ex4_1.htm


    
      

    

    Exhibit
4.1

     

    POSITRON
CORPORATION

    (a
Texas Corporation)

    


    STATEMENT
OF DESIGNATION ESTABLISHING

    SERIES
S CONVERTIBLE PREFERRED STOCK

    


    To the
Secretary of the State of Texas:

    


    Pursuant
to the provisions of Article 3.007 of the Texas Business Organization Code, the
undersigned corporation submits the following statement for the purposes of
establishing and designating a series of shares and determining and fixing the
relative rights and preferences thereof:

     

    A.          
The
name of the corporation is Positron Corporation (the
“Corporation”);

    


    B.           The
following resolution, establishing and designating a series of shares and
determining and fixing the relative rights and preferences thereof, was duly
adopted by the Board of Directors of the Corporation on September 25,
2006;

    


    RESOLVED, that pursuant to the
authority vested in the Board of Directors of the Corporation by its Articles of
Incorporation, as amended, there hereby is created, out of the 10,000,000 shares
of preferred stock authorized in Article Four of its Articles of Incorporation,
as amended, a series of One Hundred Thousand (100,000) shares of Preferred
Stock, par value $1.00 per share (the “Series S Preferred Stock”), of the
Corporation, and the designation, amount and stated value of such series of
Preferred Stock and the voting powers, preferences, and relative, participating,
optional and other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereon, are set forth as
follows:

    


    1.           
 Designation and
Number of Shares.  The designation of said series of preferred
stock authorized by this resolution shall be Series S Convertible Preferred
Stock (the “Series S Preferred Stock”) which shall consist of a maximum of One
Hundred Thousand (100,000) shares of such Series S Preferred Stock, $1.00 par
value per share, which shall have the preferences, rights, qualifications,
limitations and restrictions set forth below.

    


    2.           
 Rank.  All
shares of the Series S Preferred Stock shall rank, both as the payment of
dividends and as to distributions of assets upon liquidation or winding up of
the Corporation, whether voluntary or involuntary, (x) junior to: (i) the shares
of Series A 8% Cumulative Convertible Redeemable Preferred Stock (the “Series A
Preferred Stock”), (ii) to the shares of Series B Preferred Stock of the
Corporation that may from time-to-time be outstanding, and (iii) to the shares
of Series S Convertible Preferred Stock and (y) prior to (i) all of the
Corporation’s now and hereafter issued common stock, par value $0.01 per share
(the “Common Stock”), and (ii) all of the Corporation’s hereafter issued capital
stock ranking junior to the Series S Preferred Stock both as to payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, when and if
issued (the Common Stock and any other junior capital stock being herein
referred to as “Junior Stock”).


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    3.            
Voting
Rights.  Except as otherwise expressly provided herein or by
law, the holder of shares of the Series S Preferred Stock shall be entitled to
vote on all matters and shall be entitled to Ten Thousand (10,000) votes for
each share of the Series S Preferred Stock held by such holder, such number of
votes to be appropriately adjusted in the event of any split, reverse split or
dividend of the common stock.  Except as otherwise expressly provided
herein or as expressly required by law, the holders of shares of the Series S
Preferred Stock and holder of shares of the Corporation’s common stock shall
vote together as a single class on all matters.  As used in this
Section 3, the term “Common Stock” shall mean and include the Corporation’s
authorized common stock, par value $.01 per share, as constituted on the date of
filing of this certificate of designation (the “Designation
Certificate”).

    


    4.            
Dividend
Provisions.  The holders of the Series S Preferred Stock are
not entitled to receive any dividends.

    


    5.            
Conversion of Series S
Preferred Stock Preferred Stock into Common Stock.  The holders
of record of shares of Series S Preferred Stock shall have the right, at their
option, to convert such shares into shares of the Common Stock, at any time from
the date of the issuance of such Series S Preferred Stock Preferred Stock in
accordance with and subject to the following terms and conditions:

    


    a.      At
any time following the issuance of the shares of Series S Preferred Stock, the
Series S Preferred Stock shall, on five days prior written notice to the
Corporation, be convertible into a number of fully paid and non-assessable
shares of Common Stock equal to the number of Series S Preferred Stock being
converted multiplied by Ten Thousand (10,000) (the “Conversion Rate”), subject
to adjustment as hereinafter provided in Section 6.  The exchange
shall be consummated at the office of the transfer agent for the Corporation’s
Common Stock (or at such other place or places as may be designated by the
Corporation with notice to the holders of record of the shares of Series S
Preferred Stock).

    


    b.      In
order to convert shares of Series S Preferred Stock into Common Stock, the
holder thereof shall surrender the certificate or certificates for shares of
Series S Preferred Stock, duly endorsed to the Corporation or in blank, or
accompanied by proper instruments of transfer to the Corporation (or, in the
case of a lost or destroyed certificate, proof of loss or destruction and
indemnity as required by the Corporation), at the office of the Corporation’s
transfer agent, and shall give written notice to the Corporation that he elects
to convert the same and shall state therein the name or names in which he wishes
the certificate or certificates for Common Stock to be issued.  If the
certificates for Common Stock are to be issued in a name or names other than
that in which such shares of Series S Preferred Stock was registered, the holder
of the certificates being surrendered shall with such written notice pay to the
transfer agent a sum to cover any tax which may be payable in respect of any
transfer involved in such issuance, or shall establish to the satisfaction of
the transfer agent that such tax has been paid or is not due and
payable.  The transfer agent will, as soon as practicable thereafter,
deliver at such office to such holder, or to its nominee or nominees, a
certificate or certificates for the number of full shares of Common Stock to
which it shall be entitled as aforesaid.  Shares of the Series S
Preferred Stock shall be deemed to have been converted as of the date of the
surrender of such shares for conversion as provided above, and 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 holders of such
shares of Common Stock on such date;


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    c.      All
shares of the Series S Preferred Stock which shall have been converted into
Common Stock as herein provided shall not be reissued as shares of Series S
Preferred Stock but shall have the status of authorized and unissued shares of
Preferred Stock undesignated as to series; and

    


    d.      Fractional
shares of Common Stock shall not be issued upon the conversion of the shares of
Series S Preferred Stock but shall be addressed by the Corporation through the
rounding of such fraction to the next whole share of Common Stock.

    


    6.            
Adjustment of
Conversion Rate.  The rate at which each share of Series S
Preferred Stock may be converted into Common Stock (hereinafter called the
conversion rate) shall be subject to the following adjustments;

    


    a.      While
any such shares of the Series S Preferred Stock shall be outstanding, in case
the Corporation shall subdivide the outstanding shares of Common Stock into a
greater number of shares of common stock, or combine the outstanding shares of
Common Stock into a smaller number of  shares of Common
Stock,  the number of shares the Series S Preferred Stock are
convertible into shall be
proportionately  increased  or  decreased, as the
case may require, such increase or
decrease  to  become  effective  immediately
after the  opening of  business on the date following the
day upon which such subdivision or combination becomes effective;

    


    b.      Any
dividend to holders of Common Stock in shares of Common Stock
shall  be considered a  subdivision of  the
outstanding shares of Common Stock and an adjustment in the Conversion Rate
shall be made in accordance with the provisions of Section 5 with respect to the
subdivision of outstanding shares of Common Stock.

    


    c.      No
adjustment of the Conversion Rate shall be made by reason of the issuance of
Common Stock to non shareholders of the Corporation in exchange for cash,
property or services provided that if the Corporation shall offer to the holders
of the Corporation’s Common Stock any rights to subscribe for any securities of
the Corporation then the holders of the shares of Series S Preferred Stock shall
be entitled to subscribe for the purchase of the same number of securities on
identical terms as they would have been entitled had they held that number of
shares of Common Stock into which the shares of Series S Preferred Stock was
convertible on such date; and

    


    d.      In
case the Corporation shall be reorganized or recapitalized or shall be
consolidated with or merged into another corporation, or shall sell or transfer
its property and assets as, or substantially as, an entirety, proper provisions
shall be made as part of the terms of such reorganization, recapitalization,
consolidation, merger, sale or transfer whereby the holder of any shares of the
Series S Preferred Stock outstanding immediately prior to such event shall
thereafter be entitled to such conversion rights with respect to securities of
the Corporation resulting from such reorganization, recapitalization,
consolidation of merger, or to which such sale or transfer shall be made, as
shall be substantially equivalent to the conversion rights provided for herein
with respect to such shares of Series S Preferred Stock.

    


    7.            
Prior Notice of
Certain Events.  In the event:

    


    (i) the
Corporation shall (1) declare any dividend (or any other distribution) on its
Common Stock, other than (A) a dividend payable in shares of Common Stock or (B)
a dividend payable in cash out of its retained earnings other than any special
or nonrecurring or other extraordinary dividend or (2) declare or authorize a
redemption or repurchase of the then-outstanding shares of Common Stock;
or


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    (ii)           the
Corporation shall authorize the granting to all holders of Common Stock of
rights, or warrants to subscribe for or purchase any shares of stock of any
class or series or of any other rights or warrants; or

    


    (iii)           of
any reclassification of Common Stock (other than a subdivision or combination of
the outstanding Common Stock, or a change in par value, or from par value to no
par value; or from no par value to par value), or of any consolidation or merger
to which the Company is a partly and for which approval of any stockholders of
the Corporation shall be required, or of the sale or transfer of all or
substantially all of the assets of the Corporation or of any compulsory share
exchange whereby the Common Stock is converted into other securities, cash or
other property, or

    


    (iv)           of
the voluntary or involuntary dissolution, liquidation or winding up of the
Corporation;

    


    then the
Corporation shall cause to be mailed to the holders of record of the Series S
Preferred Stock, at their last addresses as they shall appear upon the stock
transfer books of the Corporation, at least fifteen (15) days prior to the later
of the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record (if any) is to be taken for the purpose
of a dividend, distribution, redemption, repurchase, rights or warrants or, if a
record id not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, redemption, rights or warrants are to be
determined or (y) the date on which a reclassification, consolidation, merger,
sale, transfer, share exchange, 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, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice.

    


    8.            
Reservation of Common
Shares.  The Corporation shall at all times reserve and keep
available, out of its authorized and unissued Common Stock a sufficient number
of shares of Common Stock in order to issue such Common Stock upon conversions
of all outstanding shares of Series S Preferred Stock;

    


    9.            
Amendments.  The
terms of the Series S Preferred Stock shall not be amended without the consent
of the holders of not less than a majority of the outstanding shares of Series S
Preferred Stock.

    


    10.           Other
Rights.  Except as provided by law, the Series S Preferred
Stock shall not have any designation, preferences, or relative, participating,
optional or other special rights, or qualifications, limitations or restrictions
thereof, other than as set forth herein and in the Certificate of Incorporation
of this Corporation; and

    


    11.           Notices.  Any
notice required to be given to holders of shares of Series S Preferred Stock
shall be deemed given upon deposit in the United States mail, postage prepaid,
addressed to such holder of record at his address appearing on the books of the
Corporation, or upon personal delivery at the aforementioned
address.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    IN WITNESS WHEREOF, I have
executed and subscribed this Statement of Designation and do affirm the
foregoing as true under penalties of perjury this 7th day of November,
2008.

    


    
      
        	
                ATTEST:

              	 
      
	 
      	 
      
	 
      	 
      
	
                Patrick
      Rooney, Chairman