EXHIBIT 3.1
FORM OF
CERTIFICATE OF AMENDMENT
OF
SUNDOG TECHNOLOGIES, INC.
ESTABLISHING
SERIES A PREFERRED SHARES
1. The name of the Corporation is Sundog Technologies, Inc.
2. Article Four of the Corporation's Certificate of Incorporation is
amended to add a new Section D, which shall read in its entirety as follows:
D. Series A Preferred Stock.
(1) Designation and Amount. The shares of such series shall be
designated as "Series A Preferred Shares" and the number of shares
constituting such series shall be 500,000.
(2) Dividends and Distributions.
(i) The holders of shares of Series A Preferred Shares shall
be entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the purpose,
dividends in an amount per share equal to 100 (the "Adjustment
Number") multiplied by the aggregate per share amount of all
cash dividends, and the Adjustment Number multiplied by the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable
in Common Stock or a subdivision of the outstanding Common
Stock (by reclassification or otherwise), declared on the
Common Stock of the Corporation (the "Common Stock") after the
first issuance of any share or fraction of a share of Series A
Preferred Shares.
(ii) The Corporation shall declare a dividend or distribution
on the Series A Preferred Shares as provided in subparagraph
2(i) at the same time that it declares a dividend or
distribution on the Common Stock (other than a dividend
payable in Common Stock).
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(iii) Dividends shall not be cumulative. Unpaid dividends
shall not bear interest. Dividends paid on the Series A
Preferred Shares in an amount less than the total amount of
such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among
all such Series A Preferred Shares at the time outstanding.
(3) Voting Rights. The holders of Series A Preferred Shares shall
have the following voting rights:
(i) Each Series A Preferred Share shall entitle the holder
thereof to the number of votes equal to the Adjustment Number
then in effect on all matters submitted to a vote of the
shareholders of the Corporation.
(ii) Except as otherwise provided herein or by law, the
holders of Series A Preferred Shares and the holders of Common
Stock shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(4) Certain Restrictions.
(i) Whenever dividends or distributions payable on the Series
A Preferred Shares as provided in subparagraph 2 have not been
declared or paid for any fiscal year, until all such dividends
and distributions for such fiscal year on Series A Preferred
Shares outstanding shall have been declared and paid in full,
the Corporation shall not in such fiscal year:
(a) declare or pay dividends on or make any other
distributions on any shares of stock ranking junior
or on a parity (either as to dividends or upon
liquidation, dissolution or winding up) to the Series
A Preferred Shares except dividends paid ratably on
the Series A Preferred Shares and all such parity
stock on which dividends are payable in proportion to
the total amounts to which the holders of all such
shares are then entitled and, dividends or
distributions payable in Common Stock;
(b) purchase or otherwise acquire for consideration
any Series A Preferred Shares or any shares of stock
ranking on a parity with the Series A Preferred
Shares, except in accordance with a purchase offer
made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after
consideration of the respective dividend rates and
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other relative rights and preferences of the
respective series and classes, shall determine in
good faith will result in fair and equitable
treatment among the respective series or classes.
(ii) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation
could, under subparagraph 4(i), purchase or otherwise acquire
such shares at such time and in such manner.
(5) Restriction on Issuance of Shares; Reacquired Shares. The
Corporation shall not issue any Series A Preferred Shares except upon
exercise of rights (the "Rights") issued pursuant to the Rights
Agreement dated as of December 22, 2000, between the Corporation and
Atlas Stock Transfer Corporation, (the "Rights Agreement"), a copy of
which is on file with the secretary of the Corporation at its principal
executive office and shall be made available to shareholders of record
without charge upon written request. Any Series A Preferred Shares
purchased or otherwise acquired by the Corporation in any manner
whatsoever may be restored to the status of authorized but unissued
shares after the acquisition thereof. All such shares shall upon any
such restoration become authorized but unissued shares of Preferred
Shares and may be reissued as part of a new series of Preferred Shares
to be created by the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(6) Liquidation, Dissolution or Winding Up.
(i) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, no distribution shall be
made to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Shares unless, prior thereto,
the holders of shares of Series A Preferred Shares shall have
received the Adjustment Number multiplied by the per share
amount to be distributed to holders of Common Stock, plus an
amount equal to declared and unpaid dividends and
distributions thereon to the date of such payment (the "Series
A Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series
A Preferred Shares.
(ii) In the event that there are not sufficient assets
available to permit payment in full of the Series A
Liquidation Preference and the liquidation preferences of all
other series of Preferred Shares, if any, which rank senior to
or on a parity with the Series A Preferred Shares, then assets
shall be distributed first to holders of any series of
Preferred Shares ranking senior to the Series A Preferred
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Shares to the extent of their liquidation preferences and such
remaining assets shall be distributed ratably to the holders
of Series A Preferred Shares and such parity shares in
proportion to their respective liquidation preferences.
(7) Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in
which the Common Stock is exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the
Series A Preferred Shares shall at the same time be similarly exchanged
or changed in an amount per share equal to the Adjustment Number
multiplied by the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged.
(8) Anti-Dilution Adjustments to Adjustment Number. In the event the
Corporation shall at any time after January 31, 2001 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the Adjustment Number for all purposes
of this Article 2 shall be adjusted by multiplying the Adjustment
Number then in effect by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event. In the
event the Corporation shall at any time after the Rights Declaration
Date, fix a record date for the issuance of rights, options or warrants
to all holders of Common Stock entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe for or
purchase Common Stock or securities convertible into Common Stock at a
price per Common Stock (or having a conversion price per share, if a
security convertible into Common Stock) less than the then Current Per
Share Market Price of the Common Stock (as defined in Section 11(d) of
the Rights Agreement) on such record date, then in each such case the
Adjustment Number for all purposes of this Article 2 shall be adjusted
by multiplying the Adjustment Number then in effect by, a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of
Common Stock to be offered for subscription or purchase (or into which
the convertible securities so to be offered are initially convertible)
and the denominator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares of
Common Stock which the aggregate offering price of the total number of
shares of Common Stock so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would
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purchase at such Current Per Share Market Price (as defined in Section
11(d) of the Rights Agreement). In case such subscription price may be
paid in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined in
good faith by the Board of Directors. Common Stock owned by or held for
the account of the Corporation shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed. In the event that
such rights, options or warrants are not so issued, the Adjustment
Number shall be readjusted as if such record date had not been fixed;
and to the extent such rights, options or warrants are issued but not
exercised prior to their expiration, the Adjustment Number shall be
readjusted to be the number which would have resulted from the
adjustment provided for in this paragraph 8 if only the rights, options
or warrants that were exercised had been issued.
(9) No Redemption. The Series A Preferred Shares shall not be
redeemable at the option of the Corporation or any holder thereof.
Notwithstanding the foregoing sentence, the Corporation may acquire
Series A Preferred Shares in any other manner permitted by law.
(10) Amendment. Subsequent to the Distribution Date (as defined in
the Rights Agreement) these Certificate of Incorporation shall not be
further amended in any manner which would materially alter or change
the preferences, limitations and relative rights of the Series A
Preferred Shares so as to affect them adversely without the affirmative
vote of the holders of a majority of the outstanding Series A Preferred
shares, voting separately as a class.
(11) Fractional Shares. Series A Preferred Shares may be issued in
fractions of a share in integral multiples of one one-hundredth of a
share, which shall entitle the holder, in proportion to such holders
fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other
rights of holders of Series A Preferred Shares.
3. The amendment was adopted on December 20, 2000.
4. Shareholder action was not required to adopt the amendment. The
amendment was adopted by the board of directors without shareholder action.
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5. Person to contact about this filing:
Bryan Allen
Stoel Rives LLP
201 South Main Street, Suite 1100
Salt Lake City, Utah 84111
(801) 578-6908
Dated: December 20, 2000
Sundog Technologies, Inc.
By:
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Name:
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Title:
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