class E Preferred Stock immediately prior
thereto shall be adjusted so that the holders of Class E Preferred
Stock shall be entitled to receive the kind and number of shares of
Common Stock or other securities of the Corporation which they would
have owned or have been entitled to receive had such Class E Preferred
Stock been converted in advance thereof. An adjustment made pursuant
to this subparagraph shall become effective immediately after the
effective date of such event retroactive to the record date, if any,
for such event.
c. Redemption., At the option of the Corporation, shares of Class E
Preferred Stock may be redeemed, in whole or in part, on any of the
monthly dividend payment dates set forth in paragraph d below, on or
after April 1 2003, at a redemption price of $8.62 per share, plus an
amount equal to unpaid cumulative dividends accrued to the date of
redemption as provided in paragraph d below, so long as the holder of
such shares of Class E Preferred Stock is given sixty (60) days notice
of such redemption.
d. Dividends. The holder of record of each share of Class E
Preferred Stock shall receive a cumulative monthly dividend of $0.0862
per share of Class E Preferred Stock. Dividends on the Class E
Preferred Stock shall be payable, out of funds at the time legally
available for payment of dividends, in equal monthly amounts on the
first business day of each month in each year beginning with April,
2000, for so long as shares of the Class E Preferred Stock are
outstanding, except that dividends on the shares of Class E Preferred
Stock payable on the first dividend payment date shall commence to
accrue and shall be cumulative from and including March 22, 2000.
Dividends shall be paid as provided above, unless the Board of
Directors of the Corporation determine as to a specific dividend that
it is in the best interests of the Corporation to put such funds to
other use. If such dividend is not paid as of any such monthly
dividend payment date, the right to such payment shall accrue to the
holders of the shares of the Class E Preferred Stock and become an
obligation of the Corporation until paid in full. No dividends, other
than dividends payable solely in shares ranking junior to the Class E
Preferred Stock, shall be paid or set apart for payment on any shares
ranking junior to the Class E Preferred Stock unless and until all
accrued and unpaid dividends on the Class E Preferred Stock, shall have
been paid or a sum sufficient for payment thereof set apart. Whether
another series of preferred stock is senior, substantially equal or
junior to the Class E Preferred Stock will be determined by the
Corporation's Board of Directors, subject to the voting requirements of
the Colorado Business Corporation Act. However, Class E Preferred
Stock shall be ranked junior to both the Corporation’s Class A
Cumulative Convertible Preferred Stock (“Class A Preferred Stock”) and
Class C Cumulative Convertible Preferred Stock (“Class C Preferred
Stock”), but shall be ranked senior to the Corporations’s Class D
Subordinated Convertible Preferred Stock (“Class D Preferred Stock”).
e. Liquidation or Dissolution. In the event of any voluntary or
involuntary liquidation, or winding up, of the affairs of the
Corporation, the holders of the issued and outstanding Class E
Preferred Stock shall be entitled to receive for each share of Class E
Preferred Stock, a dollar amount equal to $8.62 plus all then accrued
and unpaid cumulative dividends, before any distribution of the assets
of the Corporation shall be made to the holders of any other capital
stock, except for holders of Class A Preferred Stock and Class C
Preferred Stock, which classes shall be ranked senior to Class E
Preferred Stock in connection with the liquidation preferences under
this paragraph e. The Corporation may not pay any amount in the event
of a liquidation or winding up of the Corporation, to the holders of
any Common Stock, or any other capital stock of the Corporation ranked
junior to the Class E Preferred Stock, unless and until the Corporation
has redeemed the Class E Preferred Stock or the holders of the Class E
Preferred Stock have received their full liquidation preferences as
provided herein. However, no funds can be paid on the liquidation or
dissolution of the Corporation to the holders of the Class E Preferred
Stock, unless all amounts due and owing upon liquidation or dissolution
of the Corporation to the holders of the Class A Preferred Stock and
the Class C Preferred Stock of the Corporation and any other capital
stock ranked senior to the Class E Preferred Stock, shall have been in
full. A reorganization, consolidation or merger of the Corporation, a
share exchange, a sale, lease, exchange or transfer of all or
substantially all of its assets as an entirety, or any purchase or
redemption of stock of the Corporation of any class, shall not be
regarded as a "liquidation, dissolution, or winding up of the affairs
of the Corporation" within the meaning of this paragraph e.
f. Voting Rights. Except as otherwise expressly provided in the
Colorado Business Corporation Act, holders of Class E Preferred Stock
shall have no right to vote for the election of directors or for any
other purpose, provided, however, that holders of a majority of the
Class E Preferred Stock shall be required to vote in favor of any
proposal to issue a series of preferred stock of the Corporation which
is to be senior as to dividends or liquidation preferences to the Class
E Preferred Stock before such preferred stock may be issued by the
Corporation.
g. Registration Under the Securities Act of 1933.
(i) Whenever the Corporation files a registration statement with the
United States Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Act"), or pursuant to any
other act passed after the date hereof, which filing provides for the
sale of securities by the Corporation to the public, or files a
Regulation A Offering Statement under the Act, the Corporation shall
offer to the holders of the Class E Preferred Stock or of any shares of
Common Stock issued upon conversion of the Class E Preferred Stock, the
opportunity to register or qualify the shares issued or to be issued
upon conversion of the Class E Preferred Stock at the holders' sole
expense, regardless of whether the holder or holders of the Class E
Preferred Stock may have previously availed themselves of any of the
registration rights described in this paragraph g; provided, however,
that in the case of a Regulation A offering, the opportunity to qualify
shall be limited to the amount of the available exemption after taking
into account the securities that the Corporation wishes to qualify.
However, if an underwriter or sales agent determines in good faith that
the then current market conditions make it inadvisable to offer selling
shareholder shares to the public or to limit the amount of such shares,
the holders shall comply with such determination. Notwithstanding
anything to the contrary, this subparagraph (i) shall not be applicable
to a registration statement on Forms S-4, S-8 or their successors or
any other inappropriate forms filed by the Corporation with the United
States Securities and Exchange Commission.
The Corporation shall deliver written notice to the holder or holders
of the Class E Preferred Stock and to any holders of the shares of
Common Stock issued upon conversion of the Class E Preferred Stock of
its intention to file a registration statement or Regulation A Offering
Statement under the Act at least 60 days prior to the filing of such
registration statement or offering statement, and the holder or holders
shall have 30 days thereafter to request in writing that the
Corporation register or qualify the shares of Common Stock to be issued
upon conversion in accordance with this subparagraph (i). Upon the
delivery of such a written request within the specified time, the
Corporation shall be obligated to include in its contemplated
registration statement or offering statement all information necessary
or advisable to register or qualify the shares issuable upon conversion
for a public offering, if the Corporation does file the contemplated
registration statement or offering statement; provided, however, that
neither the delivery of the notice by the Corporation nor the delivery
of a request by a holder shall in any way obligate the Corporation to
file a registration statement or offering statement. Furthermore,
notwithstanding the filing of a registration statement or offering
statement, the Corporation may, at any time prior to the effective date
thereof, determine not to offer the securities to which the
registration statement or offering statement relates, including the
shares to be issued upon conversion.
Holders exercising their rights hereunder shall pay all expenses
relating to their shares being sold pursuant to the registration
statement, including their pro rata share of legal, accounting,
consulting, printing, federal and state filing fees, NASD fees,
out-of-pocket expenses incurred by counsel, underwriting commissions,
transfer taxes and the underwriter's accountable and non-accountable
expense allowances attributable to the offer and sale of the shares to
be issued upon conversion, accountants and consultants retained by the
Corporation, and miscellaneous expenses directly related to the
registration statement or offering statement and the offering.
(ii) In the event that the Corporation registered or qualifies the
shares issuable upon conversion pursuant to subparagraph (i) above, the
Corporation shall include in the registration statement or
qualification, and the prospectus included therein, all information and
materials necessary or advisable to comply with the applicable statutes
and regulations so as to permit the public sale of the shares issuable
upon conversion. As used in subparagraph (i) of this paragraph g.,
reference to the Corporation's securities shall include, but not be
limited to, any class or type of the Corporation's securities or the
securities of any of the Corporation's subsidiaries or affiliates.
(iii) In addition to the registration rights described in
subparagraph (i) above, upon the written request of any holder of the
Class E Preferred Stock or any shares issued upon conversion thereof,
the Corporation, as promptly as possible after delivery of such
request, shall make all reasonable efforts to cooperate with the
requesting holder in preparing and signing any registration statement
or offering statement under any applicable federal or state law that
the holder may desire to file in order to sell or transfer the shares
issuable or issued upon conversion. Within 10 days after the delivery
of the written request described above, the Corporation shall deliver
written notice to all other holders of the Class E Preferred Stock or
any shares issued upon conversion thereof, if any, advising them that
the Corporation is proceeding with a registration statement or offering
statement and that their shares issued or issuable upon conversion will
be included therein if they so desire and agree to pay their pro rata
share of the costs of registration or qualification and provided that
the holder delivers written notice to the Corporation of his desire to
be included and his agreement to pay his pro rata share of the cost
within 30 days after the delivery of the Corporation's notice to him.
The Corporation will supply all information necessary or advisable for
any such registration statements or offering statements; provided,
however, that all the costs and expenses of such registration
statements or offering statements shall be borne, in a manner
proportionate to the number of securities for which they indicate a
desire to register, by the holders of the Class E Preferred Stock and
the holders of shares issued upon conversion thereof who seek the
registration or qualification of their shares issuable or issued upon
conversion. In determining the amount of costs and expenses to be
borne by those holders, the only costs and expenses of the Corporation
to be included are the additional costs and expenses that would not
have otherwise been incurred by the Corporation if those holders had
not desired to file a registration statement or offering statement. As
an example, and without limitation, audit fees would not be charged to
those holders if or to the extent that the Corporation would have
incurred the same audit fees for its year-end or other use in the
absence of the registration statement or offering statement. The
holders responsible for the costs and expenses shall reimburse the
Corporation for those reimbursable costs and expenses reasonably
incurred by the Corporation within 30 days after the initial effective
date of the registration statement or qualification at issue.
No other securities of the Corporation of any type shall be included
in, be the subject of, or be publicly offered pursuant to, any
registration statement or offering statement filed within 120 days
following the latest effective date of any registration statement or
offering statement filed pursuant to this subparagraph (iii)
IN WITNESS WHEREOF, The Quizno’s Corporation has caused these Articles
of Amendment to its Articles of Incorporation to be signed by its Vice
President and General Counsel, effective as of the date of filing with the
Secretary of State of the State of Colorado.
THE QUIZNO’S CORPORATION
By /s/Patrick E. Meyers
Patrick E. Meyers
Its Vice President and General Counsel
