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EXHIBIT 3.16
UNIVERSAL TRADING TECHNOLOGIES CORPORATION
CERTIFICATE OF DESIGNATION
FOR
SERIES KW CONVERTIBLE
PREFERRED STOCK
______________________________
Pursuant to Sections 141(f) and 151
of the General Corporation Law of the State of Delaware
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Universal Trading Technologies Corporation (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the "DGCL"), does hereby certify that pursuant to the
provisions of Sections 141(f) and 151 of the DGCL, the Board of Directors of the
Corporation, pursuant to an Unanimous Written Consent of the Board of Directors
dated January 11, 2000, adopted the following resolution, which resolution
remains in full force and effect as of the date hereof:
WHEREAS, the Board of Directors of the Corporation is authorized,
within the limitations and restrictions stated in the Corporation's Certificate
of Incorporation, to fix by resolution or resolutions the designation of each
class or series of Preferred Stock (the "Preferred Stock") and the voting
powers, and any designations, preferences, and relative, participating, optional
or other special rights of any such class or series of Preferred Stock, as well
as such other provisions with regard to redemption (at the option of the holders
thereof and/or at the option of the Corporation), dividends, dissolution or the
distribution of assets, conversion or exchange, and any qualifications or
restrictions thereof or such other subjects or matters as shall be stated and
expressed in the resolution or resolutions providing for the issue of such stock
adopted by the Board of Directors; and
WHEREAS, it is the desire of the Board of Directors of the
Corporation, pursuant to such authority, to authorize and fix the terms of the
series of Preferred Stock designated as Series KW Convertible Preferred Stock
(the "Series KW Preferred"):
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NOW THEREFORE, be it resolved, that the terms and provisions of such
series and all other right or preferences granted to or imposed upon such series
or the holders thereof are as herein set forth:
1. Designation. A total of 123,240 shares shall be designated as
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"Series KW Preferred".
2. Rank. The Series KW Preferred shall, with respect to rights upon
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liquidation, dissolution and winding-up of the Corporation, rank pari passu with
all other series of preferred stock or other class of security expressly ranking
pari passu, including the Series TK Convertible Preferred Stock (such classes or
series, the "Pari Passu Classes") with the Series KW Preferred of the
Corporation and prior to all series or classes of Common Stock of the
Corporation ("Common Stock"). Nothing contained herein shall be construed to
prohibit the Corporation from authorizing or issuing, in accordance with its
Certificate of Incorporation and bylaws, as the same may be amended and in
effect from time to time, any classes or series of equity securities of the
Corporation ranking senior to or pari passu with the Series KW Preferred with
respect to rights upon liquidation, dissolution and winding-up of the
Corporation or both.
3. Dividends. The holders of the shares of the Series KW Preferred
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shall not be entitled to dividends.
4. Liquidation Preference.
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(a) Subject to the rights of holders of any class of capital
stock or series thereof expressly ranking senior to the Series KW Preferred,
upon any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, the holder of each share of the Series KW Preferred
then outstanding shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders an amount equal to
$24.34275 for each share of Series KW Preferred then held by such holder (such
amount being herein called the "Liquidation Preference") before any payment
shall be made or any assets distributed to the holders of Common Stock or any
other series of capital stock junior to the Series KW Preferred. If the assets
of the Corporation are not sufficient to pay in full the payments payable to the
holders of outstanding shares of Series KW Preferred and any Pari Passu Classes
upon the liquidation, dissolution or winding up of the affairs of the
Corporation, then the holders of all such shares shall share ratably with all
other holders of shares of Series KW Preferred and Pari Passu Classes in such
distribution of assets in proportion to the Liquidation Preference of the
respective shares.
(b) For the purposes of this Section 4, neither the voluntary
sale, conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all the property or assets of the
Corporation nor the consolidation or merger of
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the Corporation with or into one or more other corporations or other entities
shall be deemed to be a liquidation, dissolution or winding up of the
Corporation, voluntarily or involuntarily.
5. Conversion.
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(a) Rights of Holder of Convert. At any time (i) after the
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completion of initial public offering ("IPO") of the Company's Common Stock or
(ii) immediately upon a "Change of Control" (as defined below) each holder of
shares of Series KW Preferred may, at the option of the holder exercisable at
any time and from time to time thereafter, convert some or all of such holder's
shares of Series KW Preferred into such number of shares of Common Stock, par
value $0.01 per share, of the Corporation (the "Common Stock") as is obtained by
multiplying the number of shares of Series KW Preferred to be so converted by 10
(such number, as adjusted from time to time pursuant hereto, is herein called
the "Conversion Ratio"). For purposes hereof a "Change of Control" shall mean:
(x) the consolidation or merger of the Corporation or any affiliate of the
Corporation holding or controlling a majority of the assets relating to the
business of the Corporation with or into any third party; (y) the assignment,
sale, transfer, lease or other disposition of all or substantially all of the
assets of the Corporation and its affiliates taken as a whole; or (c) the
acquisition by any third party or group of third parties acting in concert, of
beneficial ownership of shares of greater than fifty percent (50%) of the voting
stock of the Corporation.
(b) Adjustments to Conversion Ratio. The Conversion Ratio shall
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be adjusted, from time to time by the Board of Directors of the Corporation, to
reflect the effect of any stock dividend, stock split, reverse stock split,
merger, consolidation, recapitalization (other than the issuance of Common Stock
in exchange for indebtedness or other obligation of similar value),
reorganization or other similar transaction affecting the Corporation so that
immediately following such event the holders of the Series KW Preferred shall be
entitled to receive upon conversion thereof the kind and amount of shares of
securities of the Corporation and other property which they would have owned or
been entitled to receive upon or by reason of such event if such shares of
Series KW Preferred had been converted to Common Stock immediately before the
record date (or, if no record date, the effective date) for such event. An
adjustment made pursuant to this paragraph (b) of this Section 5 shall become
effective immediately after the opening of business on the day next following
the record date in the case of a dividend or distribution and shall become
effective immediately after the opening of business on the day next following
the effective date in the case of an applicable subdivision, combination,
reclassification, merger, recapitalization, reorganization or other similar
transaction.
(c) Notice of Adjustments. The Corporation shall give each holder
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of Series KW Preferred prior written notice delivered to the applicable address
set forth on the record books of the Corporation of each adjustment made
pursuant to this paragraph (b) of Section 5.
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(d) Procedures for Conversion. Any holder of Series KW Preferred
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electing to convert such shares or any portion thereof shall deliver the
certificates therefor to the principal office of the Corporation, with the form
of notice of election to convert endorsed on such certificates fully completed
and duly executed. The conversion right with respect to such Series KW Preferred
shall be deemed to have been exercised on the date upon which the certificates
therefor with such notice of election duly executed shall have been so
delivered, and the person or persons entitled to receive Common Stock issuable
upon such conversion shall be treated for all purposes as the record holder or
holders of such Common Stock on such date.
(e) No Fractional Securities. No fractional shares of Common
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Stock shall be issued upon conversion of shares of Series KW Preferred. Instead
of any fractional shares of Common Stock which would otherwise be issuable upon
conversion of any share or shares of Series KW Preferred, the Corporation shall
pay a cash adjustment in respect of such fraction in such amount as the Board of
Directors of the Corporation shall in good faith determine.
(f) Taxes. If a holder converts shares of Series KW Preferred,
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the Corporation shall pay any documentary, stamp or similar issue or transfer
tax due on the issue of securities of the Corporation to the holder upon the
conversion. The holder shall pay any such tax due because any shares are issued
in a name other than the holder's.
(g) Reservation of Shares. The Corporation shall at all times
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reserve out of its authorized but unissued shares of Common Stock, or such
shares held in treasury enough of such shares (or other securities deliverable
upon conversion) to permit the conversion of all of the Series KW Preferred then
outstanding and the issuance of shares of Common Stock issuable upon the
conversion of all of the Series KW Preferred then outstanding. All shares of
Common Stock issued upon due conversion of shares of Series KW Preferred shall
be validly issued, fully paid and non-assessable.
6. Redemption.
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(a) General. At any time and from time to time after the fourth
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anniversary of the date this Certificate of Designation is first filed with the
Secretary of State of the State of Delaware, the Corporation may redeem all or
any portion of the then outstanding Series KW Preferred for an amount in cash
equal to the Liquidation Preference in accordance with the provisions of this
Section 6.
(b) Redemption Procedure. If the Corporation shall determine to
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redeem less than all shares of the Series KW Preferred then outstanding pursuant
to paragraph (a) of this Section 6, (i) the shares to be redeemed shall be
selected pro rata (or as nearly as may be) so that the number of shares redeemed
from each holder shall bear the same proportion to all the shares to be redeemed
that the total number of shares then held by such holder bears to the total
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number of shares then outstanding or (ii) if the number of holders of the Series
KW Preferred Stock exceeds 50, and the Board of Directors so determines, the
shares to be redeemed shall be selected by lot.
(c) Notice. Notice of every redemption pursuant to this Section 5
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shall be mailed, first class, postage prepaid, not less than 60 days prior to
the date fixed for redemption (the "Redemption Date"), to each holder's address
as it appears on the books of the Corporation. Each such notice shall state: the
Redemption Date; the number of shares of Series KW Preferred to be redeemed,
and, if less than all shares of Series KW Preferred held by such holder are to
be redeemed, the number of such shares to be redeemed from such holder; the
redemption price applicable to the shares to be redeemed; and the place or
places where such shares are to be surrendered.
(d) Rights of Holders. Notice having been mailed as aforesaid,
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from and after the Redemption Date (unless the Corporation defaults in providing
money for the payment of the redemption price) said shares shall no longer be
deemed to be outstanding, all rights of holders thereof as stockholders of the
Corporation (except the right to receive the redemption price thereof, without
interest) shall terminate, and, upon surrender, in accordance with said notice,
of the certificates representing any such shares (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so require),
such shares shall be redeemed by the Corporation at the applicable redemption
price; provided, however, that the Corporation may include in such notice a
statement that the money required for the payment of the redemption price will
be deposited on a specified date, prior to the Redemption Date, with a specified
bank or trust company (which shall have an office in The City of New York and
which shall have a combined capital and surplus of not less than $50,000,000) in
trust for the benefit of holders of shares called for redemption, and, notice
having been given, from and after such deposit shares called for redemption
shall no longer be deemed to be outstanding and all rights with respect to such
shares shall forthwith upon such deposit cease and terminate except for the
right to receive the amount payable upon surrender of the certificates
representing such shares from such bank or trust company (but not from the
Corporation). If less than all the shares represented by any surrendered
certificate are redeemed, a new certificate representing the unredeemed shares
shall be issued to the holder who surrendered such certificate. Holders of
shares of Series KW Preferred called for redemption shall not be entitled to any
interest allowed by any such depositary on money deposited to effect the
redemption but any such interest shall be paid to the Corporation. Any money
deposited as aforesaid for redemption of any shares and remaining unclaimed for
four years and eleven months after the date of such deposit shall then be repaid
to the Corporation upon its request, and the holders of such shares shall
thereafter look only to the Corporation for payment of the redemption price
thereof, without interest.
(e) Status of Redeemed Shares. Any share of Series KW Preferred
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redeemed or otherwise purchased or acquired by the Corporation shall be retired,
shall no longer be deemed outstanding, and shall not be reissued.
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7. Voting Rights. The holders of record of shares of Series KW
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Preferred shall not be entitled to vote on any matters presented to the
stockholders of the Company for approval, except as required by law.
8. General Provisions.
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(a) "Outstanding" Securities. The term "outstanding", when used
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with reference to shares of stock, shall mean issued shares, excluding shares
held by the Corporation, or a subsidiary thereof.
(b) Headings. The headings of the paragraphs, subparagraphs,
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clauses, and sub-clauses of this Certificate of Designation are for convenience
of reference only and shall not define, limit, or affect any of the provisions
hereof.
IN WITNESS WHEREOF, the undersigned have caused this certificate to be
signed by their respective Presidents and Secretaries, respectively, this 11/th/
day of January 2000.
UNIVERSAL TRADING TECHNOLOGIES CORPORATION
/s/ Fred S. Weingard
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Fred S. Weingard
President
/s/ Arthur J. Bacci
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Arthur J. Bacci
Chief Financial Officer and Secretary
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