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Exhibit 3.1
TURBOCHEF TECHNOLOGIES, INC.
_______________
CERTIFICATE OF DESIGNATION
OF
SERIES A CONVERTIBLE
PREFERRED STOCK
(Pursuant to Section 151 of the Delaware General
Corporation Law)
________________
The undersigned, the authorized officer of TurboChef Technologies,
Inc., a Delaware corporation (the "Corporation"), in accordance with the
provisions of Section 103 of the Delaware General Corporation Law (the "DGCL")
does hereby certify that, in accordance with Section 141 of the DGCL, the
following resolution was duly adopted by the Board of Directors of the
Corporation on August 11, 2000:
RESOLVED, that the Board of Directors, pursuant to authority expressly
vested in it by the provisions of the Certificate of Incorporation of the
Corporation, hereby authorizes the issuance from the future of a series of
Preferred Stock, par value $.01 per share, of the Corporation, and hereby fixes
the designation, preferences, rights and the qualifications, limitations and
restrictions thereof, in addition to those set forth in the Certificate of
Incorporation of the Corporation, as follows:
SERIES A CONVERTIBLE
PREFERRED STOCK
Section 1. Designation and Amount: Stated Capital. The shares of such
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series shall be designated as "Series A Convertible Preferred Stock" (the
"Series A Convertible Preferred Stock"), the par value thereof shall be $.01 per
share and the number of shares constituting the Series A Convertible Preferred
Stock shall be 50,000. The amount to be represented in stated capital at all
times for each share of Series A Convertible Preferred Stock shall be $.01.
Section 2. Rank. With respect to dividend rights and rights on
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liquidation, winding-up and dissolution, the Series A Convertible Preferred
Stock will rank: (i) senior to: (A) the common stock, par value $.01 per share
(the "Common Stock"); (B) all other classes of common stock and (C) each other
class or series of preferred stock of the Corporation now or hereafter
established by the Board of Directors (the "Board of Directors" or the "Board")
of the Corporation, the terms of which do not expressly provide that it ranks
senior to, or on a parity with, the Series A Convertible Preferred Stock as to
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dividend and redemption rights and rights on liquidation, winding-up and
dissolution of the Corporation (collectively referred to as "Junior Stock");
(ii) on a parity with each other class or series of preferred stock of the
Corporation established hereafter by the Board of Directors, the terms of which
expressly provide that such class or series will rank on a parity with the
Series A Convertible Preferred Stock as to dividend and redemption rights and
rights on liquidation, winding-up and dissolution (collectively referred to as
"Parity Stock"); and (iii) junior to each class or series of preferred stock of
the Corporation established hereafter by the Board, the terms of which class or
series expressly provide that such class or series will rank senior to the
Series A Convertible Preferred Stock as to dividend and redemption rights or
rights on liquidation, winding-up and dissolution of the Corporation
(collectively referred to as "Senior Stock").
Section 3. Dividends and Distributions.
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(a) The holders of shares of Series A Convertible Preferred Stock
shall be entitled to receive dividends at the rate of $7.00 per share of the
Series A Convertible Preferred Stock per annum, and no more, payable in shares
of Common Stock upon conversion of the Series A Convertible Preferred Stock in
accordance with Section 6 hereof; provided, however, that if less than an
aggregate of 50,000 shares of Series A Convertible Preferred Stock shall be
issued and outstanding on the 60th day following the date of the first issuance
of shares of Series A Convertible Preferred Stock, the holders of shares of
Series A Convertible Preferred Stock shall not be entitled to receive any
dividends whatsoever.
Section 4. Liquidation Preference. In the event of a liquidation,
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dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of Series A Convertible Preferred Stock shall be entitled to receive
out of the assets of the Corporation, whether such assets constitute stated
capital or surplus of any nature, a sum in cash equal to $100.00 per share (the
"Liquidation Preference"), together with an amount equal to the dividends
accrued and unpaid thereon (whether or not declared) to the date of final
distribution to such holders, without interest, and no more, before any payment
shall be made or any assets distributed to the holders of any Junior Stock;
provided, however, that such rights shall accrue to the holders of Series A
Convertible Preferred Stock only if the Corporation's payments with respect to
the liquidation preference of the holders of Senior Stock are fully met. After
the liquidation preferences of the Senior Stock are fully met, the entire assets
of the Corporation available, for distribution shall be distributed ratably
among the holders of the Series A Convertible Preferred Stock and any Parity
Stock in proportion to the respective preferential amounts to which each is
entitled (but only to the extent of such preferential amounts). After payment
in full of the accrued and unpaid dividends and the Liquidation Preference of
the shares of Series A Convertible Preferred Stock as provided in this Section
4, the holders of such shares shall not be entitled to any further participation
in any distribution of assets by the Corporation. Neither a consolidation or
merger of the Corporation with another corporation nor a sale or transfer of all
or part of the Corporation's assets for cash, securities or other property will
be considered a liquidation, dissolution or winding up of the Corporation.
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Section 5. No Sinking Fund.
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The shares of Series A Convertible Preferred Stock shall not be
subject to the operation of a purchase, retirement or sinking fund.
Section 6. Conversion.
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(a) On the date on which the Corporation's next generation oven (the
current generation being the Maytag Accellis) becomes generally available for
delivery to consumers in the United States, in the sole determination by the
Corporation (the "Conversion Date"), the Series A Convertible Preferred Stock
will automatically be converted into Common Stock. Each share of Series A
Convertible Preferred Stock shall be convertible at the Corporation's office
into that number of fully paid and nonassessable shares of Common Stock
(calculated as to each conversion to the nearest 1/100th of a share) as shall
be equal to the Conversion Rate (as hereinafter defined), in effect at the time
of conversion. The "Conversion Rate" shall be equal to a fraction, (i) the
numerator of which is equal to the Liquidation Value plus accrued and unpaid
interest though the Conversion Date and (ii) the denominator is the Stock Price
(as hereinafter defined). The "Stock Price" shall be equal to the average
Closing Price (as hereinafter defined) of the Common Stock for the twenty (20)
consecutive trading days ending on the date which immediately precedes the
90th day prior to the Conversion Date (the "Average Closing Price"); provided,
however, that if less than an aggregate of 50,000 shares of Series A Convertible
Preferred Stock shall be issued and outstanding on the 60th day following the
date of the first issuance of shares of Series A Convertible Preferred Stock,
the Stock Price shall be equal to two times the Average Closing Price. The
"Closing Price" for each day for any security shall be the last reported sales
price regular way or, in case no sale takes place on such day, the average of
the closing bid and asked prices regular way on such day, in either case as
reported on the principal national securities exchange on which such security is
listed or quoted (including, for this purpose, the Nasdaq Stock Market), or, if
not so listed or quoted, the average of the high bid and low asked prices on
such day as recorded by the Nasdaq Stock Market, or, if the Nasdaq Stock Market
shall not have reported any bid and asked prices for such security on such day,
the average of the bid and asked prices for such day as furnished by any New
York Stock Exchange member firm selected from time to time by the Corporation
for such purpose, or, if no such bid and asked prices can be obtained from any
such firm, the fair market value of such security on such day as determined in
good faith by the Board of Directors. Such determination by the Board of
Directors shall be conclusive. Notwithstanding anything in this Section 6 to
the contrary, no change in the Conversion Rate shall actually be made until the
cumulative effect of the adjustments called for by this Section 6 since the date
of the last change in the Conversion Rate would change the Conversion Rate by
more than 1%. However, once the cumulative effect would result in such a
change, the Conversion Rate shall actually be changed to reflect all adjustments
called for by this Section 6 and not previously made.
(b) The right of the holders of Series A Convertible Preferred Stock
to convert their shares shall be exercised by surrendering for such purposes to
the
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Corporation or its agent, as provided above, certificates representing shares to
be converted, duly endorsed in blank or accompanied by proper instruments of
transfer and a notice of conversion. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery upon conversion of shares of Common Stock or other
securities or property in a name other than that of the holder of the shares of
the Series A Convertible Preferred Stock being converted, and the Corporation
shall not be required to issue or deliver any such shares or other securities or
property unless and until the person or persons requesting the issuance thereof
shall have paid to the Corporation the amount of any such tax or shall have
established to the satisfaction of the Corporation that such tax has been paid.
(c) The Corporation (and any successor corporation) shall take all
action necessary so that a number of shares of the authorized but unissued
Common Stock (or common stock in the case of any successor corporation)
sufficient to provide for the conversion of the Series A Convertible Preferred
Stock outstanding upon the basis hereinbefore provided are at all times reserved
by the Corporation (or any successor corporation), free from preemptive rights,
for such conversion, subject to the provisions of Section 6(d). If the
Corporation shall issue any securities or make any change in its capital
structure which would change the number of shares of Common Stock into which
each share of the Series A Convertible Preferred Stock shall be convertible as
herein provided, the Corporation shall at the same time also make proper
provision so that thereafter there shall be a sufficient number of shares of
Common Stock authorized and reserved, free from preemptive rights, for
conversion of the outstanding Series A Convertible Preferred Stock on the new
basis.
(d) In case of any consolidation or merger of the Corporation with
any other corporation or in case of any sale or transfer of all or substantially
all of the assets of the Corporation, or in the case of any share exchange, in
each case pursuant to which all of the outstanding shares of Common Stock are
converted into other securities, cash or other property, the Corporation shall
make appropriate provision or cause appropriate provision to be made so that
each holder of shares of Series A Convertible Preferred Stock then outstanding
shall have the right thereafter (in lieu of the right to convert into Common
Stock, which right shall cease) to convert such shares of Series A Convertible
Preferred Stock into the kind and amount of securities, cash or other property
receivable upon such consolidation, merger, sale, transfer or share exchange by
a holder of the number of shares of Common Stock into which such shares of
Series A Convertible Preferred Stock could have been converted immediately prior
to the effective date of such consolidation, merger, sale, transfer or share
exchange. If, in connection with any such consolidation, merger, sale, transfer
or share exchange, each holder of shares of Common Stock is entitled to elect to
receive either securities, cash or other property upon completion of such
transaction, the Corporation shall provide or cause to be provided each holder
of Series A Convertible Preferred Stock the right to elect the securities, cash
(other than by the exercise of appraisal rights) or other property into which
the Series A Convertible Preferred Stock held by such holder shall be
convertible after completion of any such transaction on the same terms and
subject to the same conditions applicable to holders of the Common Stock
(including,
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without limitation, notice of the right to elect, limitations on the period in
which such election shall be made and the effect of failing to exercise the
election). The Corporation shall not effect any such transaction unless the
provisions of this Section 6(d) have been complied with. The above provisions
shall similarly apply to successive consolidations, mergers, sales, transfers or
share exchanges.
(e) Upon the surrender of certificates representing shares of Series
A Convertible Preferred Stock, the person converting shall be deemed to be the
holder of record of the Common Stock issuable upon such conversion, and all
rights with respect to the shares surrendered shall forthwith terminate except
the right to receive the Common Stock or other securities, cash or other
property as herein provided.
(f) No fractional shares of Common Stock shall be issued upon
conversion of Series A Convertible Preferred Stock but, in lieu of any fraction
of a share of Common Stock which would otherwise be issuable in respect of the
aggregate number of such shares surrendered for conversion at one time by the
same holder, the Corporation shall pay in cash an amount equal to the product of
(i) the Stock Price and (ii) such fraction of a share.
(g) The Conversion Rate shall be adjusted from time to time under
certain circumstances, subject to the provisions of the last two sentences of
Section 6(a), in case the Corporation shall (i) pay a dividend or make a
distribution on its Common Stock in shares of its capital stock, (ii) subdivide
its outstanding Common Stock into a greater number of shares, (iii) combine the
shares of its outstanding Common Stock into a smaller number of shares, or (iv)
issue by reclassification of its Common Stock any shares of its capital stock,
then in each such case the Conversion Rate in effect immediately prior thereto
shall be proportionately adjusted so that the holder of any Series A Convertible
Preferred Stock thereafter surrendered for conversion shall be entitled to
receive, to the extent permitted by applicable law, the number and kind of
shares of capital stock of the Corporation which it would have owned or have
been entitled to receive after the happening of such event had such Series A
Convertible Preferred Stock been converted immediately prior to the record date
for such event (or if no record date has been established in connection with
such event, the effective date for such action). An adjustment pursuant to this
Section 6(g) shall become effective immediately after the record date in the
case of a stock dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination, or
reclassification. All calculations hereunder shall be made to the nearest cent
or to the nearest 1/100 of a share, as the case may be.
(h) If at any time as a result of an adjustment made pursuant to
Section 6(g), the holder of any Series A Convertible Preferred Stock thereafter
surrendered for conversion shall become entitled to receive securities, cash, or
assets other than Common Stock, the number or amount of such securities or
property so receivable upon conversion shall be subject to adjustment from time
to time in a manner and on terms as nearly
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equivalent as practicable to the provisions with respect to the Common Stock
contained in Section 6(g) above.
(i) Except as otherwise provided above in this Section 6, no
adjustment in the Conversion Rate shall be made in respect of any conversion for
share distributions or dividends theretofore declared and paid or payable on the
Common Stock.
(j) Whenever the Conversion Rate is adjusted, the Corporation will
give notice by mail to the holders of record of Series A Convertible Preferred
Stock, which notice shall be made within 45 days after the effective date of
such adjustment and shall state the adjustment and the Conversion Rate.
Notwithstanding the foregoing notice provisions, failure by the Corporation to
give such notice or a defect in such notice shall not affect the binding nature
of such corporate action of the Corporation.
(k) Whenever the Corporation shall propose to take any of the actions
specified in Section 6(d) or in Section 6(g) which would result in any
adjustment in the Conversion Rate under this Section 6, the Corporation shall
use its best efforts to cause a notice to be mailed at least 10 days prior to
the date on which the books of the Corporation will close or on which a record
will be taken for such action, to the holders of record of the outstanding
Series A Convertible Preferred Stock on the date of such notice. Such notice
shall specify the action proposed to be taken by the Corporation and the date as
of which holders of record of the Common Stock shall participate in any such
actions or be entitled to exchange their Common Stock for securities or other
property, as the case may be. Failure by the Corporation to mail the notice or
any defect in such notice shall not affect the validity of the transaction.
Section 7. Voting Rights.
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(a) The holders of Series A Convertible Preferred Stock will not have
any voting rights except as set forth in this Section 7 or as otherwise from
time to time required by law.
(b) The affirmative vote or consent of the holders of at least a
majority of the outstanding shares of the Series A Convertible Preferred Stock,
voting separately as a class, will be required for any amendment, alteration or
repeal of this Certificate of Designation, if such amendment, alteration or
repeal materially and adversely affects the powers, preferences or special
rights of the Series A Convertible Preferred Stock. The creation, authorization
or issuance of any series or shares of any Senior Stock, Parity Stock or Junior
Stock or the increase or decrease in the amount of authorized capital stock of
any class, including preferred stock, shall not require the consent of holders
of the Series A Convertible Preferred Stock and shall not be deemed to affect
adversely the rights, preferences, privileges or voting rights of shares of
Series A Convertible Preferred Stock. Such right of the holders of Series A
Convertible Preferred Stock to vote as hereinabove provided may be exercised at
any annual meeting or at any special meeting called for such purpose as
hereinafter provided or at any adjournment thereof.
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(c) In any case in which the holders of Series A Convertible
Preferred Stock shall be entitled to vote pursuant to this Section 7 or pursuant
to Delaware law, each holder of Series A Convertible Preferred Stock entitled to
vote with respect to such matters shall be entitled to one vote for each share
of Series A Convertible Preferred Stock held.
Section 8. Residual Rights. All rights accruing to the outstanding
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shares of the Corporation not expressly provided for to the contrary herein
shall be vested in the Common Stock.
Section 9. Preemptive Rights. The holders of the Series A Preferred
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Stock are not entitled to any preemptive rights.
Section 10. Outstanding Shares. All shares of Series A Convertible
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Preferred Stock shall be deemed outstanding except: (i) from the date of
surrender of certificates representing shares of Series A Convertible Preferred
Stock for conversion into Common Stock, all shares of Series A Convertible
Preferred Stock converted into Common Stock; and (ii) from the date of
registration of transfer, all shares of Series A Convertible Preferred Stock
held of record by the Corporation or any subsidiary of the Corporation.
IN WITNESS WHEREOF, TurboChef Technologies, Inc. has caused this
certificate to be signed by Marc Jacobson, its Chief Financial Officer this 11th
day of August 2000.
TURBOCHEF TECHNOLOGIES,
INC.
By /s/ Marc Jacobson
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Marc Jacobson
Chief Financial Officer
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