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EXHIBIT 3.1
[CONTINUED FROM PAGE 1]
RESOLVED
, that the Board, pursuant to authority expressly vested in it by Article IV of the Articles, hereby authorizes the issuance of a series of Preferred Stock designated as Series A Convertible Preferred Stock, par value $0.001 per share, of the Corporation and hereby fixes the designation, number of shares, powers, preferences, rights, qualifications, limitations and restrictions thereof (in addition to any provisions set forth in the Articles which are applicable to the Preferred Stock of all classes and series) as follows:Series A Convertible Preferred STOCK
"Bylaws" means the Second Amended and Restated Bylaws of the Corporation.
"Business Day" means any day, other than a Saturday, Sunday or other day, on which banks in the City of New York are authorized or required by law or executive order to remain closed.
"Common Stock" means the Common Stock, par value $0.001 per share, of the Corporation, including the stock into which the Series A Preferred Stock is convertible, and any other series of common stock of the Corporation that is authorized by the Corporation in accordance with the Articles following the date hereof.
"Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Conversion Amount" means, as of any date, the number of shares of Common Stock determined by dividing the Stated Value of the number of shares of Series A Preferred Stock being so converted by the Conversion Price in effect on such date.
"Conversion Price" means $3.11, subject to adjustment as provided herein.
"Conversion Shares" means the shares of Common Stock into which the Series A Preferred Stock is convertible.
"Convertible Securities" means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for shares of Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
"Holder" or "Holders" means a holder or holders of Series A Preferred Stock.
"Junior Stock" shall mean all classes of the Common Stock and each other class of capital stock or series of preferred stock established after the Original Issue Date, by the Board, the terms of which do not expressly provide that such class or series ranks on parity with the Preferred Stock as to dividend rights or rights upon the liquidation, winding-up or dissolution of the Corporation.
"Options" means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
"Original Issue Date" means the filing date of this Certificate of Designation.
"Parity Stock" shall mean any class of capital stock or series of preferred stock established after the Original Issue Date by the Board, the terms of which expressly provide that such class or series will rank on parity with the Preferred Stock as to dividend rights or rights upon the liquidation, winding-up or dissolution of the Corporation.
"Person" means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.
"Principal Market" means The Nasdaq Stock Market LLC or other national or regional securities exchange on which the Common Stock is then listed.
"Proposals" means the proposals to be submitted to the stockholders of the Corporation at the Stockholders Meeting, for the purpose of seeking approval of the stockholders of the Corporation for the issuance of all shares of Common Stock issuable upon the full conversion of the Series A Preferred Stock issued pursuant to the Purchase Agreement and any change of control that may be deemed to occur as a result of such issuance and sale pursuant to the applicable rules of the Principal Market.
"Purchase Agreement" means that certain Securities Purchase Agreement, dated September 5, 2018, by and among the Corporation and each of the investors party thereto, as it may be amended, supplemented or otherwise modified from time to time.
"Recapitalization Event" means any transaction or series of related transactions (a) that constitutes the sale, conveyance, exchange, lease or other transfer of all or substantially all of the assets of the Corporation and its Subsidiaries, taken as a whole, (b) that constitutes any acquisition of the Corporation by means of a consolidation, stock exchange, stock sale, merger or other form of corporate reorganization of the Corporation with any other entity in which the Corporation's stockholders prior to the consolidation or merger own less than a majority of the voting securities or economic interests of the surviving entity (or, if the surviving entity is a wholly-owned subsidiary of another corporation following such merger or consolidation, the parent corporation of such surviving entity), (c) that constitutes the sale or disposition (including by way of merger, consolidation or otherwise) of one or more Subsidiaries of the Corporation if substantially all of the assets of the Corporation and its Subsidiaries, taken as a whole, are held by such Subsidiary or Subsidiaries, except where such sale or disposition is to a wholly-owned Subsidiary of the Corporation or (d) following which the Corporation's stockholders prior to such transaction or series of related transactions own less than a majority of the voting securities or economic interests of the Corporation or surviving entity (or, if the surviving entity is a wholly-owned Subsidiary of another corporation following such transaction or series of related transactions, the parent corporation of such surviving entity).
"Required Holders" means, as of any date, the holders of a majority of the Series A Preferred Stock outstanding as of such date.
"Stated Value" means $3,110 per share of Series A Preferred Stock.
"Stockholder Approval" means the approval by the stockholders of the Corporation of the Proposals at the Stockholders Meeting in accordance with applicable law, the Articles, the Bylaws and the applicable requirements of the Principal Market.
"Stockholders Meeting" means a meeting of the stockholders of the Corporation, for the purpose of voting on the Proposals, and to be held subject to and in accordance with the Articles, the Bylaws and Section 5.1 of the Purchase Agreement.
"Subsidiary" means, with respect to any Person (in this definition referred to as the "parent"), any corporation, partnership, association or other business entity (a) of which securities or other ownership interests representing more than 50.0% of the equity or more than 50.0% of the ordinary voting power or more than 50.0% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more Subsidiaries of the parent or by the parent and one or more Subsidiaries of the parent.
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Ticker: SANWEvents:
CIK: 1477246
Form Type: 8-K Corporate News
Accession Number: 0001136261-18-000278
Submitted to the SEC: Thu Oct 25 2018 7:17:40 PM EST
Accepted by the SEC: Fri Oct 26 2018
Period: Monday, October 22, 2018
Industry: Agricultural Production Crops