AMENDED
AND RESTATED ARTICLES OF INCORPORATION
OF
LIVEDEAL,
INC.
1.
Name
.
The name of the corporation is LiveDeal, Inc. (the “Corporation”).
2.
Capital
Stock
. The Corporation is authorized to issue two classes of stock.
One class of stock shall be Common Stock, par value, $0.001. The second class
of
stock shall be Preferred Stock, par value $0.001. This Corporation is authorized
to issue 100,000,000 shares of Common Stock and 5,000,000 shares of Preferred
Stock.
2.1
Common
Stock
. Each share of Common Stock issued and outstanding shall be
entitled to one vote on all matters. Shares of such Common Stock may be issued
for such consideration and for such corporate purposes as the Board of Directors
may from time to time determine. Fully paid shares of Common Stock of this
Corporation shall not be liable to any further call or assessment. Dividends
may
be declared and paid on the Common Stock only out of funds legally available
therefore. Upon the sale of substantially all of the stock or assets of the
Corporation in a non-public transaction or dissolution, liquidation, or winding
up of the Corporation, whether voluntary or involuntary, after all liquidation
preferences payable to any series of Preferred Stock entitled thereto have
been
satisfied, the remaining net assets of the Corporation shall be distributed
to
the holders of Common Stock and any similarly situated stockholders who are
not
entitled to any liquidation preference (or, if there be an insufficient amount
to pay all such stockholders, then ratably among such holders).
2.2
Preferred
Stock
.
(a)
The
Preferred Stock not so specifically designated may be designated in the future
by action of the Board of Directors of the Corporation and otherwise in
accordance with the applicable provisions of the NRS. The designated series
of
Preferred Stock shall have such powers, designations, preferences and relative,
participating or optional or other special rights and qualifications,
limitations or restrictions thereof as shall be expressed in the resolution
or
resolutions providing for the issue of such stock adopted by the Corporation’s
Board of Directors and may be made dependent upon facts ascertainable outside
such resolution or resolutions of the Board of Directors, provided that the
manner in which such facts shall operate upon such powers, designations,
preferences, rights and qualifications, limitations or restrictions of such
class or series of stock is clearly and expressly set forth in the resolution
or
resolutions providing for the issuance of such stock by the Board of
Directors.
(b)
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 of series of the Preferred
Stock and the shares so subtracted shall become authorized, unissued and
undesignated shares of the Preferred Stock.
3.
Designation
and Amount of Series E Convertible Preferred Stock
. In accordance with
the foregoing
Section 2.2
, the Corporation has authorized a series of
Preferred Stock, which shall be designated as Series E Convertible Preferred
Stock (the “Series E Preferred Convertible Stock”). The number of shares
constituting the Series E Preferred Stock shall be 200,000, par value $0.001.
The Series E Preferred Stock has the voting powers, preferences, relative,
participating, limitations, qualifications, optional and other special rights
and the qualifications, limitations and restrictions thereof that are set forth
below.
3.1
Dividends
.
(a)
The
holders of outstanding shares of Series E Convertible Preferred Stock shall
be
equally entitled to receive preferential dividends in cash out of any funds
of
the Corporation legally available at the time for declaration of dividends,
at
the dividend rates applicable to each such series, as set forth herein, before
any dividend or other distribution will be paid or declared and set apart for
payment on any shares of any Common Stock, or other class of stock presently
authorized or to be authorized (the Common Stock, and such other stock being
hereinafter collectively the “Junior Stock”) as follows: Series E Convertible
Preferred Stock shall receive dividends at the rate of 5% per annum on the
liquidation preference per shares, payable each March 31, June 30, September
30
and December 31, commencing with the first such date following the issuance
of
such stock. Dividends shall accumulate from the date of issuance, until the
first payment date, at which time all accumulated dividends and dividends from
the date of issuance shall be paid if funds are legally available at such time.
If funds are not legally available at such time, dividends shall continue to
accumulate until they can be paid from legally available funds.
(b)
The
dividends on the Series E Convertible Preferred Stock at the rate provided
above
shall be cumulative whether or not earned so that, if at any time full
cumulative dividends at the rate aforesaid on all shares of the Series E
Convertible Preferred Stock then outstanding from the date from and after which
dividends thereon are cumulative to the end of the quarterly dividend period
next preceding such time shall not have been paid or declared and set apart
for
payment, or if the full dividend on all such outstanding Series E Convertible
Preferred Stock for the then current dividend period shall not have been paid
or
declared and set apart for payment (but without interest thereon) before any
sum
shall be set apart for or applied by the Corporation or a subsidiary of the
Corporation to the purchase, redemption or other acquisition of any shares
of
any other class of stock ranking on a parity with the Series E Convertible
Preferred Stock (“Parity Stock”) and before any dividend or other distribution
shall be paid or declared and set apart for payment on any Junior Stock and
before any sum shall be set aside for or applied to the purchase, redemption
or
other acquisition of Junior Stock.
(c)
Dividends
on all shares of the Series E Convertible Preferred Stock shall begin to accrue
and be cumulative from and after the date of issuance thereof. A dividend period
shall be deemed to commence on the day following a quarterly dividend payment
date herein specified and to end on the next succeeding quarterly dividend
payment date herein specified.
3.2
Liquidation
Preference
. Upon the sale of substantially all of the stock or
assets of the Corporation in a non-public transaction or dissolution,
liquidation, or winding up of the Corporation, whether voluntary or involuntary,
the holders of the Series E Convertible Preferred Stock shall be entitled to
receive out of the assets of the Corporation, before any distribution or payment
is made upon the Common Stock or any other series or Preferred Stock, an amount
in cash equal to $.30 per share, plus any accrued but unpaid dividends (or,
if
there be an insufficient amount to pay all Series E Convertible Preferred
Stockholders, then ratably among such holders).
3.3
Voting
Rights
. The holders of shares of Series E Convertible Preferred
Stock shall have no voting rights, except as required by law.
3.4
Conversion
of Series E Convertible Preferred Stock
.
(a)
Holder’s
Right to Convert.
(i)
Conversion.
The record Holder of the Series E Convertible Preferred Stock shall be
entitled, after two years from the initial issuance of the Series E Convertible
Preferred Stock and from time to time thereafter, at the office of the
Corporation or any transfer agent for the Series E Convertible Preferred Stock,
to convert all or portions of the Series E Convertible Preferred Stock held
by
such Holder, on a one for one basis into shares of the Common Stock, together
with payment by the holder of $.045 per converted share.
(ii)
Mechanics
of Conversion
.
(1)
In
order
to convert Series E Convertible Preferred Stock into full shares of Common
Stock, the holder shall (i) transmit a facsimile copy of the fully executed
notice of conversion in the form provided by the Corporation (“Notice of
Conversion”) to the Corporation, which notice shall specify the number of shares
of Series E Convertible Preferred Stock to be converted, prior to midnight,
New
York City time (the “Conversion Notice Deadline”), on the date of conversion
specified on the Notice of Conversion, and (ii) promptly surrender the original
certificate or certificates therefor, duly endorsed, and deliver the original
Notice of Conversion by either overnight courier or 2-day courier, to the office
of the Corporation or of any transfer agent for the Series E Convertible
Preferred Stock, together with payment by certified or bank check for $.045
per
converted share; provided, however, that the Corporation shall not be obligated
to issue certificates evidencing such Series E Convertible Preferred Stock
unless either the certificates evidencing such Series E. Convertible Preferred
Stock are delivered to the Corporation or its transfer agent as provided above
or the Holder notifies the Corporation or its transfer agent that such
certificates have been lost, stolen or destroyed. Upon receipt by the
Corporation of evidence of the loss, theft, destruction or mutilation of the
certificate or certificates (“Stock Certificates”) representing shares of Series
E Convertible Preferred Stock and (in the case of loss, theft or destruction)
of
indemnity or security reasonably satisfactory to the Corporation, and upon
surrender and cancellation of the Stock Certificate(s), if mutilated, the
Corporation shall execute and deliver new Stock Certificate(s) of like tenor
and
date. No fractional shares of Common Stock shall be issued upon conversion
of
the Series E Convertible Preferred Stock. In lieu of any fractional share to
which the Holder would otherwise be entitled, the Corporation shall pay cash
to
such Holder in an amount equal to such fraction multiplied by the value of
the
Common Stock as determined in good faith by the Corporation’s Board of
Directors. In the case of a dispute as to the calculation of the Conversion
Price, the Corporation’s calculation shall be deemed conclusive absent manifest
error.
(2)
The
Corporation shall issue and deliver at the address of the Holder on the books
of
the Corporation (i) a certificate or certificates for the number of shares
of
Common Stock equal to the Conversion Number for the shares of Series E
Convertible Preferred Stock being so converted and (ii) a certificate
representing the balance of the shares of Series E Convertible Preferred Stock
not so converted, if any. The date on which conversion occurs (the “Date of
Conversion”) shall be deemed to be the date set forth in such Notice of
Conversion, provided that the copy of the Notice of Conversion is faxed to
the
Corporation before midnight, New York City time, on the Date of Conversion.
The
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on such date.
(b)
Adjustment
to Conversion
.
(i)
If,
prior
to the conversion of all Series E Convertible Preferred Stock, there shall
be
any merger, consolidation, exchange of shares, recapitalization, reorganization
or other similar event, as a result of which shares of Common Stock of the
Corporation shall be changed into the same or a different number of shares
of
the same or another class or classes of stock or securities of the Corporation
or another entity, then the holders of Series E Convertible Preferred Stock
shall thereafter have the right to purchase and receive upon conversion of
Series E Convertible Preferred Stock, upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore issuable upon conversion, such shares of stock and/or
securities as may be issued or payable with respect to or in exchange for the
number of shares of Common Stock immediately theretofore purchasable and
receivable upon the conversion of Series E Convertible Preferred Stock held
by
such holders had such merger, consolidation, exchange of shares,
recapitalization or reorganization not taken place, and in any such case,
appropriate provisions shall be made with respect to the rights and interests
of
the Holders of the Series E Convertible Preferred Stock to the end that the
provisions hereof (including, without limitation, provisions for adjustment
of
the number of shares issuable upon conversion of the Series E Convertible
Preferred Stock otherwise set forth in this Section (b)) shall thereafter be
applicable, as nearly as may be practicable, in relation to any shares of stock
or securities thereafter deliverable upon the exercise hereof. The Corporation
shall not effect any transaction described herein unless the resulting successor
or acquiring entity (if not the Corporation) assumes by written instrument
the
obligation to deliver to the holders of the Series E Convertible Preferred
Stock
such shares of stock and/or securities as, in accordance with the foregoing
provisions, the holders of the Series E Convertible Preferred Stock may be
entitled to purchase.
(ii)
If
any
adjustment under this section would create a fractional share of Common Stock
or
a right to acquire a fractional share of Common Stock, such fractional shares
shall be disregarded, and the number of shares of Common Stock issuable upon
conversion shall be the next higher number of shares.
4.
Perpetual
Existence
. The existence of the Corporation will be
perpetual.
5.
Board
of Directors
. The affairs of the Corporation shall be governed by a
Board of Directors. Subject to any rights to elect directors (“Preferred Stock
Directors”) granted to the holders of any series of Preferred Stock as set forth
in the Certificate of Designation for such series or class of Preferred Stock,
the number of persons to serve on the Board of Directors, and the number of
directors in each class of directors, shall be fixed as set forth in the Bylaws
and such number may be increased or decreased from time to time in such manner
as provided by the Bylaws, but the number of directors shall never be less
than
three. Directors of the Corporation need not be residents of the State of Nevada
and need not own shares of the Corporation's stock.
5.1
Terms
of Directors
. Beginning with the Corporation’s annual meeting of
stockholders to be held in 2007, the directors shall be elected for terms
lasting until the next annual meeting of stockholders following their election,
and until their successors are elected and qualified, subject to their earlier
death, resignation or removal from the board of directors.
5.2
Removal
of Directors
. Notwithstanding any other provision of these
Amended and Restated Articles of Incorporation or the Bylaws of the Corporation,
any director of the corporation may be removed at any time, but only for cause
and only by the affirmative vote of the holders of at least 66 2/3% of the
voting power of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called for that
purpose. Notwithstanding the foregoing, whenever the holders of any one or
more
series of preferred stock of the Corporation shall have the right, voting
separately as a class, to elect one or more directors of the Corporation, the
preceding provisions of this Article 5 shall not apply with respect to the
director or directors elected by such holders of preferred stock.
6.
Action
by Written Consent
. No action that is required or permitted to be
taken by the stockholders of the Corporation at any annual or special meeting
of
stockholders may be effected by written consent of stockholders in lieu of
a
meeting of stockholders, unless the action to be effected by written consent
of
stockholders and the taking of such action by such written consent have
expressly been approved in advance by the Board of Directors of the
Corporation.
7.
Cumulative
Voting
. There shall be no cumulative voting by stockholders of any
class or series in the election of directors of the Corporation.
8.
Distributions
to Stockholders
. Except as set forth in these Amended and Restated
Articles or the Certificate of Designations for any series or class of Preferred
Stock, the Board of Directors of the Corporation may, from time to time,
distribute to its stockholders a portion of its assets in cash or property,
whether or not the distribution, after giving it effect, would cause the
Corporation’s total assets to be less than the sum of the total liabilities plus
the amount that would be needed, if dissolution were to occur at the time of
distribution, to satisfy the preferential rights upon dissolution of
stockholders whose preferential rights are superior to those receiving the
distribution. The Board of Directors may base a determination that a
distribution is permitted hereunder on (i) financial statements prepared on
the
basis of accounting practices that are reasonable under the circumstances;
(ii)
a fair valuation, including, but not limited to, unrealized appreciation and
depreciation; or (iii) any other method that is reasonable in the
circumstances.
9.
Director
and Officer Liability
. A director and officer of the Corporation shall
not be personally liable to the Corporation or its stockholders for damages
for
breach of fiduciary duty as a director or officer, except for liability (i)
for
acts or omissions that involve intentional misconduct, fraud or a knowing
violation of law, or (ii) for authorizing any distribution in violation of
Section 78.300 of the NRS. If the NRS is amended after approval by the
stockholders of this Article to authorize corporate action further eliminating
the personal liability of directors or officers, then the liability of a
director or officer of the Corporation shall be eliminated or limited to the
fullest extent permitted by the NRS, as so amended. Any repeal or modification
of the foregoing paragraph by the stockholders of the Corporation shall not
adversely affect any right or protection of a director or officer of the
Corporation existing at the time of such repeal or modification. No amendment
to
the NRS that further limits the acts, omissions or transactions for which
elimination or limitation of liability is permitted shall affect the liability
of a director or officer for any act, omission or transaction which occurs
prior
to the effective date of such amendment.
10.
Indemnification
.
The Corporation shall, to the fullest extent permitted by Section 78.75 of
the
NRS, as the same may be amended, supplemented or replaced from time to time,
indemnify any and all persons whom it shall have power to indemnify under said
section from and against any and all of the expenses, liabilities or other
matters referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. Pursuant to said Section 78.751
of the NRS, the expenses of officers and directors incurred in defending a
civil
or criminal action, suit or proceeding must be paid by the Corporation as they
are incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the director
or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the
Corporation.
11.
Amendment
of Articles of Incorporation
. Subject to the provisions hereof, the
Corporation reserves the right to repeal, alter, amend or rescind any provision
contained in these Restated Articles in the manner now or hereafter prescribed
by law, and all rights conferred on stockholders herein are granted subject
to
this reservation. Notwithstanding the foregoing at any time and from time to
time, the provisions set forth in Article 5 (Classified Board) and Article
6
(Action by Written Consent) may be repealed, altered, amended or rescinded
in
any respect only if the same is approved by the affirmative vote of the holders
of not less than 66 2/3% of the voting power of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election
of
directors (for this purpose as a single class) cast at a meeting of the
stockholders called for that purpose (provided that notice of such proposed
adoption, repeal, alteration, amendment or rescission is included in the notice
of such meeting).
The
vote
by which the stockholders holding shares in the corporation entitling them
to
exercise at least a majority of the voting power, or such greater proportion
of
the voting power as may be required in the case of a vote by classes or series,
as may be required by the provisions of the articles of incorporation have
voted
in favor of the amendment is: more than a majority of the voting
power voted in favor of the amendment.
IN
WITNESS WHEREOF, the undersigned Chief Executive Officer has executed these
Amended and Restated Articles as of August 15, 2007.
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LIVEDEAL,
INC., a Nevada corporation
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/s/
Daniel L. Coury, Sr.
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Daniel
L. Coury, Sr.
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Chief
Executive Officer
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