EXHIBIT
3.8
RESTATED
CERTIFICATE OF INCORPORATION
OF
PROGREEN
PROPERTIES, INC.
1.
The name
of the corporation is ProGreen Properties, Inc. (the
"Company"
or “corporation”).
2.
The
address of its registered office in the State of Delaware, County of New
Castle,
is 3411
Silverside Road, Rodney Building #104, Wilmington, Delaware 19810. The name of
its registered agent at such address is Corporate Creations Network,
Inc.
3.
The nature of
the business or purposes to be conducted or promoted is to engage in any lawful
act or activity for which corporations may be organized under the Delaware
General Corporation Law.
4.
The total
number of shares of stock which the corporation shall have authority to issue is
Two Hundred Sixty Million (260,000,000), of which Two Hundred Fifty Million
(250,000,000) are Common Stock, having a par value each of One-Hundredth of One
Cent ($.0001) per share, and Ten Million (10,000,000) are Preferred Stock,
having a par value each of One-Hundredth of One Cent ($.0001) per
share.
Authority
is hereby expressly vested in the Board of Directors of the corporation, subject
to the provisions of this Fourth Article and to the limitations
prescribed by law, to authorize the issue from time to time of one or
more series of Preferred Stock and with respect to each such series to fix by
resolution or resolutions adopted by the affirmative vote of a majority of the
whole Board of Directors providing for the issue of such series, the voting
powers, full or limited, if any, of the shares of such series and the
designations, preferences and relative, participating, optional or other special
rights and the qualifications, limitations or restrictions thereof. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, the determination or fixing of the
following:
(a) The
number of shares constituting the series and the designation of such
series;
(b) The
dividend rate on the shares of such series, the conditions and dates upon
which such dividends shall be payable,
the relation which such dividends shall bear to the dividends payable
on any other class or classes or series of the corporation’s capital stock, and
whether such dividends shall be cumulative or non-cumulative;
(c) Whether
the shares of such series shall be subject to redemption by the corporation at
the option of either the corporation or the holder or both or upon the happening
of a specified event, and, if made subject to any such redemption, the times or
events, prices and other terms and conditions of such redemption;
(d) The
terms and amount of any sinking fund provided for the purchase or redemption of
the shares of such series;
(e) Whether
of not the shares of such series shall be convertible into, or exchangeable for,
at the option of either the holder or the corporation or upon the happening of a
specified event, shares of any other class or classes or any other series of the
same or any other class or classes of the corporation’s capital stock, and, if
provision be made for conversion or exchange, the times or events, prices,
rates, adjustments, and other terms and conditions of such conversions or
exchanges;
(f) The
restrictions, if any, on the issue or reissue of any additional Preferred
Stock;
(g) The
rights of the holders of the shares of such series upon the voluntary or
involuntary liquidation, dissolution or winding up of the corporation, and the
relative rights of priority, if any, of payment of shares of that series;
and
(h) The
provisions as to voting, optional and/or other special rights and preferences,
if any.
Dividends
on outstanding shares of Preferred Stock shall be paid or declared and set apart
for payment before any dividends shall be paid or declared and set apart for
payment on the Common Stock with respect to the same dividend
period.
If upon
any voluntary or involuntary liquidation, dissolution or winding up of the
corporation, the assets available for distribution to holders of shares of
Preferred Stock of all series shall be insufficient to pay such holders the full
preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
3.
The name
and mailing address of the incorporator is as follows:
Michael
D. Harris
1555 Palm
Beach Lakes Boulevard Suite 310
West Palm
Beach, FL 33401
4.
The name
and mailing address of each person who is to serve as a director until the
first
annual meeting of the shareholders or until a successor is elected and
qualified, is as follows:
7.
The
Company is to have perpetual existence. In furtherance and not in limitation of
the
powers conferred by statute, the board of directors is expressly authorized to
make, amend, alter or repeal the bylaws of the Company, subject to the
limitations of Section 109 of the Delaware General Corporation Law which
provides that this delegation of power to the board of directors shall not
divest the shareholders of their rights under this Section 109.
8.
Elections
of directors need not be by written ballot unless the bylaws of the
Company
shall so provide.
Meetings
of shareholders may be held within or without the State of Delaware as the
bylaws may provide. The books of the Company may be kept (subject to any
provision contained in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the board of directors or in
the bylaws of the Company.
9.
The
Company reserves the right to amend, alter, change or repeal any provision
contained
in this certificate of incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon shareholders herein are granted
subject to this reservation.
10.
No
director of this Company shall be personally liable to the Company or its
shareholders
for monetary damages for breach of fiduciary duty as a director. Nothing in this
paragraph shall serve to eliminate or limit the liability of a director (a) for
any breach of the director's duty of loyalty to this Company or its
shareholders, (b) for acts or omissions not in good faith or which involves
intentional misconduct or a knowing violation of law, (c) under Section 174 of
the Delaware General Corporation Law, or (d) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is amended after approval by the shareholders of this article to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any
repeal or modification of the foregoing paragraph by the shareholders of the
Company shall not adversely affect any right or protection of a director of the
Company existing at the time of such repeal or modification.
11. (a)
Each person who was or is made a party or is threatened to be made a party
to or is
otherwise involved in any action, suit or proceeding (except as provided in
Section 11 (f)) whether civil, criminal or administrative, (a "Proceeding"), or
is contacted by any governmental or regulatory body in connection with any
investigation or inquiry (an "Investigation"), by reason of the fact that he or
she is or was a director or executive officer (as such term is utilized pursuant
to interpretations under Section 16 of the Securities Exchange Act of 1934) of
the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans (an "Indemnitee"), whether the basis of such Proceeding or
Investigation is alleged action in an official capacity or in any other capacity
as set forth above shall be indemnified and held harmless by the Company to the
fullest extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Company to provide broader
indemnification rights than such law permitted the Company to provide prior to
such amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such Indemnitee in connection
therewith and such indemnification shall continue as to an Indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the Indemnitee's heirs, executors and administrators. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Company the expenses incurred in defending
any such Proceeding in advance of its final disposition (an "Advancement of
Expenses");
provided,
however,
that an Advancement of Expenses shall be made only upon delivery
to the Company of an undertaking, by or on behalf of such Indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such Indemnitee is
not entitled to be indemnified for such expenses under this Section or otherwise
(an "Undertaking").
(b) If a
claim under Section 11(a) is not paid in full by the Company within 60
days
after a written claim has been received by the Company, except in the case of a
claim for an Advancement of Expenses, in which case the applicable period shall
be 20 days, the Indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim. If successful in whole or in
part in any such suit or in a suit brought by the Company to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an Advancement of Expenses) it shall be a defense that,
and
(ii)any
suit by the Company to recover an Advancement of Expenses
pursuant
to the terms of an Undertaking the Company shall be entitled to recover such
expenses upon a final adjudication that,
the
Indemnitee has not met the applicable standard of conduct set forth in the
Delaware General Corporation Law. Neither the failure of the Company (including
its board of directors, independent legal counsel, or its shareholders) to have
made a determination prior to the commencement of such suit that indemnification
of the Indemnitee is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Company (including its board of
directors, independent legal counsel, or its shareholders) that the Indemnitee
has not met such applicable standard of conduct or, in the case of such a suit
brought by the Indemnitee, be a defense to such suit. In any suit brought by the
Indemnitee to enforce a right hereunder, or by the Company to recover an
Advancement of Expenses pursuant to the terms of an undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified or to such
Advancement of Expenses under this Section 11 or otherwise shall be on the
Company. The rights to indemnification and to the Advancement of
Expenses
conferred
in this Section shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, this certificate of incorporation,
bylaw, agreement, vote of shareholders or disinterested directors or
otherwise.
(c)
The
Company may maintain insurance, at its expense, to protect itself and
any
director, officer, employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under the Delaware General
Corporation Law.
(d)
The
Company may, to the extent authorized from time to time by the board
of
directors, grant rights to indemnification and to the Advancement of Expenses,
to any employee or agent of the Company to the fullest extent of the provisions
of this Section with respect to the indemnification and Advancement of Expenses
of directors, and executive officers of the Company.
(e)
Notwithstanding
the indemnification provided for by this Section 11, the
Company's
bylaws, or any written agreement, such indemnity shall not include any expenses
incurred by such Indemnitees relating to or arising from any Proceeding in which
the Company asserts a direct claim against any Indemnitee whether such claim by
the Company is termed a complaint, counterclaim, crossclaim, third-party
complaint or otherwise.
12.
Special
meetings of the shareholders shall be held when directed by the Company's
Board of
Directors or upon written request by any beneficial owner, as defined by the
Rules of the Securities and Exchange Commission, of 10% or more of the
outstanding shares of common stock.
13.
The
Company expressly elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware.
I, THE
UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of
forming a corporation pursuant to the Delaware General Corporation Law, do make
this certificate, hereby declaring and certifying that this is my act and deed
and the facts herein stated are true, and accordingly have hereunto set my hand
this\day of November 2008.
