SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
April 9, 2004
Date of Report (date of earliest event reported)
AMERICAN LEISURE HOLDINGS, INC.
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(Exact name of registrant as specified in its charter)
Nevada 333-48312 75-2877111
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(State or other jurisdiction (Commission File No.) I.R.S. Employer
of incorporation) (Identification No.)
Park 80 Plaza East, Saddlebrook, New Jersey 07663
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(Address of principal executive offices) (Zip Code)
(201 843 0820)
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(Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS AND REGULATION FD DISCLOSURE.
AMERICAN LEISURE HOLDINGS, INC.
BRIEF SUMMARY OF CERTIFICATE OF DESIGNATION OF SERIES E AND DETERMINATION
OF RIGHTS AND PREFERENCES OF SERIES E PREFERRED STOCK OF AMERICAN LEISURE
HOLDINGS, INC.
AMLH has designated 50,000 shares of Series E Convertible Preferred Stock, par
value $0.001 per share.
Ranking. The Series E Preferred Stock ranks senior to the Common Stock as to
dividends and liquidation preference but junior to Series A through D.
Dividends. Dividends on each share of the Series E Preferred Stock will be
earned at an annual rate of 4% of the liquidation preference per share.
Dividends shall be payable in preference and priority to any payment of any cash
dividend on Common Stock or any other shares of capital stock of the Company
junior in priority to the Series E Preferred Stock (such Common Stock and other
inferior stock being collectively referred to as "Junior Stock"). Any unpaid
dividends accrue without interest and are cumulative.
Liquidation Preference. Upon liquidation, dissolution or winding up of AMLH,
before payment of any amount due to any Junior Stock, each share of Series E
Preferred Stock will be entitled to be paid out of assets available for
distribution at the rate of $100 per share plus all accrued and unpaid
dividends, calculated through the date of liquidation.
Voting Rights. Each holder of outstanding shares of Series E Preferred Stock
shall be entitled to the number of votes equal to the number of whole shares of
Common Stock into which the shares of Series E Preferred Stock held by such
holder are convertible (as adjusted from time to time) at each meeting of
stockholders of the Company (and written actions of stockholders in lieu of
meetings) with respect to any and all matters presented to the stockholders of
the Company for their action or consideration. Except as provided by law, or by
the provisions of Subsection 3(b) of the Certificate of Designation of Series E,
or by the provisions establishing any other series of Preferred Stock, holders
of Series E Preferred Stock (as shall other other series of preferred stock)
shall vote together with the holders of Common Stock as a single class.
Redemption. AMLH has the right to redeem all or part of the outstanding Series E
Preferred Stock at any time after five years from the date of issue. The
redemption price per share will be $100 per share plus all accrued and unpaid
dividends, calculated through the date of redemption.
Conversion. Each share of Series E Preferred Stock shall be convertible, at the
option of the holder thereof, at any time and from time to time, into a maximum
of six point six, six, six (6.666) fully paid and non-assessable shares of
Common Stock (the "Conversion Rate") at a minimum of $15 per share of common
stock. In the event of a liquidation of the Company, the Conversion Rights shall
terminate at the close of business on the first full day preceding the date
fixed for the payment of any amounts distributable on liquidation to the holders
of Series E Preferred Stock. No fractional shares of Common Stock shall be
issued upon conversion of the Series E Preferred Stock. In lieu of fractional
shares, the Company shall pay cash equal to such fraction multiplied by the
quotient of the Liquidation Value divided by the Conversion Rate.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements
None
(b) Pro Forma Financial Information
None
(c) Exhibits
Certificate of Designation of Series E and determination of rights and
preferences of Series E Preferred Stock of American Leisure Holdings,
Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: April 9, 2004
AMERICAN LEISURE HOLDINGS, INC.
/s/ L. William Chiles
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L. William Chiles
Chief Executive Officer
/s/ Malcolm J. Wright
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Malcolm J. Wright
Chief Financial Officer
EXHIBIT INDEX
EXHIBIT NUMBER 1 EXHIBIT
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Certificate of Designation of Series E and determination of rights and
preferences of Series E Preferred Stock of American Leisure Holdings, Inc.
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CERTIFICATE OF DESIGNATION OF SERIES
AND DETERMINATION OF RIGHTS AND PREFERENCES OF
SERIES E PREFERRED STOCK OF
AMERICAN LEISURE HOLDINGS, INC.
American Leisure Holdings, Inc., a Nevada corporation (the "Company"),
acting pursuant to Nevada Revised Statues Section 78.1955, does hereby submit
the following Certificate of Designation of Series and Determination of Rights
and Preferences of its Series E Preferred Stock.
FIRST: The name of the Company is American Leisure Holdings, Inc.
SECOND: By unanimous consent of the Board of Directors of the Company
the following resolutions were duly adopted:
WHEREAS the Articles of Incorporation of the Company authorizes
Preferred Stock consisting of Ten Million (10,000,000) shares, par value $0.01
per share, issuable from time to time in one or more series; and
WHEREAS the Board of Directors of the Company is authorized, subject to
limitations prescribed by law and by the provisions of the Company's Articles of
Incorporation to establish and fix the number of shares to be included in any
series of Preferred Stock and the designation, rights, preferences, powers,
restrictions and limitations of the shares of such series;
WHEREAS it is the desire of the Board of Directors to establish and fix
the number of shares to be included in a new series of Preferred Stock and the
designation, rights, preferences and limitations of the shares of such new
series;
NOW, THEREFORE, BE IT RESOLVED that pursuant to the Company's Articles
of Incorporation there is hereby established a new series of Fifty Thousand
(50,000) shares of non redeemable, convertible Preferred Stock of the Company
(the "Series E Preferred Stock") to have the designation, rights, preferences,
powers, restrictions and limitations as follows:
1. Dividends. The holders of the Series E Preferred Stock shall be
entitled to receive, out of funds legally available therefor, cumulative
dividends at the rate of $4.00 (subject to appropriate adjustments in the event
of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares) per share per annum, payable in
preference and priority to any payment of any cash dividend on Common Stock or
any other shares of capital stock of the Company junior in priority to the
Series E Preferred Stock (such Common Stock and other inferior stock being
collectively referred to as "Junior Stock"), when and as declared by the Board
of Directors of the Company. Such dividends shall accrue with respect to each
share of Series E Preferred Stock from the date on which such share is issued
and outstanding and thereafter shall be deemed to accrue from day to day whether
or not earned or declared and whether or not there exists profits, surplus or
other funds legally available for the payment of dividends, and shall be
cumulative so that if such dividends on the Series E Preferred Stock shall not
have been paid, or declared and set apart for payment, the deficiency shall be
fully paid or declared and set apart for payment before any dividend shall be
paid or declared or set apart for any Junior Stock and before any purchase or
acquisition of any Junior Stock is made by the Company, except the repurchase of
Junior Stock from employees of the Company upon termination of employment. At
the earlier of: (1) the redemption of the Series E Preferred Stock; or (2) the
liquidation, sale or merger of the Company, any accrued but undeclared dividends
shall be paid to the holders of record of outstanding shares of Series E
Preferred Stock. No accumulation of dividends on the Series E Preferred Stock
shall bear interest. Each dividend shall be paid in cash and mailed to the
holders of record of the Series E Preferred Stock as their names and addresses
appear on the share register of the Company or at the office of the transfer
agent on the corresponding dividend payment date.
2. Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
the holders of shares of Series E Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Company available for distribution
to its stockholders on parity with the holders of the Parity Preferred Stock,
after and subject to the payment in full of all amounts required to be
distributed to the holders of any Senior Preferred Stock, but before any payment
shall be made to the holders of Junior Stock by reason of their ownership
thereof, an amount equal to $100.00 (the "Liquidation Value") per share of
Series E Preferred Stock plus any accrued but unpaid dividends (whether or not
declared). If upon any such liquidation, dissolution or winding up of the
Company the remaining assets of the Company available for distribution to its
stockholders shall be insufficient to pay the holders of shares of Series E
Preferred Stock the full amount to which they shall be entitled, the holders of
shares of Series E Preferred Stock and any class or series of stock ranking on
liquidation on a parity with the Series E Preferred Stock shall share ratably in
any distribution of the remaining assets and funds of the Company in proportion
to the respective amounts which would otherwise be payable in respect of the
shares held by them upon such distribution if all amounts payable on or with
respect to such shares were paid in full.
3. Voting.
(a) Each holder of outstanding shares of Series E Preferred
Stock shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series E Preferred Stock held by
such holder are convertible (as adjusted from time to time pursuant to Section 4
hereof), at each meeting of stockholders of the Company (and written actions of
stockholders in lieu of meetings) with respect to any and all matters presented
to the stockholders of the Company for their action or consideration. Except as
provided by law, by the provisions of Subsection 3(b) below, or by the
provisions establishing any other series of Preferred Stock, holders of Series E
Preferred Stock and of any other outstanding series of Preferred Stock shall
vote together with the holders of Common Stock as a single class.
(b) The Company shall not amend, alter or repeal preferences,
rights, powers or other terms of the Series E Preferred Stock so as to affect
adversely the Series E Preferred Stock, without the written consent or
affirmative vote of the holders of at least fifty one percent (51%) of the then
outstanding shares of Series E Preferred Stock, given in writing or by vote at a
meeting, consenting or voting (as the case may be) separately as a class. For
this purpose, without limiting the generality of the foregoing, the
authorization or issuance of any series of Preferred Stock which is on a parity
with or has preference or priority over the Series E Preferred Stock as to the
right to receive either dividends or amounts distributable upon liquidation,
dissolution or winding up of the Company shall be deemed to affect adversely the
Series E Preferred Stock.
4. Conversion. The holders of the Series E Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
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(a) Right to Convert. Each share of Series E Preferred Stock
shall be convertible, at the option of the holder thereof, at one time, into
such number of paid and nonassessable shares of Common Stock (the "Conversion
Rate") calculated by dividing the Liquidation Value by the Market Price (as
defined herein) but such Conversion Rate shall not be less than six point six,
six, six (6.666) which effectively equates to not less than $15 a Common share
(the "Low Conversion Rate"). Such initial Low Conversion Rates shall be subject
to adjustment as provided below. In the event of a liquidation of the Company,
the Conversion Rights shall terminate at the close of business on the first full
day preceding the date fixed for the payment of any amounts distributable on
liquidation to the holders of Series E Preferred Stock.
(b) Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of the Series E Preferred Stock. In lieu of
fractional shares, the Company shall pay cash equal to such fraction multiplied
by the quotient of the Liquidation Value divided by the Conversion Rate.
(c) Mechanics of Conversion.
(i) In order to at any time or from time to time to
convert any or all of the shares of Series E Preferred Stock issued and
outstanding into shares of Common Stock, the holders of the issued and
outstanding Series E Preferred Stock shall give notice to the Company that such
holders elect to convert any or all of the shares of Series E Preferred Stock
issued and outstanding. The date of receipt of such certificates and notice by
the transfer agent or the Company shall be the conversion date ("Conversion
Date"). On the Conversion Date, the shares of Series E Preferred Stock
surrendered for conversion shall be deemed converted without any other act by
the holders thereof. If required by the Company, certificates surrendered for
conversion shall be endorsed or accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Company, duly executed by
the registered holder or his or its attorney duly authorized in writing. The
Company shall, as soon as practicable after the Conversion Date, issue and
deliver at such office to such holders a certificate or certificates for the
number of shares of Common Stock to which such holder shall be entitled,
together with cash in lieu of any fraction of a share.
(ii) The Company shall at all times during which the
Series E Preferred Stock shall be outstanding, reserve and keep available out of
its authorized but unissued stock, for the purpose of effecting the conversion
of the Series E Preferred Stock, such number of its duly authorized shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding Series E Preferred Stock. Before taking any action which
would cause an adjustment reducing the Conversion Rate below the then par value
of the shares of Common Stock issuable upon conversion of the Series E Preferred
Stock, the Company will take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock at such adjusted
Conversion Rate.
(iii) Upon any such conversion, no adjustment to the
Conversion Rate shall be made for any accrued and unpaid dividends on the Series
E Preferred Stock surrendered for conversion or on the Common Stock delivered
upon conversion; the holder, by converting, waives his right to the payment of
cash for such accrued but unpaid dividends. In lieu of a cash dividend, the
holder shall receive such number of shares of Common Stock equal to (A) the
amount of accrued but unpaid dividends on such Series E Preferred Stock
surrendered for conversion by such holder, divided by (B) the Market Value (as
defined herein) of Common Stock on the Conversion Date. The term "Market Price"
shall mean, with respect to a share of Common Stock on any date, either: (1) if
there shall not then be a public market for the Common Stock, the fair market
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value per share of Common Stock as determined by the Board of Directors in good
faith exercising its fiduciary duties; or (2) if there shall then be a public
market for the Common Stock, the average of the Daily Market Prices (as defined
below) for the ten (10) consecutive Trading Days immediately prior to the
Conversion Date. The "Daily Market Price" for each such Trading Day shall be:
(aa) the last sale price on such day on the principal stock exchange or the
Nasdaq Stock Market, bulletin board or BBX Exchange ("Nasdaq") on which the
Common Stock is then listed or admitted to trading; (bb) if no sale takes place
on such day on any such exchange or Nasdaq, the average of the last reported
closing bid and ask prices on such day as officially quoted on any such exchange
or Nasdaq; (cc) if the Common Stock is not then listed or admitted to trading on
any stock exchange or Nasdaq, the average of the last reported closing bid and
ask prices on such day in the over-the-counter market as furnished by the Nasdaq
or the National Quotation Bureau, Inc.; or (dd) if neither Nasdaq nor the
National Quotation Bureau, Inc. is, at the time, engaged in the business of
reporting bid and ask prices, as furnished by any similar firm then engaged in
such business. "Trading Day" for this purpose means any day that the New York
Stock Exchange is open for trading.
(iv) All shares of Series E Preferred Stock, which
shall have been surrendered for conversion as herein provided shall no longer be
deemed to be outstanding and all rights with respect to such shares, including
the rights, if any, to receive dividends, notices and to vote, shall immediately
cease and terminate on the Conversion Date, except only the right of the holders
thereof to receive shares of Common Stock in exchange therefor. Any shares of
Series E Preferred Stock so converted shall be retired and cancelled and shall
not be reissued, and the Company may from time to time take such appropriate
action as may be necessary to reduce the number of shares of authorized Series E
Preferred Stock accordingly.
(d) Adjustment for Stock Splits and Combinations. If the
Company shall at any time or from time to time after this Certificate of
Designation is filed with the Nevada Secretary of State (the "Original Issue
Date") effect a subdivision of the outstanding Common Stock, the High and Low
Conversion Rates then in effect immediately before that subdivision shall be
proportionately decreased. If the Company shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock,
the High and Low Conversion Rates then in effect immediately before the
combination shall be proportionately increased. Any adjustment under this
paragraph shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(e) Adjustment for Certain Dividends and Distributions. In the
event the Company at any time, or from time to time after the Original Issue
Date shall make or issue, a dividend or other distribution payable in shares of
Common Stock without consideration, then and in each such event the High and Low
Conversion Rates shall be decreased as of the time of such issuance, by
multiplying the High and Low Conversion Rates by a fraction:
(i) the numerator of which shall be the total number
of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance, and
(ii) the denominator of which shall be the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance plus the number of shares of Common Stock issuable in
payment of such dividend or distribution.
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(f) Adjustment for Reclassification, Exchange, or
Substitution. If the Common Stock issuable upon the conversion of the Series E
Preferred Stock shall be changed into the same or a different number of shares
of any class or classes of stock, whether by capital reorganization,
reclassification, or otherwise (other than a subdivision or combination of
shares or stock dividend provided for above, or a reorganization, merger,
consolidation, or sale of assets for below), then and in each such event the
holder of each share of Series E Preferred Stock shall have the right thereafter
to convert such share into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification,
or other change, by holders of the number of shares of Common Stock into which
such shares of Series E Preferred Stock might have been converted immediately
prior to such reorganization, reclassification, or change, all subject to
further adjustment as provided herein.
(g) Adjustment for Merger or Reorganization, etc. In case of
any consolidation or merger of the Company with or into another corporation or
the sale of all or substantially all of the assets of the Company to another
corporation, then each share of Series E Preferred Stock shall thereafter be
convertible into the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Company deliverable upon conversion of such Series E Preferred Stock would have
been entitled upon such consolidation, merger or sale; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors)
shall be made in the application of the provisions in this Section 4 set forth
with respect to the rights and interest thereafter of the holders of the Series
E Preferred Stock, to the end that the provisions set forth in this Section 4
(including provisions with respect to changes in and other adjustments of the
High and Low Conversion Rates) shall thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock or other property
thereafter deliverable upon the conversion of the Series E Preferred Stock.
(h) No Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series E Preferred Stock against impairment.
(i) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the High and Low Conversion Rates pursuant to this
Section 4, the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder, if
any, of Series E Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based and shall file a copy of such certificate with its
corporate records. The Company shall, upon the written request at any time of
any holder of Series E Preferred Stock, furnish or cause to be furnished to such
holder a similar certificate setting forth (1) such adjustments and
readjustments, (2) the High and Low Conversion Rates then in effect, and (3) the
number of shares of Common Stock and the amount, if any, of other property which
then would be received upon the conversion of Series E Preferred Stock. Despite
such adjustment or readjustment, the form of each or all Series E Preferred
Stock Certificates, if the same shall reflect the initial or any subsequent
conversion price, need not be changed in order for the adjustments or
readjustments to be valued in accordance with the provisions of this Certificate
of Designation, which shall control.
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(j) Notice of Record Date. In the event:
(A) that the Company declares a dividend (or any
other distribution) on its Common Stock payable in Common Stock or other
securities of the Company;
(B) that the Company subdivides or combines its
outstanding shares of Common Stock;
(C) of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its outstanding shares
of Common Stock or a stock dividend or stock distribution thereon), or of any
consolidation or merger of the Company into or with another corporation, or of
the sale of all or substantially all of the assets of the Company; or
(D) of the involuntary or voluntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at its principal office or at the
office of the transfer agent of the Series E Preferred Stock, and shall cause to
be mailed to the holders of the Series E Preferred Stock at their last addresses
as shown on the records of the Company or such transfer agent, at least ten days
prior to the record date specified in (A) below or twenty days before the date
specified in (B) below, a notice stating:
(A) the record date of such dividend, distribution,
subdivision or combination, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend,
distribution, subdivision or combination are to be determined, or
(B) the date on which such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution or winding up.
5. Company Redemption.
(a) If, on or after the date five (5) years after the Original
Issue Date, any shares of Series E Preferred Stock shall be then outstanding,
the Company shall have the right to redeem (unless otherwise prevented by law)
all (but not less than all) such outstanding shares at an amount per share equal
to the Liquidation Value plus an amount equal to accrued but unpaid dividends,
if any, to the date of redemption on such share.
(b) Sixty days' prior notice by the Company of the exercise of
the redemption option pursuant to Section 5(a) shall be sent by first-class
certified mail, postage prepaid and return receipt requested, by the Company to
the holders of the shares of Series E Preferred Stock to be redeemed at their
respective addresses as the same shall appear on the books of the Company.
(c) Cancellation of Redeemed Stock. Any shares of Series E
Preferred Stock redeemed pursuant to this Section or Section 6 or otherwise
acquired by the Company in any manner whatsoever shall be canceled and shall not
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under any circumstances be reissued; the Company may from time to time take such
appropriate corporate action as may be necessary to reduce accordingly the
number of authorized shares of the Company's capital stock.
(d) Anything contained in this Section 5 to the contrary
notwithstanding, the holders of shares of Series E Preferred Stock to be
redeemed in accordance with this Section shall have the right, exercisable at
any time up to the close of business on the applicable redemption date (unless
the Company is legally prohibited from redeeming such shares on such date, in
which event such right shall be exercisable until the removal of such legal
disability), to convert all or any part of such shares to be redeemed as herein
provided into shares of Common Stock pursuant to Section 4 hereof.
6. Reservation of Common Stock. The Company shall at all times during
which the Series E Preferred Stock shall be outstanding, reserve and keep
available out of its authorized but unissued stock, for the purpose of effecting
the conversion of the Series E Preferred Stock, such number of its duly
authorized shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding Series E Preferred Stock.
7. Amendment. This Certificate of Designation constitutes an agreement
between the Company and the holders of the Series E Preferred Stock. It may be
amended by vote of the Board of Directors of the Company and the holders of at
least fifty one percent (51%) of the outstanding shares of Series E Preferred
Stock.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed by its President this 1 day of April, 2004.
By:
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Malcolm J. Wright
President
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