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EXHIBIT A
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES A 8% SENIOR CONVERTIBLE
PARTICIPATING PREFERRED STOCK
of
marchFIRST, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, the undersigned, [ ], [ title ], and [ ],
[ title ], of marchFIRST, Inc., a Delaware corporation (hereinafter
called the "CORPORATION"), pursuant to the provisions of Sections 103 and 151 of
the General Corporation Law of the State of Delaware, do hereby make this
Certificate of Designations and do hereby state and certify that pursuant to the
authority expressly vested in the Board of Directors of the Corporation by the
Amended and Restated Certificate of Incorporation, the Board of Directors duly
adopted the following resolutions:
RESOLVED, that, pursuant to Article 1 of the Amended and
Restated Certificate of Incorporation (which authorizes 3,000,000 shares of
preferred stock, $.001 par value ("PREFERRED STOCK")), the Board of Directors
hereby fixes the powers, designations, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions, of a series of Preferred Stock.
RESOLVED, that each share of such series of Preferred Stock
shall rank equally in all respects and shall be subject to the following
provisions:
1. NUMBER AND DESIGNATION. 427,717 shares of the Preferred Stock
of the Corporation shall be designated as Series A 8% Senior Convertible
Participating Preferred Stock (the "SERIES A PREFERRED STOCK").
2. DEFINITIONS. Unless the context otherwise requires, when used
herein the following terms shall have the meaning indicated.
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"20 DAY MARKET PRICE" means the average of the daily Market Prices of
the Common Stock for the 20 consecutive trading days ending the day prior to the
date for which such value is to be computed.
"ADJUSTED CONVERSION PRICE" means, at any time, the Initial Liquidation
Preference divided by the Conversion Ratio in effect at such time.
"AFFILIATE" means, with respect to any specified Person, any other
Person which, directly or indirectly, controls, is controlled by or is under
direct or indirect common control with, such specified Person. For the purposes
of this definition, "control" when used with respect to any Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "affiliated," "controlling," and "controlled" have
meanings correlative to the foregoing.
"BOARD OF DIRECTORS" means the Board of Directors of the Corporation.
"BUSINESS DAY" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in New York
City, New York generally are authorized or required by law or other governmental
actions to close.
"COMMON STOCK" means the Corporation's common stock, par value $.001
per share.
"CONVERSION RATIO" means 500 as of the Issue Date, subject to
adjustment from time to time pursuant to paragraph 8(g) hereof.
"DISCLOSURE LETTER" means the Disclosure Letter dated December 13, 2000
setting forth exceptions to the Stock Purchase Agreement dated as of December
13, 2000 between the Corporation and the initial holder of the Series A
Preferred Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute, and the rules and regulations promulgated thereunder.
"FIRST CALL DATE" means the 1-year anniversary of the Issue Date.
"GROUP" means a group within the meaning of Section 13(d)(3) of the
Exchange Act.
"INITIAL LIQUIDATION PREFERENCE" is an amount equal to $1,000.00 per
whole share of Series A Preferred Stock (as adjusted for stock splits, stock
dividends and similar transactions).
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"ISSUE DATE" means the first date of issuance of shares of Series A
Preferred Stock.
"LIQUIDATION PREFERENCE" is an amount equal to $1,000.00 per whole
share of Series A Preferred Stock as adjusted as provided in Section 4(b) for
dividends not paid in full and as adjusted for stock splits, stock dividends and
similar transactions.
"MARKET PRICE" means, with respect to the Common Stock, on any given
day, (i) the price of the last trade, as reported on the Nasdaq National Market,
not identified as having been reported late to such system, or (ii) if the
Common Stock is so quoted, but not so traded, the average of the last bid and
ask prices, as those prices are reported on the Nasdaq National Market, or (iii)
if the Common Stock is not listed or authorized for trading on the Nasdaq
National Market or any comparable system, the average of the closing bid and
asked prices as furnished by two members of the National Association of
Securities Dealers, Inc. selected from time to time by the Corporation for that
purpose; PROVIDED that, in connection with (i) or (ii), the Corporation may from
time to time specify in advance the time at which the trade price or bid and ask
prices, respectively, shall be determined for purposes of a particular
calculation under this Certificate of Designations. If the Common Stock is not
listed and traded in a manner that the quotations referred to above are
available for the period required hereunder, the Market Price per share of
Common Stock shall be deemed to be the fair value per share of such security as
determined in good faith by the Board of Directors of the Corporation.
"MARKET VALUE" means with respect to some number of shares of Common
Stock, the Market Price times such number of shares.
"MINIMUM CALL STOCK PRICE TEST" shall be satisfied with respect to a
notice of redemption if the Market Price has been at least $7.50 per share
(subject to adjustment for stock splits, stock dividends and similar
transactions) for 20 of the last 30, and each of the last 5, trading days
immediately preceding the date of the notice of redemption.
"OUTSTANDING", when used with reference to shares of stock, means
issued and outstanding shares, excluding shares held by the Corporation or a
subsidiary.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust and any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"SECOND CALL DATE" means the 3-year anniversary of the Issue Date.
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"STOCKHOLDER APPROVAL EVENT" means the approval by the stockholders of
the Corporation at or before the next annual meeting of stockholders of the
Corporation of the issuance of the Series A Preferred Stock and Series B
Preferred Stock, the terms thereof and the exchange of shares of Series B
Preferred Stock into shares of Series A Preferred Stock.
3. RANK.(a) Any class or series of stock of the Corporation shall
be deemed to rank:
(i) prior to the Series A Preferred Stock, either as
to the payment of dividends or as to distribution of assets
upon liquidation, dissolution or winding up, or both, if the
holders of such class or series shall be entitled by the terms
thereof to the receipt of dividends and of amounts
distributable upon liquidation, dissolution or winding up, in
preference or priority to the holders of Series A Preferred
Stock ("SENIOR SECURITIES");
(ii) on a parity with the Series A Preferred Stock,
either as to the payment of dividends or as to distribution of
assets upon liquidation, dissolution or winding up, or both,
whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof be
different from those of the Series A Preferred Stock, if such
stock shall be Series B 12% Senior Participating Preferred
Stock ("SERIES B PREFERRED STOCK") or if the holders of the
Series A Preferred Stock and of such class of stock or series
shall be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, or both, in proportion to their
respective amounts of accrued and unpaid dividends per share
or liquidation preferences (including, but not limited to
preferences as to payment of dividends or other amounts
distributable upon liquidation), without preference or
priority one over the other and such class of stock or series
is not a class of Senior Securities ("PARITY SECURITIES"); and
(iii) junior to the Series A Preferred Stock, either
as to the payment of dividends or as to the distribution of
assets upon liquidation, dissolution or winding up, or both,
if such stock or series shall be Common Stock or if the
holders of the Series A Preferred Stock shall be entitled by
the terms thereof to receipt of dividends, and of amounts
distributable upon liquidation, dissolution or winding up, in
preference or priority to the holders of shares of such stock
or series (including, but not limited to
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preferences as to payment of dividends or other amounts
distributable upon liquidation) ("JUNIOR SECURITIES").
(b) The respective definitions of Senior Securities, Junior
Securities and Parity Securities shall also include any rights or options
exercisable or exchangeable for or convertible into any of the Senior
Securities, Junior Securities and Parity Securities, as the case may be.
(c) The Series A Preferred Stock shall be subject to the
creation of Junior Securities and Parity Securities.
4. DIVIDENDS: (a) The holders of shares of Series A Preferred
Stock shall be entitled to receive with respect to each share of Series A
Preferred Stock, when, as and if declared by the Board of Directors, out of
funds legally available for the payment of dividends, dividends at a rate per
annum equal to eight percent (8%) of the Liquidation Preference per share,
payable in accordance with the terms of this Section 4, at the election of the
Corporation on or before each payment date, either (A) in cash or (B) in
additional shares ("ADDITIONAL SHARES") of either (i) Series A Preferred Stock
if a Stockholder Approval Event shall have occurred or (ii) Series B Preferred
Stock if a Stockholder Approval Event shall not have occurred. Such dividends
shall be cumulative from the Issue Date regardless of when actually paid (except
that dividends on Additional Shares shall accrue pursuant to their terms from
the date such Additional Shares are issued), whether or not in any Dividend
Period (as defined below) or Dividend Periods there shall be funds of the
Corporation legally available for the payment of such dividends, and shall be
payable semi-annually in arrears on June 30 and December 31 of each year (unless
such day is not a Business Day, in which event such dividends shall be payable
on the next succeeding Business Day) (each such date being a "DIVIDEND PAYMENT
DATE" and each such semi-annual period being a "DIVIDEND PERIOD"). Each such
dividend shall be payable to the holders of record of shares of the Series A
Preferred Stock as they appear on the share register of the Corporation on the
corresponding Record Date. As used herein, the term "RECORD DATE" means, with
respect to the dividend payable on June 30 and December 31, respectively of each
year, the preceding June 15 and December 15, or such other record date, not more
than 60 days nor less than 10 days preceding the payment dates thereof, as shall
be fixed by the Board of Directors. Accrued and unpaid dividends for any past
Dividend Periods may be declared and paid at any time, without reference to any
Dividend Payment Date, to holders of record on such record date, not more than
45 days preceding the payment date thereof, as may be fixed by the Board of
Directors.
(b) The amount of dividends payable for each full Dividend
Period for the Series A Preferred Stock shall be computed by dividing the annual
eight percent (8%) rate by two. The amount of dividends payable for the initial
Dividend Period, or any other period shorter or longer than a full Dividend
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Period, on the Series A Preferred Stock shall be computed on the basis of twelve
30-day months and a 360-day year. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on the
Series A Preferred Stock that may be in arrears; PROVIDED that if dividends are
not paid in full on any Dividend Payment Date, dividends will cumulate as if the
Corporation elected to pay the unpaid dividends in cash and the Liquidation
Preference had been increased by the amount of unpaid dividends until paid.
(c) So long as any shares of the Series A Preferred Stock are
outstanding, no dividend, except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on any Parity Securities, nor
shall any Parity Securities be redeemed, purchased or otherwise acquired for any
consideration (or moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Corporation, directly or
indirectly (except by conversion into or exchange for Junior Securities), unless
in each case full cumulative dividends have been or contemporaneously are
declared and paid or declared and consideration sufficient for the payment
thereof set apart for such payment on the Series A Preferred Stock for all
Dividend Periods terminating on or prior to the date of payment of the dividend
on such class or series of Parity Securities or the redemption, purchase or
other acquisition thereof. When dividends are not paid in full or consideration
sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon shares of the Series A Preferred Stock and all dividends declared
upon any other class or series of Parity Securities shall be declared ratably in
proportion to the respective amounts of dividends accumulated and unpaid on the
Series A Preferred Stock and accumulated and unpaid on such Parity Securities.
(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in shares
of, or to effectuate a stock split on, or options, warrants or rights to
subscribe for or purchase shares of, Junior Securities) shall be declared or
paid or set apart for payment or other distribution declared or made upon Junior
Securities, nor shall any Junior Securities be redeemed, purchased or otherwise
acquired (other than a redemption, purchase or other acquisition of shares of
Common Stock made for purposes of an employee incentive or benefit plan of the
Corporation or any subsidiary) (any such dividend, distribution, redemption or
purchase being hereinafter referred to as a "JUNIOR SECURITIES DISTRIBUTION")
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation,
directly or indirectly (except by conversion into or exchange for Junior
Securities), unless in each case (i) the full cumulative dividends on all
outstanding shares of the Series A Preferred Stock and accrued and unpaid
dividends on any other Parity Securities shall have been paid or set apart for
payment for all past Dividend Periods with respect to the Series A Preferred
Stock and all past dividend periods
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with respect to such Parity Securities and (ii) sufficient consideration shall
have been paid or set apart for the payment of the dividend for the current
Dividend Period with respect to the Series A Preferred Stock and the current
dividend period with respect to such Parity Securities.
(e) If the Corporation elects to pay dividends in Additional
Shares, the number of Additional Shares to be issued as dividends will equal the
cash amount of the dividend that would have been payable if dividends were paid
in cash, divided by the Initial Liquidation Preference.
(f) In case the Corporation shall fix a record date for the
making of any dividend or distribution to holders of Common Stock (including
distributions of stock of the Corporation or its subsidiaries other than
dividends or distributions payable solely in Common Stock), the holder of each
share of Series A Preferred Stock on such record date shall be entitled to
receive an equivalent dividend or distribution based on the number of shares of
Common Stock into which such share of Series A Preferred Stock is convertible on
such record date.
5. LIQUIDATION PREFERENCE. (a) In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for
the holders of Junior Securities, the holders of the shares of Series A
Preferred Stock shall be entitled to receive with respect to each share of
Series A Preferred Stock an amount equal to all dividends (whether or not
earned or declared) accrued and unpaid thereon to the date of final
distribution to such holders plus an amount in cash equal to the Liquidation
Preference. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Series A Preferred Stock
shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any Parity Securities, then such assets, or the
proceeds thereof, shall be distributed among the holders of shares of Series
A Preferred Stock and any such other Parity Securities ratably in accordance
with the respective amounts that would be payable on such shares of Series A
Preferred Stock and any such other Parity Securities if all amounts payable
thereon were paid in full.
(b) Upon the completion of the distribution required by
Section 5(a) and any other distribution that may be required with respect to any
other series of Preferred Stock that may from time to time come into existence,
subject to the rights of any other series of Preferred Stock that may from time
to time come into existence, the holders of Series A Preferred Stock and the
holders of Series B Preferred Stock shall participate with the Common Stock
ratably on an as converted basis (assuming that each share of Series B Preferred
Stock were converted at the same rate as Series A Preferred Stock) in the
distribution of assets, or the proceeds thereof, until the holders of Series A
Preferred Stock shall
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have received (including amounts paid pursuant to Section 5(a)) an aggregate of
$1,500.00 per share of Series A Preferred Stock (in each case as adjusted for
any stock splits, stock dividends, recapitalizations or the like); thereafter,
subject to the rights of any other series of Preferred Stock that may from time
to time come into existence, if assets remain in the Corporation, the holders of
the Common Stock of the Corporation shall receive the distribution of assets, or
the proceeds thereof, until such time as the holders of Common stock shall have
received, in the aggregate, distributions equal to their pro-rata percentage of
the shares of the Corporation as if the holders of Series A Preferred Stock and
the holders of Series B Preferred Stock were participating with the Common Stock
(and were not entitled to any preference thereto) on an as converted basis
(assuming that each share of Series B Preferred Stock were converted at the same
rate as Series A Preferred Stock) beginning with the first dollar paid in such
liquidation, dissolution or winding up; thereafter, subject to the rights of any
other series of Preferred Stock that may from time to time come into existence,
if assets remain in the Corporation the holders of the Common Stock, the Series
A Preferred Stock and the Series B Preferred Stock shall participate in the
remaining distributions on as converted basis (assuming that each share of
Series B Preferred Stock were converted at the same rate as Series A Preferred
Stock).
(c) Notwithstanding anything else in this Certificate of
Designation, a liquidation, dissolution or winding up, voluntary or involuntary,
of the Corporation shall be deemed to have occurred upon (A) (i) the acquisition
of the Corporation by another entity by means of any transaction or series of
related transactions (including, without limitation, any reorganization, merger
or consolidation, whether of the Corporation with or into any other corporation
or corporations or of any other corporation or corporations with or into the
Corporation, but excluding any merger effected exclusively for the purpose of
changing the domicile of the Corporation); or (ii) a sale of all or
substantially all of the assets of the Corporation; PROVIDED that a
consolidation or merger as a result of which the holders of capital stock of the
Corporation immediately prior to such merger or consolidation possess (by reason
of such holdings) 50% or more of the voting power of the corporation surviving
such merger or consolidation (or other corporation which is the issuer of the
capital stock into which the capital stock of the Corporation is converted or
exchanged in such merger or consolidation) shall not be treated as a
liquidation, dissolution or winding up, voluntary or involuntary, of the
Corporation within the meaning of this paragraph 5 or (B) a transaction or
series of transactions in which a person or group of persons (as defined in Rule
13d-5(b)(1) of the Exchange Act) (excluding the initial holder of the Series A
Preferred Stock or any of its Affiliates) acquires beneficial ownership (as
determined in accordance with Rule 13d-3 of the Exchange Act) of more than 50%
of the Common Stock or the voting power of the Corporation. Notwithstanding the
foregoing, in the event of a deemed liquidation, dissolution or winding up
pursuant to this Section 5(c) as a result of a
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transaction in which substantially all of the consideration received by the
Corporation's stockholders is capital stock of the surviving corporation or the
parent thereof (such issuer, the "New Issuer"), if the Board of Directors of the
surviving corporation determines that the payment of cash pursuant to Section
5(a) would have a material adverse effect on the surviving corporation, the
parent thereof or the transaction, each holder of the Series A Preferred Stock
shall have the right to receive, in exchange for its shares of Series A
Preferred Stock and in lieu of payments otherwise payable pursuant to Sections
5(a) and 5(b), at its election, either (x) capital stock in such amounts and in
such form as would have been received had such holder converted all of its
Series A Preferred Stock immediately prior to such transaction or (y) securities
of the New Issuer equivalent in rights and preferences to the Series A Preferred
Stock.
6. REDEMPTION. (a) The Series A Preferred Stock shall not be
redeemable by the Corporation prior to the First Call Date. All shares of Series
A Preferred Stock shall be redeemable at the option of the Corporation to the
extent the Corporation shall have funds legally available for such payment, at
any time in whole or from time to time in part, (i) on and after the Second Call
Date, or, (ii) if the Minimum Call Stock Price Test has been satisfied, on and
after the First Call Date, at a redemption price per share equal to the
Liquidation Preference, plus accrued and unpaid dividends thereon to the date
fixed for redemption.
(b) Shares of Series A Preferred Stock which have been issued
and reacquired in any manner, including shares purchased or redeemed, shall
(upon compliance with any applicable provisions of the laws of the State of
Delaware) have the status of authorized and unissued shares of the class of
Preferred Stock undesignated as to series and may be redesignated and reissued
as part of any series of the Preferred Stock; PROVIDED that no such issued and
reacquired shares of Series A Preferred Stock shall be reissued or sold as
Series A Preferred Stock.
7. PROCEDURE FOR REDEMPTION. (a) In the event that fewer than all
the outstanding shares of Series A Preferred Stock are to be redeemed, the
number of shares to be redeemed shall be determined by the Board of Directors
and the shares to be redeemed shall be selected by lot or pro rata (with any
fractional shares being rounded to the nearest whole share) as may be determined
by the Board of Directors.
(b) In the event the Corporation shall redeem shares of Series
A Preferred Stock, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 days nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed at such
holder's address as the same appears on the stock register of the Corporation;
PROVIDED that neither the failure to give such notice nor any defect therein
shall affect the validity of the giving of notice for the redemption of any
share of Series
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A Preferred Stock to be redeemed except as to the holder to whom the Corporation
has failed to give said notice or except as to the holder whose notice was
defective. Each such notice shall state: (i) the redemption date (which shall be
a date on or after the First Call Date); (ii) the number of shares of Series A
Preferred Stock to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of shares to be redeemed from such holder
(which if less than all of the shares outstanding, must be on a pro-rata basis);
(iii) the redemption price formula; (iv) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price; and
(v) that dividends on the shares to be redeemed will cease to accrue on such
redemption date.
(c) Notice having been mailed as aforesaid, from and after the
redemption date, dividends on the shares of Series A Preferred Stock so called
for redemption shall cease to accrue, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation shall so
require and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price as aforesaid. In case fewer than all the
shares represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares without cost to the holder thereof.
8. CONVERSION. (a) Subject to the provisions of this paragraph 8,
the holders of the shares of Series A Preferred Stock shall have the right, at
any time and from time to time, at such holder's option, to convert any or all
outstanding shares (and fractional shares) of Series A Preferred Stock, in whole
or in part, into fully paid and non-assessable shares of Common Stock. The
number of shares of Common Stock deliverable upon conversion of a share of
Series A Preferred Stock as of any date shall be an amount equal to the
Liquidation Preference divided by the Adjusted Conversion Price. Notwithstanding
any call for redemption pursuant to paragraph 6, the right to convert shares so
called for redemption shall terminate at the close of business on the date
immediately preceding the date fixed for such redemption unless the Corporation
shall default in making payment of the amount payable upon such redemption.
(b) (i) In order to exercise the conversion privilege, the
holder of the shares of Series A Preferred Stock to be converted shall
surrender the certificate representing such shares at the office of the
Corporation, with a written notice of election to convert completed and
signed, specifying the number of shares to be converted. Unless the
shares issuable on conversion are to be issued in the same name as the
name in which such shares of Series A Preferred Stock are registered,
each share
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surrendered for conversion shall be accompanied by instruments of
transfer, in form satisfactory to the Corporation, duly executed by
the holder or the holder's duly authorized attorney and an amount
sufficient to pay any transfer or similar tax.
(ii) As promptly as practicable after the surrender
by a holder of certificates for shares of Series A Preferred
Stock as aforesaid, the Corporation shall issue and shall
deliver to such holder, or on the holder's written order to
the holder's transferee, (w) a certificate or certificates for
the whole number of shares of Common Stock issuable upon the
conversion of such shares in accordance with the provisions of
this paragraph 8, (x) any cash adjustment required pursuant to
paragraph 8(f) and (y) in the event of a conversion in part, a
certificate or certificates for the whole number of shares of
Series A Preferred Stock not being so converted.
(iii) Each conversion shall be deemed to have been
effected immediately prior to the close of business on the
date on which the certificates for shares of Series A
Preferred Stock shall have been surrendered and such notice
received by the Corporation as aforesaid, and the person in
whose name or names any certificate or certificates for shares
of Common Stock shall be issuable upon such conversion shall
be deemed to have become the holder of record of the shares of
Common Stock represented thereby at such time on such date and
such conversion shall be into a number of shares of Common
Stock equal to the product of the number of shares of Series A
Preferred Stock surrendered times the Liquidation Preference
divided by the Adjusted Conversion Price in effect at such
time on such date. All shares of Common Stock delivered upon
conversion of the Series A Preferred Stock will upon delivery
be duly and validly issued and fully paid and non-assessable,
free of all liens and charges and not subject to any
preemptive rights. Upon the surrender of certificates
representing shares of Series A Preferred Stock, such shares
shall no longer be deemed to be outstanding and all rights of
a holder with respect to such shares surrendered for
conversion shall immediately terminate except the right to
receive the Common Stock and other amounts payable pursuant to
this paragraph 8 and a certificate or certificates
representing shares of Series A Preferred Stock not converted.
(c) (i) Upon delivery to the Corporation by a holder of
shares of Series A Preferred Stock of a notice of election to convert,
the
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right of the Corporation to redeem such shares of Series A Preferred
Stock shall terminate, regardless of whether a notice of redemption
has been mailed as aforesaid.
(ii) Except as provided above and in paragraph 8(g),
the Corporation shall make no payment or adjustment for
accrued and unpaid dividends on shares of Series A Preferred
Stock, whether or not in arrears, on conversion of such shares
or for dividends in cash on the shares of Common Stock issued
upon such conversion.
(d) (i) The Corporation covenants that it will at all
times reserve and keep available, free from preemptive rights, such
number of its authorized but unissued shares of Common Stock as shall
be required for the purpose of effecting conversions of the Series A
Preferred Stock.
(ii) Prior to the delivery of any securities which
the Corporation shall be obligated to deliver upon conversion
of the Series A Preferred Stock, the Corporation shall comply
with all applicable federal and state laws and regulations
which require action to be taken by the Corporation.
(e) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on conversion of the Series A Preferred Stock pursuant
hereto; PROVIDED that the Corporation shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issue or delivery of
shares of Common Stock in a name other than that of the holder of the Series A
Preferred Stock to be converted and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery has paid to the
Corporation the amount of any such tax or has established, to the satisfaction
of the Corporation, that such tax has been paid.
(f) In connection with the conversion of any shares of Series
A Preferred Stock, no fractions of shares of Common Stock shall be issued, but
in lieu thereof the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to such fractional interest multiplied by
the Market Price per share of Common Stock on the business day on which such
shares of Series A Preferred Stock are deemed to have been converted.
(g) (i) (i) In case the Corporation shall at any time after
the date of issue of the Series A Preferred Stock (A) declare a
dividend or make a distribution on Common Stock payable in Common
Stock, (B) subdivide or split the outstanding Common Stock, (C) combine
or reclassify the outstanding Common Stock into a smaller number of
shares, (D) issue any shares of its capital stock in a reclassification
of Common
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Stock (including any such reclassification in connection with a
consolidation or merger in which the Corporation is the continuing
corporation), or (E) consolidate with, or merge with or into, any other
Person, the Conversion Ratio in effect at the time of the record date
for such dividend or distribution or of the effective date of such
subdivision, split, combination, consolidation, merger or
reclassification shall be proportionately adjusted so that the
conversion of the Series A Preferred Stock after such time shall
entitle the holder to receive the aggregate number of shares of Common
Stock or other securities of the Corporation (or shares of any security
into which such shares of Common Stock have been combined,
consolidated, merged or reclassified pursuant to clause 8(g)(i)(C),
8(g)(i)(D) or 8(g)(i)(E) above) which, if this Series A Preferred Stock
had been converted immediately prior to such time, such holder would
have owned upon such conversion and been entitled to receive by virtue
of such dividend, distribution, subdivision, split, combination,
consolidation, merger or reclassification, assuming such holder of
Common Stock of the Corporation (x) is not a Person with which the
Corporation consolidated or into which the Corporation merged or which
merged into the Corporation or to which such recapitalization, sale or
transfer was made, as the case may be ("CONSTITUENT PERSON"), or an
affiliate of a constituent person and (y) failed to exercise any rights
of election as to the kind or amount of securities, cash and other
property receivable upon such reclassification, change, consolidation,
merger, recapitalization, sale or transfer (PROVIDED, that if the kind
or amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, recapitalization, sale
or transfer is not the same for each share of Common Stock of the
Corporation held immediately prior to such reclassification, change,
consolidation, merger, recapitalization, sale or transfer by other than
a constituent person or an affiliate thereof and in respect of which
such rights of election shall not have been exercised ("NON-ELECTING
SHARE"), then for the purpose of this subparagraph 8(g) the kind and
amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, recapitalization, sale
or transfer by each non-electing share shall be deemed to be the kind
and amount so receivable per share by a plurality of the non-electing
shares). Such adjustment shall be made successively whenever any event
listed above shall occur.
(ii) In case the Corporation shall issue or sell any
Common Stock (other than Common Stock issued (A) pursuant to
the Corporation's stock option plans or pursuant to any other
Common Stock related employee compensation plans of the
Corporation approved by the Corporation's Board of Directors
or its predecessors (including such plans under Section 423 of
the
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Internal Revenue Code of 1986, as amended) (collectively,
"STOCK PLANS") or pursuant to obligations of the Corporation
existing prior to the Issue Date to issue shares of Common
Stock, other than obligations under Employee Retention
Agreements (as defined below)("EXISTING OBLIGATIONS") or (B)
upon exercise or conversion of any security the issuance of
which caused an adjustment under paragraphs 8(g)(iii) or
8(g)(iv) hereof) without consideration or for a consideration
per share less than the then Trigger Value, the Conversion
Ratio to be in effect after such issuance or sale shall be
determined by multiplying the Conversion Ratio in effect
immediately prior to such issuance or sale by a fraction, (1)
the numerator of which shall be the product of (I) the
aggregate number of shares of Common Stock outstanding
immediately after such issuance or sale plus the number of
shares of Common Stock into which the outstanding shares of
Series A Preferred Stock and Series B Preferred Stock are
convertible (assuming the Series B Preferred Stock were
convertible into Common Stock at the same rate as the Series A
Preferred Stock) immediately prior to such issuance or sale
(the "CONVERT TOTAL") and (II) the Current Valuation Per
Common Share (as defined in paragraph 8(g)(vi)) immediately
prior to such issuance or sale and (2) the denominator of
which shall be the sum of (x) the product of (I) the number of
shares of Common Stock outstanding immediately prior to the
time of such issuance or sale plus the Convert Total and (II)
the Current Valuation Per Common Share immediately prior to
such issuance or sale and (y) the aggregate consideration, if
any, to be received by the Corporation upon such issuance or
sale, but in no event will such fraction be less than one. In
case any portion of the consideration to be received by the
Corporation shall be in a form other than cash, the fair
market value of such noncash consideration shall be utilized
in the foregoing computation. Such fair market value shall be
determined by the Board of Directors of the Corporation;
PROVIDED that if the holders of a majority of the Series A
Preferred Stock shall object to any such determination, the
Board of Directors shall retain an independent appraiser
reasonably satisfactory to such holders to determine such fair
market value. The holders shall be notified promptly of any
consideration other than cash to be received by the
Corporation and furnished with a description of the
consideration and the fair market value thereof, as determined
by the Board of Directors.
(iii) In case the Corporation shall fix a record date
for the issuance of rights, options or warrants to the holders
of its
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Common Stock or other securities entitling such holders to
subscribe for or purchase shares of Common Stock (or
securities convertible into shares of Common Stock) at a price
per share of Common Stock (or having a conversion price per
share of Common Stock, if a security convertible into shares
of Common Stock) less than the then Trigger Value on such
record date, the maximum number of shares of Common Stock
issuable upon exercise of such rights, options or warrants (or
conversion of such convertible securities) shall be deemed to
have been issued and outstanding as of such record date and
the Conversion Ratio shall be adjusted pursuant to paragraph
8(g)(ii) hereof, as though such maximum number of shares of
Common Stock had been so issued for an aggregate consideration
payable by the holders of such rights, options, warrants or
convertible securities prior to their receipt of such shares
of Common Stock. In case any portion of such consideration
shall be in a form other than cash, the fair market value of
such noncash consideration shall be determined as set forth in
paragraph 8(g)(ii) hereof. Such adjustment shall be made
successively whenever such record date is fixed; and in the
event that such rights, options or warrants are not so issued
or expire unexercised, or in the event of a change in the
number of shares of Common Stock to which the holders of such
rights, options or warrants are entitled (other than pursuant
to adjustment provisions therein comparable to those contained
in this paragraph 8(g)), the Conversion Ratio shall again be
adjusted to be the Conversion Ratio which would then be in
effect if such record date had not been fixed, in the former
event, or the Conversion Ratio which would then be in effect
if such holder had initially been entitled to such changed
number of shares of Common Stock, in the latter event.
(iv) In case the Corporation shall issue rights,
options (other than options issued pursuant to a Stock Plan)
or warrants entitling the holders thereof to subscribe for or
purchase Common Stock (or securities convertible into shares
of Common Stock) or shall issue convertible securities, and
the price per share of Common Stock of such rights, options,
warrants or convertible securities (including, in the case of
rights, options or warrants, the price at which they may be
exercised) is less than the then Trigger Value, the maximum
number of shares of Common Stock issuable upon exercise of
such rights, options or warrants or upon conversion of such
convertible securities shall be deemed to have been issued and
outstanding as of the date of such sale or issuance, and the
Conversion Ratio shall be adjusted pursuant to paragraph
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8(g)(ii) hereof as though such maximum number of shares of
Common Stock had been so issued for an aggregate consideration
equal to the aggregate consideration paid for such rights,
options, warrants or convertible securities and the aggregate
consideration payable by the holders of such rights, options,
warrants or convertible securities prior to their receipt of
such shares of Common Stock. In case any portion of such
consideration shall be in a form other than cash, the fair
market value of such noncash consideration shall be determined
as set forth in paragraph 8(g)(ii) hereof. Such adjustment
shall be made successively whenever such rights, options,
warrants or convertible securities are issued; and in the
event that such rights, options or warrants expire
unexercised, or in the event of a change in the number of
shares of Common Stock to which the holders of such rights,
options, warrants or convertible securities are entitled
(other than pursuant to adjustment provisions therein
comparable to those contained in this paragraph 8(g)), the
Conversion Ratio shall again be adjusted to be the Conversion
Ratio which would then be in effect if such rights, options,
warrants or convertible securities had not been issued, in the
former event, or the Conversion Ratio which would then be in
effect if such holders had initially been entitled to such
changed number of shares of Common Stock, in the latter event.
No adjustment of the Conversion Ratio shall be made pursuant
to this paragraph 8(g)(iv) to the extent that the Conversion
Ratio shall have been adjusted pursuant to paragraph 8(g)(iii)
upon the setting of any record date relating to such rights,
options, warrants or convertible securities and such
adjustment fully reflects the number of shares of Common Stock
to which the holders of such rights, options, warrants or
convertible securities are entitled and the price payable
therefor.
(v) In case the Corporation shall fix a record date
for the making of a distribution to holders of Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Corporation is the
continuing corporation) of evidences of indebtedness, assets
or other property (other than dividends payable in Common
Stock or rights, options or warrants referred to in, and for
which an adjustment is made pursuant to, paragraph 8(g)(iii)
hereof), the Conversion Ratio to be in effect after such
record date shall be determined by multiplying the Conversion
Ratio in effect immediately prior to such record date by a
fraction, (A) the numerator of which shall be the Current
Valuation Per Common Share on such record date, and (B) the
denominator of which shall be the Current Valuation Per Common
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Share on such record date, less the fair market value
(determined as set forth in paragraph 8(g)(ii) hereof) of the
portion of the assets, other property or evidence of
indebtedness so to be distributed which is applicable to one
share of Common Stock. Such adjustments shall be made
successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Conversion
Ratio shall again be adjusted to be the Conversion Ratio which
would then be in effect if such record date had not been
fixed.
(vi) In the event that the Corporation, directly or
indirectly, pays consideration of more than $25 million, in
the aggregate, in excess of any insurance coverage or other
right of recovery or set-off against any third party, to the
extent such right of recovery or set-off has been finally
agreed to in a binding settlement or finally determined by a
court of competent jurisdiction without a right to appeal
(such consideration, an "EXCESS PAYMENT"), in settlement or
payment of any or all damages, losses, liabilities, expenses
or claims of any kind (including, without limitation, expenses
of investigation and attorney's fees and expenses) ("DAMAGES")
relating to, arising under or resulting from any action, suit
or proceeding brought by any party other than a holder or
purchaser of the Series A Preferred Stock or Series B
Preferred Stock and relating to or arising out of a
misstatement or alleged misstatement of a material fact, or
omission or alleged omission of a material fact (including,
without limitation, any claim pursuant to Rule 10b-5 under the
Securities Exchange Act of 1934 or pursuant to any comparable
state law or regulation) that relates to events or
circumstances occurring in whole or in part on or prior to
December 13, 2000 and was made in connection with the purchase
of, failure to purchase, sale of, failure to sell, conversion
of, failure to convert, redemption of, failure to redeem,
exchange of or failure to exchange the Corporation's or its
Affiliates' (or any of its or their predecessor or successor
entity's) securities, such Excess Payment shall be deemed an
issuance of stock for which the Conversion Ratio shall be
subject to adjustment pursuant to paragraph 8(g)(ii)
(regardless of whether the Excess Payment is actually paid in
stock or is paid in cash or any other asset or security), and
the aggregate consideration received by the Corporation in
connection with such issuance shall be deemed to be $0.00. Any
Excess Payment made in the form of cash or any other asset or
security shall be treated for purposes of the Section 8(g)(ii)
computation as a deemed issuance of stock in which the number
of shares issued equals the quotient of the fair
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market value of the Excess Payment divided by the Current
Valuation Per Common Share. The adjustment of the Conversion
Ratio pursuant to this Section 8(g)(vi) shall be the sole
remedy of a holder of Series A Preferred Stock relating to an
Excess Payment in respect of such Series A Preferred Stock.
(vii) For purposes of any computation under
paragraphs 8(g)(ii), 8(g)(iii), 8(g)(iv), 8(g)(v) or 8(g)(vi)
hereof, on any determination date, if the computation is being
made with respect to any issuance of stock in connection with
any agreement (including any amendment, modification or
replacement thereof whenever made) (an "EMPLOYEE RETENTION
AGREEMENT") referred to in paragraph 7 of Section 3.5(b) of
the Disclosure Letter, or any substantially similar agreement
(including any amendment, modification or replacement thereof)
entered into by the Corporation, its predecessors or
successors or its or their respective Affiliates on or prior
to December 13, 2000, obligating the Corporation to deliver
Common Stock to any of the Corporation's or its Affiliates'
(or any of its or their predecessor or successor entity's)
current or former employees or consultants in respect of an
agreement by such employee or consultant to remain in the
employ of, or as a consultant to, the Corporation following an
acquisition transaction, then both the "TRIGGER VALUE" and the
"CURRENT VALUATION PER COMMON SHARE" shall be the greater of
the 20 Day Market Price and $4.00 (as adjusted for any stock
splits, stock dividends, recapitalization or the like) and the
Corporation will be deemed to have received aggregate
consideration equal to the product of the number of shares of
Common Stock issued and the Market Price. In the event that
the Corporation satisfies an obligation to deliver stock
pursuant to an Employee Retention Agreement by delivering cash
or cash equivalents, and the Corporation has sold stock (or
any securities issuable upon conversion or exchange
thereof)(other than the issuance by the Corporation of the
Series A Preferred Stock or the Series B Preferred Stock (or
any securities issuable upon conversion or exchange thereof)
or any issuance pursuant to a Stock Plan or an Existing
Obligation) within the six months prior to the date of such
cash delivery and as to which less than all of the proceeds
have previously been applied pursuant to this Section
8(g)(vii) then, to the extent of the proceeds of such
offering(s) (the "SUBSTITUTE OFFERING(S)") which have not
previously been applied for purposes of this Section (which
shall be applied on a LIFO basis with the proceeds of the most
recent offering being applied first), the Corporation shall be
deemed to have issued, in
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connection with such Employee Retention Agreement, the number
of shares of Common Stock in exchange for which the
Corporation received proceeds in an amount equal to the cash
delivered pursuant to such Employee Retention Agreement, and
the Conversion Ratio will be adjusted for such issuance
pursuant to this Section 8(g)(vii) as if such adjustment had
occurred at the time of the issuance by the Corporation of
such shares and no prior adjustment (if any) with respect to
such issuance had occurred. If the Conversion Ratio had
previously been adjusted as a consequence of such Substitute
Offering, the adjustment of the Conversion Ratio under this
Section shall be reduced to the extent necessary so that the
adjustments shall not be duplicative. For purposes of any
computation under paragraphs 8(g)(ii), 8(g)(iii), 8(g)(iv),
8(g)(v) or 8(g)(vi) hereof, on any determination date, if the
computation is not being made with respect to any issuance of
stock in connection with an Employee Retention Agreement as
provided above, the "CURRENT VALUATION PER COMMON SHARE" shall
be the greater of the 20 Day Market Price and the Adjusted
Conversion Price, and the "TRIGGER VALUE" shall be the 20 Day
Market Price, and the aggregate consideration received by the
Corporation shall equal the fair market value of any
consideration received by the Corporation for such issuance.
(viii) No adjustment to the Conversion Ratio pursuant
to paragraphs 8(g)(ii), 8(g)(iii), 8(g)(iv) and 8(g)(v) above
shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Conversion Ratio;
PROVIDED HOWEVER, that any adjustments which by reason of this
paragraph 8(g)(viii) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations under this paragraph 8(g) shall
be made to the nearest four decimal points.
(ix) In the event that, at any time as a result of
the provisions of this paragraph 8(g), the holder of this
Series A Preferred Stock upon subsequent conversion shall
become entitled to receive any shares of capital stock of the
Corporation other than Common Stock, the number of such other
shares so receivable upon conversion of this Series A
Preferred Stock shall thereafter be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions contained herein.
(h) All adjustments pursuant to this paragraph 8 shall be
notified to the holders of Series A Preferred Stock and Series B Preferred Stock
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and such notice shall be accompanied by a Schedule of Computations of the
adjustments.
9. VOTING RIGHTS. (a) (a) Except as otherwise provided by applicable
law, the holders of the shares of Series A Preferred Stock (i) shall be entitled
to vote with the holders of the Common Stock on all matters submitted for a vote
of holders of Common Stock, (ii) shall be entitled to a number of votes equal to
the number of votes to which shares of Common Stock issuable upon conversion of
such shares of Series A Preferred Stock would have been entitled if such shares
of Common Stock had been outstanding at the time of the applicable vote and
related record date and (iii) shall be entitled to notice of any stockholders'
meeting in accordance with the certificate of incorporation and bylaws of the
Corporation. If the Corporation shall at any time after the date of issuance of
the Series A Preferred Stock pay any dividend on Common Stock payable in shares
of Common Stock or effect a subdivision or combination of the outstanding shares
of Common Stock (by reclassification or otherwise) into a greater or lesser
number of shares of Common Stock, then in each such case the number of votes to
which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under clause 9(a)(ii) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction of which the numerator is the
number of shares of Common Stock outstanding immediately after such event and of
which the denominator is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) So long as any shares of Series A Preferred Stock are
outstanding, the Corporation shall not, without the written consent or
affirmative vote at a meeting called for that purpose of the holders of a
majority of the shares of Series A Preferred Stock then outstanding, amend,
alter or repeal, whether by merger, consolidation, combination, reclassification
or otherwise, the Amended and Restated Certificate of Incorporation or By-laws
of the Corporation or of any provision thereof (including the adoption of a new
provision thereof) which would result in an alteration or circumvention of the
voting powers, designation and preferences and relative participating, optional
and other special rights, and qualifications, limitations and restrictions of
the Series A Preferred Stock; PROVIDED that any such amendment or alteration
that changes the dividend payable on, or the liquidation preference or the par
value of, the Series A Preferred Stock shall require the affirmative vote at a
meeting of holders of Series A Preferred Stock duly called for such purpose, or
the written consent, of the holder of each share of Series A Preferred Stock.
(c) The Corporation shall not, without first obtaining the
approval of the holders of not less than a majority of the total number of
shares of Series A Preferred Stock then outstanding:
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(i) authorize, create or issue shares of any class
or series of stock having any preference or priority superior
to or on a parity with any such preference or priority of the
Series A Preferred Stock;
(ii) take any step resulting in the redemption of
shares of Parity Securities or Junior Securities, except as
set forth in paragraphs 4(c) and 4(d) of this Certificate of
Designations; or
(iii) amend this paragraph 9.
(d) The consent or votes required in paragraph 9(b) and 9(c)
above shall be in addition to any approval of stockholders of the Corporation
which may be required by law or pursuant to any provision of the Corporation's
certificate of incorporation or bylaws, which approval shall be obtained by vote
of the stockholders of the Corporation in the manner provided in paragraph 9(a)
above.
(e) On each of the Issue Date and the date of a Stockholder
Approval Event, if any, the number of directors then constituting the Board of
Directors shall be increased by one and the holders of shares of Series A
Preferred Stock, voting as a single class, shall be entitled to elect one, or if
a Stockholder Approval Event has occurred, two directors to serve on the Board
of Directors at any annual meeting of stockholders or special meeting held in
place thereof, or at a special meeting of the holders of the Series A Preferred
Stock called as hereinafter provided. Whenever a majority of the shares of
Series A Preferred Stock issued on the Issue Date have been converted into
Common Stock pursuant to this Certificate of Designation or have been
transferred by the initial holder thereof to a Person that is not an Affiliate
of the initial holder, then the right of the holders of the Series A Preferred
Stock to elect such additional director(s) shall cease, and the term of office
of any person elected as director by the holders of the Series A Preferred Stock
shall forthwith terminate and the number of the Board of Directors shall be
reduced accordingly. At any time after voting power to elect a director shall
have become vested and be continuing in the holders of Series A Preferred Stock
pursuant to this paragraph, or if a vacancy shall exist in the office of a
director elected by the holders of Series A Preferred Stock, a proper officer of
the Corporation may, and upon the written request of the holders of record of at
least twenty-five percent (25%) of the shares of Series A Preferred Stock then
outstanding addressed to the Secretary of the Corporation shall, call a special
meeting of the holders of Series A Preferred Stock, for the purpose of electing
the director which such holders are entitled to elect. If such meeting shall not
be called by a proper officer of the Corporation within twenty (20) days after
personal service of said written request upon the Secretary of the Corporation,
or within twenty (20) days after mailing the same within the United States by
certified mail, addressed to the Secretary of the Corporation at its principal
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executive offices, then the holders of at least twenty-five percent (25%) of the
outstanding shares of Series A Preferred Stock may designate in writing one of
their number to call such meeting at the expense of the Corporation, and such
meeting may be called by the person so designated upon the notice required for
the annual meeting of stockholders of the Corporation and shall be held at the
place for holding the annual meetings of stockholders. Any holder of Series A
Preferred Stock so designated shall have, and the Corporation shall provide,
access to the lists of stockholders to be called pursuant to the provisions
hereof.
10. RECLASSIFICATION, SUBDIVISION OR COMBINATION. The Series A
Preferred Stock may not be reclassified, subdivided or combined unless the
Series B Preferred Stock is reclassified, subdivided or combined (as the case
may be) simultaneously and in the same proportion.
11. REPORTS. The Corporation shall mail to all holders of Series A
Preferred Stock those reports, proxy statements and other materials that it
mails to all of its holders of Common Stock. In the event the Corporation is not
required to file quarterly and annual financial reports with the Securities and
Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act,
the Corporation will furnish the holders of the Series A Preferred Stock with
reports containing the same information as would be required in such reports.
12. QUOTATION. So long as any of the Series A Preferred Stock is
outstanding, the Corporation shall use commercially reasonable efforts to
maintain the quotation of the Common Stock on the Nasdaq National Market.
13. GENERAL PROVISIONS.
(a) The headings of the paragraphs, subparagraphs, clauses and
subclauses of this Certificate of Designations are for convenience of reference
only and shall not define, limit or affect any of the provisions hereof.
(b) Each holder of Series A Preferred Stock, by acceptance
thereof, acknowledges and agrees that payments of dividends, interest, premium
and principal on, and exchange, redemption and repurchase of, such securities by
the Corporation are subject to restrictions on the Corporation contained in
certain credit and financing agreements.
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IN WITNESS WHEREOF, marchFIRST, Inc. has caused this
Certificate of Designations to be signed and attested by the undersigned this __
day of ________, ____.
MARCHFIRST, INC.,
By:
---------------------
Name:
Title:
ATTEST:
-----------------------------------
Name:
Assistant Secretary
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