aero-pre14a12162008.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
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Filed
by the Registrant x
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Filed
by a Party other than the Registrant o
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Check
the appropriate box:
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x
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Preliminary
Proxy Statement
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Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
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Definitive
Proxy Statement
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Definitive
Additional Materials
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o
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Soliciting
Material Pursuant to §240.14a-12
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AeroGrow
International, Inc.
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(Name
of Registrant as Specified In Its Charter)
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______________________________________________________________
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(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
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Payment
of Filing Fee (Check the appropriate box):
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x
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No
fee required.
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Fee
computed on table below per Exchange Act
Rules 14a-6(i)(1) and 0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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________________________________________________________________ |
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(2)
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Aggregate
number of securities to which transaction applies:
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________________________________________________________________ |
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
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________________________________________________________________ |
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(4)
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Proposed
maximum aggregate value of transaction:
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________________________________________________________________ |
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(5)
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Total
fee paid:
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________________________________________________________________ |
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o
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Fee
paid previously with preliminary materials.
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o
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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(1)
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Amount
Previously Paid:
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________________________________________________________________ |
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(2)
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Form,
Schedule or Registration Statement No.:
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________________________________________________________________ |
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(3)
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Filing
Party:
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________________________________________________________________ |
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(4)
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Date
Filed:
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________________________________________________________________ |
(This
page is deliberately left blank)
AeroGrow
International, Inc.
6075
Longbow Drive, Suite 200, Boulder, Colorado 80301
303-444-7755
TO
BE HELD FEBRUARY 5, 2009
To the
Stockholders of
AeroGrow
International, Inc.:
We
cordially invite you to attend a Special Meeting of Stockholders of AeroGrow
International, Inc., a Nevada corporation, at our headquarters located at 6075
Longbow Drive, Suite 200, Boulder, Colorado 80301, on Thursday, February 5,
2009, at 10:00 a.m., Mountain time, for the following purposes:
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1.
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To
approve an amendment to our Articles of Incorporation giving our Board of
Directors the authority to designate the rights and preferences of
AeroGrow’s preferred stock.
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2.
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To
transact such other business as may properly come before the Special
Meeting or any postponement or adjournment
thereof.
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Stockholders
of record at the close of business on December 31, 2008, are entitled to notice
of, and to vote at, the Special Meeting and any postponement or adjournment
thereof.
It
is important that your shares be represented at the Special Meeting, regardless
of the number of shares you may hold. Even if you plan to attend the
Special Meeting in person, please sign, date, and return your
proxy. If you attend the Special Meeting, you may revoke your proxy
and vote in person.
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By
order of the Board of Directors,
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________________________________________________________________
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Jack
J. Walker
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Chairman
of the Board
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Boulder,
Colorado
[______]
[__], 2009
(This
page is deliberately left blank)
AEROGROW
INTERNATIONAL, INC.
6075
Longbow Drive, Suite 200,
Boulder,
Colorado 80301
PROXY
STATEMENT
_______________
GENERAL
AeroGrow
International, Inc., a Nevada corporation (the “Company,”
“AeroGrow,”
“we,”
“our,” or
“us”), is
furnishing this proxy statement and the accompanying proxy card on or about
[_______] [__], 2009, in connection with the solicitation of proxies by the
Board of Directors of the Company (the “Board”)
for use at the Special Meeting of Stockholders (the “Special
Meeting”) to be held on Thursday, February 5, 2009, at 10:00 a.m.,
Mountain time, at the Company’s headquarters located at 6075 Longbow Drive,
Suite 200, Boulder, Colorado 80301, and at any adjournment or postponement
thereof. Directions to the Special Meeting are available on our
website at www.aerogrow.com/proxy.
The Board
has fixed the close of business on December 31, 2008, as the record date for
determining the stockholders entitled to notice of, and to vote at, the Special
Meeting. On the record date, AeroGrow had [__________] shares of common
stock, par value $.0001 per share, outstanding and entitled to
vote. Each share of common stock is entitled to one vote on the issue
being voted on at the Special Meeting.
QUESTIONS
AND ANSWERS ABOUT THE SPECIAL MEETING AND VOTING
Why
am I receiving this proxy statement and proxy card?
You are receiving a proxy statement and
proxy card from us because on December 31, 2008, you owned shares of AeroGrow’s
common stock. This proxy statement describes the matter that will be
presented for consideration by the stockholders at the Special
Meeting. It also gives you information about this matter to assist
you in making an informed decision.
When you sign the enclosed proxy card,
you appoint the proxy holder as your representative at the Special
Meeting. The proxy holder will vote your shares as you have
instructed in the proxy card, thereby ensuring that your shares will be voted
whether or not you attend the Special Meeting. Even if you plan to
attend the Special Meeting, you should complete, sign, and return your proxy
card in advance of the Special Meeting just in case your plans
change.
If you have signed and returned the
proxy card and an issue comes up for a vote at the Special Meeting that is not
identified on the form, the proxy holder will vote your shares, pursuant to your
proxy, in accordance with his or her judgment.
What
matters will be voted on at the Special Meeting?
You are being asked to vote on one
issue:
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To
approve an amendment to our Articles of Incorporation (the “Company Charter”)
giving our Board of Directors the authority to designate the rights and
preferences of AeroGrow’s preferred
stock.
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You may vote by mail, in
person at the Special Meeting, or by phone or internet if those instructions
appear on your proxy card. To vote by mail, complete and sign the
enclosed proxy card and mail it pursuant to the instructions on the proxy
card. If you mark your proxy card to indicate how you want your
shares voted, your shares will be voted as you instruct.
If you sign and return your proxy card,
but do not mark the form to provide voting instructions, the shares represented
by your proxy card will be voted “for” the proposal named in this proxy
statement and by the appointed proxies in accordance with his or her judgment on
any other matter brought before the Special Meeting.
If you want to vote in person, please
come to the Special Meeting. We will distribute written ballots to
anyone who wants to vote at the Special Meeting. Even if you plan to
attend the Special Meeting, you should complete, sign, and return your proxy
card in advance of the Special Meeting just in case your plans
change. Please note that if your shares are held in the name of your
broker (or in what is usually referred to as “street name”), you will need to
arrange to obtain a “legal proxy” from your broker in order to vote in person at
the Special Meeting.
If
I hold shares in the name of a broker or fiduciary, who votes my
shares?
If you received this proxy statement
from your broker or a trustee or other fiduciary who may hold your shares, your
broker or fiduciary should have given you instructions for directing how they
should vote your shares. It will then be the responsibility of such
person to vote your shares for you in the manner you direct. As
discussed above, if you want to vote in person at the Special Meeting, you will
need to arrange to obtain a “legal proxy” from your broker or fiduciary in order
to vote in person at the Special Meeting.
Under the
rules of various national and regional securities exchanges, brokers may
generally vote on routine matters, such as the election of directors, but cannot
vote on non-routine matters, such as an amendment to the Company Charter, which
is the purpose of this Special Meeting, or the adoption or amendment of a stock
option plan, unless they have received voting instructions from the person for
whom they are holding shares. If your broker does not receive
instructions from you on how to vote on the proposed amendment to the Company
Charter, your broker will return the proxy form to us, indicating that he or she
does not have the authority to vote on this matter. This is generally
referred to as a “broker non-vote” and will affect the outcome of the voting as
described below under, “How many votes are needed for approval of each
proposal?” We urge you to provide directions to
your broker as to how you want your shares voted on the proposed amendment to the Company
Charter. You should do
this by carefully following the instructions your broker gives you concerning
his or her procedures. This ensures that your shares will be voted at
the Special Meeting.
What
does it mean if I receive more than one proxy card?
It means that you have multiple
holdings reflected in our stock transfer records and/or in accounts with
stockbrokers. Please sign and return all proxy cards to ensure
that all of your shares are voted.
What
if I change my mind after I return my proxy?
If you hold your shares in your own
name, you may revoke your proxy and change your vote at any time before the
polls close at the Special Meeting. You may do this by:
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·
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signing
another proxy with a later date and returning that proxy
to:
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Corporate
Stock Transfer
Attn: Rhonda
Singleton, Proxy Dept.
3200
Cherry Creek South Dr., #430
Denver,
Colorado 80209;
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·
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voting
in person at the Special Meeting (attendance at the Special Meeting will
not in and of itself constitute the revocation of a
proxy).
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If you hold your shares in the name of
a broker or fiduciary and desire to revoke your proxy, you will need to contact
your broker.
How
many votes do we need to hold the Special Meeting?
A majority of the shares that are
outstanding and entitled to vote as of the record date must be present in person
or by proxy at the Special Meeting in order to hold the Special Meeting and
conduct business.
Shares
are counted as present at the Special Meeting if the stockholder
either:
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is
present in person at the Special Meeting;
or
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has properly
submitted a signed proxy card or other
proxy.
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On December 31, 2008, the record date,
there were [__________] shares of common stock issued and outstanding.
Therefore, at least [________] shares need to be present at the Special
Meeting.
What
options do I have in voting on each of the proposals?
You may vote “for,” “against,” or
“abstain” on the proposed amendment to the Company Charter, and on any other
proposal that is properly brought before the Special
Meeting. Abstentions will be considered in determining the presence
of a quorum and will affect the vote required for the proposed amendment to the
Company Charter.
How
does the Board recommend that I vote on the proposed amendment to the Company
Charter?
The Board recommends that you vote
FOR the proposed
amendment to the Company Charter.
How
many votes may I cast?
You are entitled to cast one vote for
each share of stock you owned on the record date. The proxy card
included with this proxy statement indicates the number of shares owned by an
account attributable to you.
How
many votes are needed for each proposal?
A majority of votes cast is required to
approve the proposed amendment to the Company Charter.
Where
do I find the voting results of the Special Meeting?
We will announce voting results at the
Special Meeting. The voting results will also be disclosed in our
Annual Report on Form 10-K for the year ended March 31, 2009.
Who
bears the cost of soliciting proxies?
We will bear the cost of soliciting
proxies. In addition to solicitations by mail, officers, directors,
or employees of AeroGrow or its subsidiaries may solicit proxies in person or by
telephone. These persons will not receive any special or additional
compensation for soliciting proxies. We may reimburse brokerage
houses and other custodians, nominees, and fiduciaries for their reasonable
out-of-pocket expenses for forwarding proxy and solicitation materials to
stockholders.
____________________________________
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SPECIAL MEETING TO
BE HELD ON FEBRUARY 5, 2009:
The
proxy statement is available at www.aerogrow.com/proxy.
The
following table sets forth certain information as of December 15, 2008,
regarding our common stock owned of record or known by the Company to be owned
beneficially by (i) each director, (ii) each executive officer named
in the Summary Compensation Table in the proxy statement, dated August 26, 2008,
relating to the Company’s 2008 Annual Meeting of Stockholders (the “Named Executive
Officers”), (iii) all those known by the Company to beneficially own
more than 5% of the Company’s common stock, and (iv) all directors and
Named Executive Officers as a group.
In general, a person is deemed to be a
“beneficial owner” of a security if that person has or shares the power to vote
or direct the voting of such security, or the power to dispose or to direct the
disposition of such security. A person is also deemed to be a
beneficial owner of any securities of which the person has the right to acquire
beneficial ownership within 60 days. To the best of our knowledge,
subject to community and marital property laws, all persons named have sole
voting and investment power with respect to such shares except as otherwise
noted. The table assumes a total of 13,345,877 shares of common stock
outstanding.
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Name
of Beneficial Owner
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Number
of Shares
Beneficially Owned(1)
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Number
of Shares Acquirable Within 60 Days(1)
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Percent
Beneficial Ownership
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5%
Stockholders
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Lazarus
Investment Partners LLLP (2)
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1,263,041 |
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331,684 |
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11.66 |
% |
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Enable
Capital Management LLC and affiliated holders (3)
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465,545 |
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840,000 |
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9.20 |
% |
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W.
Michael Bissonnette, Former Director (4)
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956,297 |
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0 |
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7.17 |
% |
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Directors
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Jack
J. Walker (5)
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214,286 |
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6,000 |
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1.65 |
% |
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Jervis
B. Perkins
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125,501 |
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0 |
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* |
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Peter
A Michel
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10,473 |
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4,722 |
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* |
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Suresh
Kumar
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9,585 |
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3,834 |
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* |
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Michael
D. Dingman, Jr.
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8,750 |
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3,500 |
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* |
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Linda
Graebner
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8,334 |
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3,333 |
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* |
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Named
Executive Officers
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Randal
L. Seffren
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215,320 |
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0 |
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1.61 |
% |
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Jeffrey
M. Brainard
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143,331 |
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0 |
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1.07 |
% |
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All
AeroGrow Named Executive Officers and Directors as a Group (9
Persons)
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1,691,877 |
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21,389 |
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12.82 |
% |
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| * |
Less
than 1%. |
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(1)
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Beneficial
ownership is determined in accordance with the rules of the Securities and
Exchange Commission, which include holding voting and investment power
with respect to the securities. Shares of common stock subject to
options or warrants currently exercisable, or exercisable within 60 days,
are deemed outstanding for computing the percentage of the total number of
shares beneficially owned by the designated person, but are not deemed
outstanding for computing the percentage for any other
person.
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(2)
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In
communication with the Company on December 15, 2008, Mr. Borus of Lazarus
Investment Partners LLLP reported holdings of 1,263,041 shares of common
stock and 331,684 warrants to purchase common stock. Lazarus
Investment Partners LLLP’s address is 2401 East 2nd Avenue, #600, Denver,
CO 80206.
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(3)
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As
of December 31, 2007, based on information provided in Schedule 13G/As
filed February 20, 2008. According to these filings, Enable Capital
Management, LLC (“ECM”) is the beneficial owner of 465,545 shares of our
common stock and warrants to purchase up to 840,000 shares of our common
stock. ECM is located at One Ferry Building, Suite 255, San
Francisco, CA 94111. Mr. Mitchell S. Levine is the managing member
and majority owner of ECM. Mr. Levine’s address is One Ferry
Building, Suite 255, San Francisco, CA 94111. ECM acts as the general
partner and/or investment manager of Enable Growth Partners,
L.P. Enable Growth Partners L.P. is located at One Ferry Building,
Suite 255, San Francisco, CA 94111.
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(4)
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Based
on a Form 3 March 6, 2006, Mr. Bissonnette, a former director who resigned
from the Board of Directors effective July 23, 2008, holds 956,297 shares
of common stock. Mr. Bissonnette's beneficial ownership is
included in the calculation of All AeroGrow Named Executive Officers and
Directors as a Group. Mr.
Bisonnette’s address is c/o AeroGrow International, Inc., 6075 Longbow
Dr., Suite 200, Boulder, CO 80301.
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(5)
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Includes
76,122 shares held of record by March Trade & Finance, Inc. of which
Mr. Walker is a controlling person.
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AMENDMENT
TO ARTICLES OF INCORPORATION
The Board has unanimously approved, and
recommends that the Company’s stockholders approve, the proposed amendment (the
“Amendment”)
to the Company Charter attached as Exhibit A to
this proxy statement.
In
recent years, financing for smaller companies has often required the issuance of
a senior class of stock with certain protections and preferences with respect to
liquidation, dividends, conversion privileges, anti-dilution provisions, and
other types of preferences and rights that are not found in common
stock. With the recent downturn in the capital markets, and an
anticipated need for capital in the coming months by the Company, the Board
believes that having all available avenues for fundraising by the Company is of
prime value.
Under
Nevada Corporate law, a corporation’s articles of incorporation must either
prescribe the rights and preferences of each class or series of stock or vest
authority in the board of directors to prescribe the rights and preferences of
each class or series of stock. Because the Company Charter does not
prescribe the rights and preferences, this Amendment is needed to permit the
Board to determine the rights and preferences of the 20 million shares of
preferred stock currently authorized under the Company Charter without seeking
further amendments to the Company Charter. Providing the Board with
the ability to timely issue preferred stock will allow the Company to take
advantage of market conditions and pursue favorable opportunities without
incurring the delay, expense, and market-risk associated with calling a special
meeting of stockholders to approve future issuances of preferred stock or the
rights and preferences of any such issuances. The Amendment vests
authority in the Board to prescribe the classes, series, and the number of each
class or series, and the voting powers, designations, preferences, limitations,
restrictions, and relative rights of each class or series of the 20 million
shares of preferred stock currently authorized under the Company
Charter.
Although the Company does not have a
present intent to issue any preferred stock, the Company has determined that
raising additional capital to support its operations may be warranted, and the
Company has begun to assess opportunities to access additional capital and to
review potential structuring alternatives. The terms, conditions, and
timing of any such transactions have not been determined, and the Company may
ultimately choose to accelerate, delay, or not pursue a transaction, depending
on market conditions.
The availability of preferred stock,
and the ability to tailor the characters of the preferred stock, will provide
the Company with flexibility in capital-raising transactions, structuring
acquisitions, joint ventures, and strategic alliances. The Amendment
would empower the Board to determine among other things: (i) the
designation of each class or series of preferred stock and the number of shares
in the class or series; (ii) the dividend rights, if any, of the class or
series; (iii) the voting rights, if any (in addition to any prescribed by
law), of the holders of shares of the class or series; (iv) the rights, if
any, to convert or exchange the shares into or for other securities;
(v) the conditions or restrictions, if any, on specific actions of the
Company affecting the rights of the shares; (vi) the redemption provision,
if any, of the shares; (vii) the preference, if any, to which any class or
series would be entitled in the event of the liquidation or distribution of the
Company’s assets; and (viii) the provision of a sinking fund, if any,
provided for the redemption of the preferred stock. The Board
believes that being able to promptly and efficiently react to these
opportunities puts the Board and management in a position to take actions that
serve the best interest of the Company and its stockholders.
Preferred stock can also be used to
discourage or impede an attempt to obtain control of the Company by merger,
tender offer, proxy context, or other means, and could be used to impede the
removal of incumbent management. At this time, the Company’s
management is not aware of any attempt to obtain control of the
Company.
Without the ability to timely issue
preferred stock, the Company may be limited in its ability in the future to
raise and attract additional capital to sustain growth and execute the Company’s
business plan. If the Amendment is approved, the Board will have the
authority to fix, by resolution of the Board, the voting powers, designations,
preferences, limitations, restrictions, and relative rights of any class or
series of the 20 million shares of preferred stock currently authorized by the
Company Charter, without further stockholder approval.
If approved, the Amendment will become
effective upon the filing of a Certificate of Amendment with the Secretary of
State of Nevada.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” AN AMENDMENT TO THE ARTICLES OF
INCORPORATION TO VEST AUTHORITY IN THE BOARD OF DIRECTORS TO PRESCRIBE THE
RIGHTS AND PREFERENCES OF THE 20 MILLION SHARES OF PREFERRED STOCK CURRENTLY
AUTHORIZED BY THE COMPANY CHARTER.
OTHER
MATTERS
The Board
of Directors does not know of any other matters to be brought before the Special
Meeting. If any other matters not mentioned in this proxy statement
are properly brought before the Special Meeting, the individuals named in the
enclosed proxy intend to use their discretionary voting authority under the
proxy to vote the proxy in accordance with their best judgment on those
matters.
SUBMISSION
OF STOCKHOLDER PROPOSALS FOR 2009 ANNUAL MEETING
The
Company must receive any stockholder proposal for the Company’s 2009 Annual
Meeting of Stockholders on or before April 29, 2009, for the proposal to be
included in the Company’s proxy statement and proxy card for that
meeting. The Company will not consider proposals received after that
date for inclusion in the proxy materials.
In
addition, if a stockholder intends to present a matter for a vote at the
Company’s 2009 Annual Meeting of Stockholders other than by submitting a
proposal for inclusion in the Company’s proxy statement for that meeting, the
stockholder must give timely notice in accordance with Securities and Exchange
Commission (the “SEC”)
rules and the Company’s Amended Bylaws. To be timely, a stockholder’s
notice must be received by the Company’s headquarters at 6075 Longbow Drive,
Suite 200, Boulder, Colorado 80301, on or before July 3, 2009, which is not
later than the close of business on the 90th day prior to the anniversary of the
Company’s 2008 Annual Meeting of Stockholders. The notice must contain the
additional information required by the Company’s Amended Bylaws. If
the Company changes the date of the 2009 Annual Meeting of Stockholders by more
than 30 days from the date of the 2008 Annual Meeting of Stockholders, then the
deadline will be a reasonable time before the Company begins to send proxy
materials.
ANNUAL
REPORT ON FORM 10-K
If you request, we will provide you
with copies of our Annual Report on Form 10-K and Form 10-K/A for the fiscal
year ended March 31, 2008 (collectively, our “Annual
Report”). You should send your written request to AeroGrow
International, Inc., Attn: Lissie Stagg,
Corporate Secretary, 6075 Longbow Drive,
Suite 200, Boulder, Colorado 80301. The exhibits to the
Annual Report are available upon payment of charges that approximate our cost of
reproduction.
HOUSEHOLDING
OF PROXY MATERIALS
In an
effort to reduce printing costs and postage fees, we have adopted a practice
called “householding.” Under this practice, stockholders who have the same
address and last name will receive only one set of proxy-related materials
unless one or more of these people notifies us that he or she wishes to continue
to receive individual copies.
If you
share an address with another stockholder and receive only one set of
proxy-related materials and would like to request a separate copy for the
Special Meeting or for any future meetings, please: (1) call our office at
303-444-7755; (2) send an email message to proxy@aerogrow.com; or (3) mail your
request to AeroGrow International, Inc., 6075 Longbow Drive, Suite 200, Boulder,
Colorado 80301. Additional copies of the materials will be sent
within 15 days after receipt of your request. Similarly, you may also
contact us through any of these methods if you receive multiple copies of the
materials and would prefer to receive a single copy in the future.
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By
Order of the Board of Directors
__________________________________
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[________]
[__], 2009
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Jack
J. Walker
Chairman
of the Board
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page is deliberately left blank)
PROXY
AEROGROW
INTERNATIONAL, INC.
KNOW ALL
PERSONS BY THESE PRESENTS, THAT I, the undersigned stockholder of AeroGrow
International, Inc. (the “Company”),
having received notice of the Special Meeting of Stockholders, do hereby
nominate, constitute and appoint, each of Jack J. Walker and Lissie Stagg, my
true and lawful attorney and proxy, with full power of substitution, for me and
in my name, place, and stead to vote all of the shares of common stock, $.0001
par value of the Company standing in my name on its books on December 31, 2008,
at the Special Meeting of Stockholders of the Company, to be held at the
Company’s headquarters, located at 6075 Longbow Drive, Suite 200, Boulder,
Colorado, 80301, on Thursday, February 5, 2009 at 10:00 a.m., Mountain time, and
at any postponement or adjournment thereof, with all powers the undersigned
would possess if personally present, as follows:
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A.
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To
approve an amendment to the Articles of Incorporation of the Company
giving the Board of Directors of the Company the authority to designate
the rights and preferences of the Company’s preferred
stock.
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The
Board of Directors recommends a vote FOR an amendment to the Articles of
Incorporation of the Company giving the Board of Directors of the Company the
authority to designate the rights and preferences of the Company’s preferred
stock.
In their discretion, the proxies are
authorized to vote upon such other business as may properly come before the
Special Meeting.
This proxy will be voted as
directed. For any matters that come before the Special Meeting or any
postponement or adjournment thereof, this proxy will be voted in accordance with
the Board of Directors’ recommendations.
This proxy is solicited on behalf of
the Board of Directors and may be revoked prior to its exercise.
Your vote is important. Any
previously submitted proxies will not be used at the Special
Meeting. Accordingly, even if you plan to attend the Special Meeting,
please mark, sign, date, and fold this proxy, and return to Corporate Stock
Transfer, Attn: Rhonda Singleton, Proxy Dept., 3200 Cherry Creek
South Dr., #430 Denver, Colorado 80209.
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______________________
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Date
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______________________
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Date
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Please
sign your name or names exactly as they appear on the stock certificate.
Each joint tenant must sign. When signing as attorney, administrator,
guardian, executor or trustee or as an officer of a corporation, please
give full title. If more than one trustee, all should
sign.
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THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
Exhibit
A
Proposed
Amendment to the Articles of Incorporation
Article
FOURTH shall be amended in its entirety as follows (changes to Article indicated
by an underline):
FOURTH.
(A) Common
Stock. The total authorized number of
shares of common stock that may be issued by the Corporation is 75,000,000 with
a par value of $.001 per share. Said shares may be issued by the corporation
from time to time for such consideration as may be fixed by the Board of
Directors.
(B) Preferred
Stock. The total authorized number of
shares of preferred stock that may be issued by the Corporation is 20,000,000
with a par value of $.001 per share. The Board of Directors shall
have the authority to authorize the issuance of the preferred stock from time to
time in one or more classes or series, and to state in the resolution or
resolutions from time to time adopted providing for the issuance thereof the
following:
(i) Whether or not the class or
series shall have voting rights, full or limited, the nature and qualifications,
limitations and restrictions on those rights, or whether the class or series
will be without voting rights;
(ii) The number of shares to
constitute the class or series and the designation
thereof;
(iii) The preferences and
relative, participating, optional or other special rights, if any, and the
qualifications, limitations, or restrictions thereof, if any, with respect to
any class or series;
(iv) Whether or not the shares of
any class or series shall be redeemable and if redeemable the redemption price
or prices, and the time or times at which, and the terms and conditions upon
which, such shares shall be redeemable and the manner of
redemption;
(v) Whether or not the shares of
a class or series shall be subject to the operation of retirement or sinking
funds to be applied to the purchase or redemption of such shares for retirement,
and if such retirement or sinking funds be established, the amount and the terms
and provisions thereof;
(vi) The dividend rate, whether
dividends are payable in cash, stock of the Corporation, or other property, the
conditions upon which and the times when such dividends are payable, the
preference to or the relation to the payment of dividends payable on any other
class or classes or series of stock, whether or not such dividend shall be
cumulative or noncumulative, and if cumulative, the date or dates from which
such dividends shall accumulate;
(vii) The preferences, if any, and
the amounts thereof which the holders of any class or series thereof are
entitled to receive upon the voluntary or involuntary dissolution of, or upon
any distribution of assets of, the Corporation;
(viii) Whether or not the shares of
any class or series are convertible into, or exchangeable for, the shares of any
other class or classes or of any other series of the same or any other class or
classes of stock of the Corporation and the conversion price or prices or ratio
or ratios or the rate or rates at which such exchange may be made, with such
adjustments, if any, as shall be stated and expressed or provided for in such
resolution or resolutions; and
(ix) Such other rights and
provisions with respect to any class or series as may to the Board of Directors
seem advisable.
The shares of each class or
series of the preferred stock may vary from the shares of any other class or
series thereof in any respect. The Board of Directors may increase
the number of shares of the preferred stock designated for any existing class or
series by a resolution adding to such class or series authorized and unissued
shares of the preferred stock not designated for any other class or
series. The Board of Directors may decrease the number of shares of
the preferred stock designated for any existing class or series of the preferred
stock and the shares so subtracted shall become authorized, unissued and
undesignated shares of the preferred stock.
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page is deliberately left blank)