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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): February 18, 2000
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WEBB INTERACTIVE SERVICES, INC.
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(Exact name of registrant as specified in its charter)
Colorado
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(State or other jurisdiction of incorporation)
0-28462 84-1293864
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(Commission File Number) (IRS Employer Identification No.)
1800 Glenarm Place, Suite 700, Denver, CO 80202
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 296-9200
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N/A
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(Former name or former address, if changed since last report)
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Item 5. OTHER EVENTS.
On February 18, 2000, we completed the sale of 12,500 shares of our
Series B convertible preferred stock to Marshall Capital Management, Inc.
("Marshall Capital") and Castle Creek Technology Partners LLC ("Castle Creek").
The preferred stock and warrants issued in connection with the new financing
were issued without registration pursuant to the Securities Act of 1933 in
reliance upon the exemption therefrom provided in Regulation D of such Act.
PaineWebber Incorporated received a $750,000 fee as compensation for serving as
placement agent and advisor on the transaction.
As a result of the new financing, certain amendments to our convertible
note with Castle Creek agreed to on December 18, 1999, as described in our
current report on Form 8-K filed with the Commission on January 5, 2000, were
made effective. For additional information regarding the terms of the
convertible note and warrants issued in connection therewith, reference is made
our current report on Form 8-K filed with the Commission on September 2, 1999
and to our registration statement on Form S-3, file number 333-87887.
Series B Preferred Convertible Stock. On February 18, 2000, we completed
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the sale to Marshall Capital and Castle Creek of 12,500 shares of our Series B
convertible preferred stock. The purchase price for the preferred stock was
$1,000 per share for an aggregate purchase price of $12.5 million. The preferred
stock is convertible into shares of our common stock, initially at a conversion
price of $20.00. The conversion rate for the preferred stock is subject to
potential adjustments, but may not be less than $8.00 per share, subject to
anti-dilution and other conditions.
The purchasers were also issued five-year warrants representing the right
to purchase an aggregate of 343,750 shares of our common stock at an exercise
price of $20.20 per share. The exercise price for the warrants is subject to
adjustment based upon future market prices for our common stock.
In connection with this transaction, we expect to incur significant non-
cash charges which could be as much as the purchase price for the preferred
stock. The common stock issuable upon exercise of the warrants and the
conversion of the preferred stock is subject to registration rights.
The foregoing is a summary only and it is not intended to be a complete
description of the transaction, and it is qualified in its entirety by Exhibit
10.5 filed with our current report on Form 8-K filed with the Commission on
January 5, 2000 and Exhibit 10.2 filed herewith.
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements.
None
(c) Exhibits:
10.1 Securities Purchase Agreement dated December 31, 1999, between
Webb, Marshall Capital and Castle Creek. Included as exhibits to
the Securities Purchase Agreement are the form of Warrant and the
Registration Rights Agreement (1)
10.2 Articles of Amendment setting forth the terms of the Series B
Convertible Preferred Stock*
10.3 Promissory Note dated August 25, 1999 issued by Webb to Castle
Creek (2)
10.4 First Amendment dated December 18, 1999 to Promissory Note dated
August 25, 1999 issued by Webb to Castle Creek (3)
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* Filed herewith
(1) Filed with Webb's current report on Form 8-K filed with the
Commission on January 5, 2000.
(2) Filed with Webb's current report on Form 8-K filed with the
Commission on September 2, 1999.
(3) Filed with amendment No. 2 to Webb's registration statement on
Form S-3, File No. 333-87887.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: February 25, 2000 WEBB INTERACTIVE SERVICES, INC.
By: /s/ Lindley S. Branson
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Lindley S. Branson
Its: General Counsel
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Exhibit 10.2
ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION
of
WEBB INTERACTIVE SERVICES, INC.
Pursuant to Section 7-106-102
of the Colorado Business Corporation Act
WEBB INTERACTIVE SERVICES, INC., a Colorado corporation (the
"Corporation"), hereby amends its Articles of Incorporation by adopting these
Articles of Amendment ("Articles of Amendment") pursuant to Section 7-106-102 of
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the Colorado Business Corporation Act to authorize a series of the Corporation's
previously authorized Preferred Stock, no par value (the "Preferred Stock"), as
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follows:
1. The name of the Corporation is WEBB INTERACTIVE SERVICES, INC.
2. The Corporation's Board of Directors duly adopted these Articles
of Amendment on January 13, 2000.
3. These Articles of Amendment hereby amend Article IV of the
Corporation's Articles of Incorporation by adding the following language at the
end of such Article as follows:
[9]. SERIES B CONVERTIBLE PREFERRED STOCK
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1. DESIGNATION AND AMOUNT.
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The designation of this series, which consists of twelve thousand five
hundred (12,500) shares of Preferred Stock, is the "Series B Convertible
Preferred Stock" (the "Series B Preferred Stock") and the face amount of each
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share of Series B Preferred Stock (each, a "Preferred Share" and collectively,
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the "Preferred Shares") shall be One Thousand Dollars ($1,000) per Preferred
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Share (the "Stated Value"). The date on which the Preferred Shares are issued
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and sold, together with the related warrants (the "Warrants"), pursuant to the
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Securities Purchase Agreement, dated December 31, 1999, between the Corporation
and the Purchasers named therein (the "Securities Purchase Agreement") is
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referred to herein as the "Issue Date". The Corporation has agreed to register
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the shares of Corporation's Common Stock, no par value (the "Common Stock"),
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pursuant
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to a Registration Rights Agreement (the "Registration Rights Agreement"). The
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holders of Preferred Shares are each referred to as a "Holder" and,
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collectively, as the "Holders".
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2. DIVIDENDS.
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The Series B Preferred Stock will not bear dividends.
3. PRIORITY.
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(a) Payment upon Dissolution.
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(i) Upon the occurrence of (x) any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, commenced by the Corporation or by its
creditors, as such, or relating to its assets or (y) the dissolution or other
winding up of the Corporation whether total or partial, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy proceedings,
or (z) any assignment for the benefit of creditors or any marshalling of the
material assets or material liabilities of the Corporation (each, a "Liquidation
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Event"), no distribution shall be made to the holders of any shares of Junior
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Securities (as defined below) unless, following the payment of preferential
amounts on all Senior Securities (as defined below), each Holder shall have
received the Liquidation Preference (as defined below) with respect to each
Preferred Share then held by such Holder. In the event that upon the occurrence
of a Liquidation Event, and following the payment of preferential amounts on all
Senior Securities (as defined below), the assets available for distribution to
the Holders and the holders of Pari Passu Securities are insufficient to pay the
Liquidation Preference with respect to all of the outstanding Preferred Shares
and the preferential amounts payable to such holders, the entire assets of the
Corporation shall be distributed ratably among the Preferred Shares and the
shares of Pari Passu Securities in proportion to the ratio that the preferential
amount payable on each such share (which shall be the Liquidation Preference in
the case of a Preferred Share) bears to the aggregate preferential amount
payable on all such shares.
(ii) The "Liquidation Preference" with respect to a Preferred Share
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shall mean an amount equal to the Stated Value of such Preferred Share. "Junior
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Securities" shall mean the Common Stock and all other capital stock of the
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Corporation that are not Pari Passu Securities or Senior Securities. "Pari
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Passu Securities" shall mean any securities ranking by their terms pari passu
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with the Series B Preferred Stock in respect of redemption or distribution upon
liquidation. "Senior Securities" shall mean (i) any debt issued or assumed by
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the Corporation and (ii) any securities of the Corporation which by their terms
have a preference over the Series B Preferred Stock in respect of redemption or
distribution upon liquidation.
4. CONVERSION.
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(a) Right to Convert. Each Holder shall have the right to convert, at any
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time and from time to time after the Issue Date, all or any part of the
Preferred Shares held by such Holder into
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such number of fully paid and non-assessable shares ("Conversion Shares") of the
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Common Stock as is determined in accordance with the terms hereof (a
"Conversion").
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(b) Conversion Notice. In order to convert Preferred Shares, a Holder
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shall send to the Corporation by facsimile transmission, at any time prior to
11:59 p.m., eastern time, on the date on which such Holder wishes to effect such
Conversion (the "Conversion Date"), (i) a notice of conversion in substantially
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the form of Exhibit A hereto (a "Conversion Notice") stating the number of
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Preferred Shares to be converted, the applicable Conversion Price (as defined
below) and a calculation of the number of shares of Common Stock issuable upon
such Conversion and (ii) a copy of the certificate or certificates representing
the Preferred Shares being converted. The Holder shall thereafter send the
original of the Conversion Notice and of such certificate or certificates to the
Corporation. The Corporation shall issue a new certificate for Preferred Shares
in the event that less than all of the Preferred Shares represented by a
certificate delivered to the Corporation in connection with a Conversion are
converted. Except as otherwise provided herein, upon delivery of a Conversion
Notice by a Holder in accordance with the terms hereof, such Holder shall, as of
the applicable Conversion Date, be deemed for all purposes to be record owner of
the Common Stock to which such Conversion Notice relates. In the case of a
dispute between the Corporation and a Holder as to the calculation of the
Conversion Price or the number of Conversion Shares issuable upon a Conversion
(including without limitation the calculation of any adjustment to the
Conversion Price pursuant to Section 6 below), the Corporation shall issue to
such Holder the number of Conversion Shares that are not disputed within the
time periods specified in paragraph 4(e) below and shall submit the disputed
calculations to its independent accountant within two (2) Business Days of
receipt of such Holder's Conversion Notice. The Corporation shall cause such
accountant to calculate the Conversion Price as provided herein and to notify
the Corporation and such Holder of the results in writing no later than three
(3) Business Days following the Corporation's receipt of such Holder's
Conversion Notice (such 3/rd/ Business Day being referred to herein as the
"Disputed Share Calculation Date"). Such accountant's calculation shall be
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deemed conclusive absent manifest error. The fees of any such accountant shall
be borne by the party whose calculations were most at variance with those of
such accountant.
(c) Number of Conversion Shares; Conversion Price.
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(A) The number of Conversion Shares to be delivered by the
Corporation pursuant to a Conversion shall be determined by dividing (i) the
aggregate Stated Value of the Preferred Shares to be converted by (ii) the
Conversion Price (as defined below) in effect on the applicable Conversion Date.
(B) "Conversion Price" shall be determined, subject to adjustment for
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the events specified in Section 6 below, as follows: (A) during the period
beginning on the Issue Date and ending on the Trading Day (as defined below)
occurring immediately prior to the Effective Date (as defined below), the
Conversion Price shall be equal to the lower of (i) $20.00 (subject to
adjustment for the events specified in Section 6 hereof) and (ii) the Market
Price (as defined below) on the Issue Date (such lower price being referred to
herein as the "Initial Conversion Price"), (B) on and after
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the Effective Date (and subject to further adjustment as specified in clause (C)
below), the Conversion Price shall be equal to the lower of (i) the Initial
Conversion Price and (ii) the Market Price on the Effective Date and (C) on and
after the later to occur of (x) the ninetieth (90/th/) day following the
Effective Date and (y) the two hundred and seventieth (270/th/) day following
the Issue Date (the later to occur of (x) and (y) being referred to as the
"Determination Date"), the Conversion Price shall be equal to the lowest of (i)
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the Initial Conversion Price, (ii) the Conversion Price determined pursuant to
clause (B) above, and (iii) the Market Price on the Determination Date;
provided, however, that the adjustment to the Conversion Price effected pursuant
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to this clause (C) shall not occur in the event that the Market Price on the
Effective Date is at least 130% of the Initial Conversion Price. Notwithstanding
the foregoing, in no event will any Conversion Price calculated pursuant to
clauses (A), (B) or (C) above be lower than $8.00 (subject to adjustment for the
events specified in Section 6 hereof).
(d) Certain Definitions. "Business Day" means any day on which the New
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York Stock Exchange and commercial banks located in the City of New York are
open for business. "Closing Bid Price" means, with respect to the Common Stock,
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the closing bid price for the Common Stock occurring on a given Trading Day on
the principal securities exchange or trading market where such security is
listed or traded as reported by Bloomberg Financial Markets or, if Bloomberg
Financial Markets is not then reporting such prices, by a comparable reporting
service of national reputation selected by the Corporation and reasonably
acceptable to each Holder of the then outstanding Preferred Shares
(collectively, "Bloomberg") or if the foregoing does not apply, the last
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reported bid price of such security in the over-the-counter market on the
electronic bulletin board for such security as reported by Bloomberg, or, if no
bid price is reported for such security by Bloomberg, the average of the bid
prices of all market makers for such security as reported in the "pink sheets"
by the National Quotation Bureau, Inc. (collectively, the "Applicable Reporting
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Entity"). If the Closing Bid Price cannot be calculated for such security on
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any of the foregoing bases, the Closing Bid Price of such security shall be the
fair market value as reasonably determined by an independent investment banking
firm selected by all of the Holders of Preferred Shares, and reasonably
acceptable to the Corporation, with the costs of such appraisal to be borne by
the Corporation. "Effective Date" means the day on which the Registration
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Statement (as defined in the Registration Rights Agreement) is declared
effective by the Securities and Exchange Commission. "Market Price" means the
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average Closing Bid Price for the Common Stock occurring during the period of
ten (10) consecutive Trading Days immediately preceding (but not including) the
date of determination (but in no event greater than the Closing Bid Price on the
Trading Day immediately preceding such date of determination); provided that if
the Market Price cannot be calculated as aforesaid, such Market Price shall be
the fair market value as reasonably determined by an investment banking firm
selected by the Corporation and reasonably acceptable to the Holders of a
majority of the Preferred Shares then outstanding, with the costs of such
appraisal to be borne by the Corporation. "Trading Day" means any day on which
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the Common Stock is purchased and sold on the principal securities exchange or
market on which the Common Stock is then listed or traded.
(e) Delivery of Conversion Shares. Upon receipt of a Conversion Notice
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from a Holder, the Corporation shall, on or before the close of business on the
later to occur of (i) the third (3rd)
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Business Day following the Conversion Date set forth in such Conversion Notice
and (ii) with respect to Conversion Shares that are the subject of a dispute as
described in paragraph 4(b) above, the Business Day immediately following the
Disputed Share Calculation Date (the applicable such Business Day being referred
to herein as a "Delivery Date"), issue and deliver or cause to be delivered to
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such Holder the number of Conversion Shares to which such Holder is entitled to
receive as provided herein. The Corporation shall effect delivery of Conversion
Shares to a Holder by, as long as the transfer agent for the Corporation (the
"Transfer Agent") participates in the Depository Trust Company ("DTC") Fast
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Automated Securities Transfer program ("FAST"), crediting the account of such
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Holder or its nominee at DTC (as specified in the applicable Conversion Notice
or otherwise in writing) with the number of Conversion Shares required to be
delivered, no later than the close of business on such Delivery Date. In the
event that Transfer Agent is not a participant in FAST, or if Conversion Shares
are not otherwise eligible for delivery through FAST, or if a Holder so
specifies in a Conversion Notice or otherwise in writing on or before the
Delivery Date, the Corporation shall effect delivery of Conversion Shares by
delivering to the Holder or its nominee physical certificates representing such
shares, no later than the close of business on such Delivery Date. If any
Conversion would create a fractional Conversion Share, such fractional share
shall be disregarded and the number of Conversion Shares shall be the rounded to
the nearest whole number of shares. Conversion Shares delivered to a Holder
shall not contain any restrictive legend as long as (A) the resale, transfer,
pledge or other disposition of such shares is covered by an effective
registration statement and such Holder represents in writing to the Corporation
that such shares have been or are being sold pursuant to such registration
statement, (B) such shares have been publicly sold pursuant to Rule 144
("Rule 144"), or (C) such shares can be sold pursuant to Rule 144(k) under
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Securities Act of 1933, as amended (the "Securities Act"), or any successor
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rule or provision.
(f) Failure to Deliver Conversion Shares.
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(i) In the event that, as a result of any willful action or failure
to act on the part of the Corporation (whether under these Articles of
Amendment, under any other Transaction Document (as defined in the Securities
Purchase Agreement) or otherwise, including without limitation a failure by the
Corporation to have a sufficient number of shares of Common Stock authorized and
reserved for issuance pursuant to conversions of Preferred Shares), a Holder has
not received certificates (without any restrictive legend in the circumstances
described in clause (A), (B) or (C) of paragraph 4(e) above) representing the
number of Conversion Shares specified in the applicable Conversion Notice on or
before the Delivery Date therefor (a "Conversion Default"), and such failure to
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deliver certificates continues for ten (10) Business Days following the delivery
of written notice thereof from such Holder (such tenth Business Day being
referred to herein as the "Conversion Default Date"), the Corporation shall pay
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to such Holder payments ("Conversion Default Payments") in the amount of (i) "N"
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multiplied by (ii) the aggregate Stated Value of the Preferred Shares which are
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the subject of such Conversion Default multiplied by (iii) one percent (1%),
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where "N" equals the number of days elapsed between the Conversion Default Date
and the earlier to occur of (i) the date on which all of the certificates
(without any restrictive legend in the circumstances described in clause (A),
(B) or (C) of paragraph 4(e) above) representing such
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Conversion Shares are issued and delivered to such Holder, (ii) the date on
which such Preferred Shares are redeemed pursuant to the terms hereof and (iii)
the date on which a Withdrawal Notice (as defined below) is delivered to the
Corporation. Amounts payable hereunder shall be paid to the Holder in
immediately available funds on or before the fifth (5th) Business Day of the
calendar month immediately following the calendar month in which such amounts
have accrued.
(ii) In the event that a Holder has not received certificates
(without any restrictive legend in the circumstances described in clause (A),
(B) or (C) of paragraph 4(e) above) representing the Conversion Shares by the
tenth (10/th/) Business Day following a Conversion Default as a result of any
willful action or any failure to act on the part of the Corporation (whether
under these Articles of Amendment, under any other Transaction Document (as
defined in the Securities Purchase Agreement) or otherwise, including without
limitation a failure by the Corporation to have a sufficient number of shares of
Common Stock authorized and reserved for issuance pursuant to conversions of
Preferred Shares), such Holder may, upon written notice (a "Withdrawal Notice")
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delivered to the Corporation on such Business Day or on any Business Day
thereafter (unless, prior to the delivery of such notice, such Conversion Shares
are delivered to such Holder), withdraw its Conversion Notice with respect to
such Conversion Shares and regain its rights as a Holder of the Preferred Shares
that are the subject of such Conversion Default. In such event, the Conversion
Price in effect when such Preferred Shares are thereafter converted shall be
equal to the lowest Conversion Price or (if lower) Market Price occurring on or
after the date of such Conversion Notice reduced by one percent (1%) for each
day occurring during the period immediately following such 10th Business Day
until the day on which the such Holder delivers a Withdrawal Notice to the
Corporation; provided, however, that the maximum percentage by which such
Conversion Price may be reduced hereunder shall be fifty percent (50%). (For
example, if such Conversion Default were to continue for five days following
such 10th Business Day, such Conversion Price would be reduced by 5%; if for ten
days, by 10%; and for fifty days or more, 50%, so that the number of Conversion
Shares deliverable upon conversion of such Preferred Shares would be increased
proportionately). Upon delivery by a Holder of a Withdrawal Notice, such Holder
shall retain all of such Holder's rights and remedies with respect to the
Corporation's failure to deliver such Conversion Shares (including without
limitation the right to receive the cash payments specified in subparagraph
4(f)(i) above).
(iii) In addition to any other remedies provided herein, each Holder
shall have the right to pursue actual damages for the Corporation's failure to
issue and deliver Conversion Shares on the applicable Delivery Date (including,
without limitation, damages relating to any purchase of shares of Common Stock
by such Holder to make delivery on a sale lawfully effected in anticipation of
receiving Conversion Shares upon Conversion, such damages to be in an amount
equal to (A) the aggregate amount paid by such Holder for the shares of Common
Stock so purchased minus (B) the aggregate Conversion Price for such Conversion
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Shares, and such Holder shall have the right to pursue all other remedies
available to it at law or in equity (including, without limitation, a decree of
specific performance and/or injunctive relief).
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(g) Conversion at Maturity. On the Determination Date, all Preferred
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Shares then held by the Holders (and with respect to which a Holder has not
submitted a Notice of Conversion) shall be automatically converted into the
number of shares of Common Stock equal to the Stated Value of such Preferred
Shares divided by the Conversion Price then in effect (a "Conversion at
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Maturity"); provided, however, that if, on the Determination Date, (i) the
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number of shares of Common Stock authorized, unissued and unreserved for all
other purposes, or held in the Corporation's treasury, is not sufficient to
effect the issuance and delivery of the number of Conversion Shares into which
all outstanding Preferred Shares are then convertible, (ii) the Common Stock is
not actively traded on either the Nasdaq SmallCap or National Market, (iii) a
Mandatory Redemption Event (as defined herein) has occurred and is continuing,
(iv) the conversion of a Holder's Preferred Shares pursuant to the Conversion at
Maturity would violate the provisions of Section 5 below; provided, however,
that in such event the Conversion at Maturity would apply solely to those
Preferred Shares the conversion of which would not violate Section 5 as of the
Determination Date and provided, further, that the determination on the
Determination Date of a Holder's beneficial ownership of Common Stock pursuant
to paragraph 5(b) above shall exclude any shares of Common Stock acquired by
such Holder otherwise than pursuant to the conversion or exercise of securities
outstanding on the day following the issuance of the Preferred Stock, or (v) the
Registration Statement (as defined in the Registration Rights Agreement) is not
effective and available for the resale of all Conversion Shares and Warrant
Shares issuable on the Determination Date upon the conversion or exercise of all
Preferred Shares and Warrants then outstanding (without regard to any
limitations on such conversion or exercise), each Holder shall have the option,
upon written notice to the Corporation, to regain its rights as a holder of
Preferred Shares (which, in the circumstances described in clause (iv) above,
would comprise the Preferred Shares not converted pursuant to the proviso of
clause (iv)), including without limitation, the right to convert such Preferred
Shares in accordance with the terms of paragraphs 4(a) through 4(f) hereof and,
upon delivery of such notice, such Preferred Shares shall not be subject to a
Conversion at Maturity hereunder until the thirtieth (30/th/) day following the
later of (a) the date on which the event specified in (i), (ii), (iii), (iv), or
(v) is no longer continuing and (b) the date on which the Corporation delivers
to each Holder written notice to such effect, and in such event, such thirtieth
day shall be deemed to be the Determination Date for purposes of these Articles
of Amendment; provided, however, that in the case of an event specified in
clause (iv), which (A) relates to the provisions of paragraph 5(a), the
Conversion Price for any conversions occurring after the happening of an event
(including without limitation the approval of the Corporation's stockholders
described in paragraph 5(a)) pursuant to which the applicability of such
paragraph to the conversion of Preferred Shares is eliminated shall be equal to
the lowest of (i) the Initial Conversion Price, (ii) the Conversion Price in
effect on the Determination Date, and (iii) the Market Price on the first
Trading Day on which paragraph 5(a) is no longer applicable, or (B) relates to
the provisions of paragraph 5(b), the Conversion Price for any conversions
occurring after the Determination Date shall be equal to the Conversion Price on
the Determination Date. In the event that the Registration Statement (as defined
in the Registration Rights Agreement) has not been effective and available to
each Holder for the resale of the maximum number of Conversion Shares and
Warrant Shares issuable upon conversion or exercise of such Holder's Preferred
Shares and Warrants, respectively (without regard to any
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limitations on such conversion or exercise), for any period or periods on or
after the Effective Date and before the Determination Date (collectively, a
"Blackout Period"), the Determination Date (the "Original Determination Date")
shall be delayed for a period of days equal to the Blackout Period (the Trading
Day immediately following last day of such period being referred to herein as
the "Delayed Determination Date") and the Delayed Determination Date shall be
deemed to be the Determination Date for the purposes of these Articles of
Amendment; provided, however, that if the Determination Date is delayed because
a Blackout Period has occurred, the Conversion Price in effect on and after the
Original Determination Date (but prior to the Delayed Determination Date) shall
be equal to the lowest of (i) the Initial Conversion Price, (ii) the Conversion
Price in effect on the Trading Day immediately prior to the Original
Determination Date, and (iii) the Market Price on the Original Determination
Date and provided, further, that the Conversion Price in effect on the Delayed
Determination Date shall be equal to the lowest of (i) the Initial Conversion
Price, (ii) the Conversion Price in effect on the Trading Day immediately prior
to the Delayed Determination Date, and (iii) the Market Price on the Delayed
Determination Date. Notwithstanding the foregoing, in no event will any
Conversion Price calculated as set forth in this paragraph 4(g) be lower than
$8.00 (subject to adjustment for the events specified in Section 6 hereof). If a
Conversion at Maturity occurs, the Corporation and each Holder shall follow the
procedures for Conversion set forth in this Section 4, with the Determination
Date deemed to be the Conversion Date, except that the Holder shall not be
required to send a Conversion Notice as contemplated by paragraph 4(b).
5. CONVERSION LIMITATIONS.
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In no event shall a Holder be permitted to convert any Preferred Shares in
excess of the number of such shares, upon the Conversion of which:
(a) the number of Conversion Shares to be issued pursuant to such
Conversion, when added to the number of shares of Common Stock issued pursuant
to all prior Conversions of Preferred Shares and all prior exercises of the
Warrants by the Holders thereof, would exceed the maximum number of shares of
Common Stock issuable by the Corporation without stockholder approval in
compliance with the continued listing requirements of the Nasdaq SmallCap Market
(the "Cap Amount"), except that such limitation shall not apply in the event
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that (i) the Corporation obtains the approval of the holders of a majority of
the Corporation's Common Stock for the issuance of Common Stock in excess of the
Cap Amount (it being understood that any Holder whose Cap Allocation Amount (as
defined below) represents one hundred and seventy-five percent (175%) or less of
(A) the number of Conversion Shares and Warrant Shares into which the Preferred
Shares and Warrants then held by such Holder are convertible or exercisable at
the Conversion Price or the Exercise Price, as the case may be, then in effect
(without regard to any restrictions or limitations on such conversion or
exercise) plus (B) the number of Conversion Shares and Warrant Shares into which
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such Holder has previously converted Preferred Shares and exercised the
Warrants, respectively, shall have the right to require the Corporation, upon
written notice to such effect, to seek such approval by means of a special
meeting of stockholders to be held as soon as practicable following the
Corporation's receipt of such notice, but in any case within ninety (90)
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days following such receipt, and to recommend such approval to its stockholders
at such special meeting) or (ii) the Holders of a majority of the number of
Preferred Shares then outstanding (or, if no Preferred Shares are outstanding,
the holders of Warrants exercisable into majority of the Warrant Shares then
issuable) obtain an opinion of counsel reasonably satisfactory to the
Corporation that such approval is not required. Until such approval or opinion
is obtained, no purchaser of Preferred Shares pursuant to the Securities
Purchase Agreement (each, a "Purchaser" and together the "Purchasers") shall be
---------
issued, upon Conversion of the Preferred Shares, Conversion Shares in an amount
greater than the product of (A) the Cap Amount times (B) a fraction, the
-----
numerator of which is the number of Preferred Shares issued to such Purchaser
pursuant to the Securities Purchase Agreement and the denominator of which is
the aggregate amount of all of the Preferred Shares issued to the Purchasers
pursuant to the Securities Purchase Agreement (the "Cap Allocation Amount"). In
---------------------
the event that any Purchaser shall sell or otherwise transfer any of such
Purchaser's Preferred Shares or Warrants, the transferee shall be allocated a
pro rata portion of such Purchaser's Cap Allocation Amount. In the event that
any Holder converts all of such Holder's Preferred Shares and Warrants into a
number of Conversion Shares and Warrant Shares which, in the aggregate, is less
than such Holder's Cap Allocation Amount, then the difference between such
Holder's Cap Allocation Amount and the number of Conversion Shares and Warrant
Shares actually issued to such Holder shall be allocated to the respective Cap
Allocation Amounts of the remaining Holders of Preferred Shares on a pro rata
basis in proportion to the number of Preferred Shares then held by each such
Holder; or
(b) (x) the number of shares of Common Stock beneficially owned by such
Holder (other than shares of Common Stock issuable upon conversion of such
Preferred Shares or which would otherwise be deemed beneficially owned except
for being subject to a limitation on conversion or exercise analogous to the
limitation contained in this paragraph 5(b)) plus (y) the number of shares of
----
Common Stock issuable upon the Conversion of such Preferred Shares, would be
equal to or exceed (z) 4.99% of the number of shares of Common Stock then issued
and outstanding. As used herein, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules thereunder. To the extent that the limitation contained
in this paragraph applies (and without limiting any rights the Corporation may
otherwise have), the Corporation may rely on the Holder's determination of
whether Preferred Shares are convertible pursuant to the terms hereof, the
Corporation having no obligation whatsoever to verify or confirm the accuracy of
such determination, and the submission of a Conversion Notice by the Holder
shall be deemed to be the Holder's representation that the Preferred Shares
specified therein are convertible pursuant to the terms hereof. This paragraph
may be amended by all of the Holders of Preferred Shares then outstanding only
with the consent of the holders of a majority of the shares of Common Stock then
outstanding. Nothing contained herein shall be deemed to restrict the right of a
Holder to convert Preferred Shares at such time as the Conversion thereof will
not violate the provisions of this paragraph 5(b).
-13-
<PAGE>
6. ADJUSTMENTS TO CONVERSION PRICE.
-------------------------------
(a) Adjustment to Fixed Conversion Price Due to Stock Split, Stock
--------------------------------------------------------------
Dividend, Etc. If, prior to the Conversion of all of the Preferred Shares, (A)
- -------------
the number of outstanding shares of Common Stock is increased by a stock split,
a stock dividend on the Common Stock, a reclassification of the Common Stock, or
other similar event, the Conversion Price shall be proportionately reduced,
which reduction shall be effected on the date on which the Corporation announces
such event; or (B) the Corporation issues Common Stock, whether upon the
exercise of rights, warrants, securities convertible or exercisable into Common
Stock or otherwise, at a price (the "Issue Price") that is less than the current
-----------
Market Price thereof at the time of such issuance, the Conversion Price that
would otherwise be in effect on a particular date following such issuance shall
be proportionately reduced in order to account for the difference between the
Issue Price and such Market Price; provided, however, that if the Issue Price is
lower than the Conversion Price otherwise in effect on the date of such
issuance, such Conversion Price will be reduced to the lower of the amount
determined by this clause (B) and the amount determined by clause (D) below; (C)
the number of outstanding shares of Common Stock is decreased by a reverse stock
split, combination or reclassification of shares or other similar event, the
Conversion Price shall be proportionately increased, which increase shall be
effected on the date on which the Corporation announces such event; or (D) the
Corporation issues Common Stock, whether upon the exercise of rights, warrants,
securities convertible or exercisable into Common Stock or otherwise, at a price
that is lower than the Conversion Price in effect on any Conversion Date
following the date of such issuance, such Conversion Price shall be reduced to
such lower price.
In no event shall any adjustment pursuant to clause (B) or clause (D) above
result in a Conversion Price that exceeds the Conversion Price that would
otherwise apply in the absence of such adjustment.
(b) Adjustment to Conversion Price During Reference Period. If, prior to
------------------------------------------------------
the Conversion of all of the Preferred Shares, the number of outstanding shares
of Common Stock is increased or decreased by a stock split, a stock dividend on
the Common Stock, a combination, a reclassification of the Common Stock or other
similar event, and such event takes place during the reference period for the
determination of the Conversion Price for any Conversion thereof, the Conversion
Price shall be calculated giving appropriate effect to the stock split, stock
dividend, combination, reclassification or other similar event for all Trading
Days occurring during such reference period.
(c) Adjustment Due to Merger, Consolidation, Etc. If, prior to the
--------------------------------------------
Conversion of all of the Preferred Shares, there shall be any merger,
consolidation, business combination, tender offer, exchange of shares,
recapitalization, reorganization, redemption or other similar event, as a result
of which shares of Common Stock shall be changed into the same or a different
number of shares of the same or another class or classes of stock or securities
of the Corporation or another entity (an "Exchange Transaction"), then such
--------------------
Holder shall (A) upon the consummation of such Exchange Transaction, have the
right to receive, with respect to any shares of Common Stock then held by such
Holder, or which such Holder is then entitled to receive pursuant to a
Conversion Notice previously delivered by such Holder (and without regard to
whether such shares contain a restrictive legend or are freely-tradable), the
same amount and type of consideration (including without
-14-
<PAGE>
limitation, stock, securities and/or other assets) and on the same terms as a
holder of shares of Common Stock would be entitled to receive in connection with
the consummation of such Exchange Transaction (the "Exchange Consideration"),
----------------------
and (B) upon the Conversion of Preferred Shares occurring subsequent to the
consummation of such Exchange Transaction (a "Subsequent Conversion"), have the
--------------------
right to receive the Exchange Consideration which such Holder would have been
entitled to receive in connection with such Exchange Transaction had such shares
been converted immediately prior to such Exchange Transaction at the Conversion
Price applicable on the Conversion Date relating to such Subsequent Conversion,
and in any such case appropriate provisions shall be made with respect to the
rights and interests of such Holder to the end that the provisions hereof
(including, without limitation, provisions for the adjustment of the Conversion
Price and of the number of shares of Common Stock issuable upon a Conversion)
shall thereafter be applicable as nearly as may be practicable in relation to
any securities thereafter deliverable upon the Conversion of such Preferred
Shares. The Corporation shall not effect any Exchange Transaction unless (i) it
first gives to each Holder twenty (20) days prior written notice of such
Exchange Transaction (an "Exchange Notice"), and makes a public announcement of
---------------
such event at the same time that it gives such notice (it being understood that
the filing by the Corporation of a Form 8-K for the purpose of disclosing the
anticipated consummation of the Exchange Transaction shall constitute an
Exchange Notice for purposes of this provision) and (ii) the resulting successor
or acquiring entity (if not the Corporation) assumes by written instrument the
obligations of the Corporation hereunder, including the terms of this
subparagraph 6(c), and under the Securities Purchase Agreement and the
Registration Rights Agreement.
(d) Distribution of Assets. If the Corporation or any of its subsidiaries
----------------------
shall declare or make any distribution of cash, evidences of indebtedness or
other securities or assets (other than cash dividends or distributions payable
out of earned surplus or net profits for the current or the immediately
preceding year), or any rights to acquire any of the foregoing, to holders of
Common Stock (or to a holder, other than the Corporation, of the common stock of
any such subsidiary) as a partial liquidating dividend, by way of return of
capital or otherwise, including any dividend or distribution in shares of
capital stock of a subsidiary of the Corporation (collectively, a
"Distribution"), then each Holder shall be entitled to receive, at the same time
------------
as such assets are received by a holder of such stock, an amount and type of
such Distribution as though such Holder were a holder on the record date
therefor of a number of shares of Common Stock determined by dividing the
Liquidation Preference of the Preferred Shares held by such Holder on such
record date by the lower of the Market Price and the Conversion Price in effect
on such record date (such number of shares to be determined without regard to
any limitation on conversion of the Preferred Shares that may exist pursuant to
these Articles of Amendment or otherwise).
(e) Adjustment Due to Major Announcement. If the Corporation (i) makes a
------------------------------------
public announcement that it intends to enter into a Change of Control
Transaction (as defined below) or (ii) any person, group or entity (including
the Corporation) publicly announces a tender offer, exchange offer or other
transaction to purchase 50% or more of the Common Stock (such announcement being
referred to herein as a "Major Announcement" and the date on which a Major
------------------
Announcement is made, the "Announcement Date"), then, in the event that a Holder
-----------------
seeks
-15-
<PAGE>
to convert Preferred Shares on or following the Announcement Date, the
Conversion Price shall, effective upon the Announcement Date and continuing
through the fifth (5th) Business Day following the earlier to occur of the
consummation of the proposed transaction or tender offer, exchange offer or
other transaction and the Abandonment Date (as defined below), be equal to the
lowest of (x) the Conversion Price in effect on the Announcement Date, (y) the
Market Price on the Announcement Date and (z) the Conversion Price that would
otherwise be in effect on the Conversion Date for such Preferred Shares.
"Abandonment Date" means with respect to any proposed transaction or tender
----------------
offer, exchange offer or other transaction for which a public announcement as
contemplated by this paragraph 6(e) has been made, the date upon which the
Corporation (in the case of clause (i) above) or the person, group or entity (in
the case of clause (ii) above) publicly announces the termination or abandonment
of the proposed transaction or tender offer, exchange offer or another
transaction which caused this paragraph 6(e) to become operative.
(f) Issuance of Other Securities. If, at any time after the Closing Date,
----------------------------
the Corporation shall issue any securities which are convertible into or
exchangeable for Common ("Convertible Securities") either (i) at a conversion or
exchange rate based on a discount from the Market Price of the Common Stock at
the time of conversion or exercise or (ii) with a fixed conversion or exercise
price less than the Conversion Price, then, at the Holder's option: (x) in the
case of clause (i), the Conversion Price in respect of any conversion of the
Preferred Shares after such issuance shall be calculated utilizing the greatest
discount applicable to any such Convertible Securities; and (y) in the case of
clause (ii), the Conversion Price shall be proportionately reduced. If the
Corporation shall issue any Convertible Securities that are convertible into or
exchangeable for shares of Common Stock on a basis different from that of these
Articles of Amendment, each Holder may elect that the provisions of these
Articles of Amendment be revised to incorporate such different provisions with
respect to conversion or exchange, subject to the limitations of Section 5
hereof; provided, however, Purchaser may not select provisions on a non-
integrated basis which would have an inequitable result on the intent of this
provision.
(g) Adjustment Pursuant to Other Agreements. In addition to and without
---------------------------------------
limiting in any way the adjustments provided in this Section 6, the Conversion
Price shall be adjusted as may be required by the provisions of the Registration
Rights Agreement and/or by the provisions of the Securities Purchase Agreement.
(h) No Fractional Shares. If any adjustment under this Section would
--------------------
create a fractional share of Common Stock or a right to acquire a fractional
share of Common Stock, such fractional share shall be disregarded and the number
of shares of Common Stock issuable upon Conversion shall be rounded to the
nearest whole number of shares.
(i) Exceptions to Adjustment of Conversion Price. No adjustment to the
--------------------------------------------
Conversion Price will be made (i) upon the exercise or conversion of any
warrants, options or convertible securities issued and outstanding on the date
hereof in accordance with the terms of such securities as of such date; (ii)
upon the grant or exercise of any stock or options which may hereafter be
-16-
<PAGE>
granted or exercised under any employee, consultant or director benefit plan of
the Corporation now existing or to be implemented in the future, so long as the
issuance of such stock or options is approved by a majority of the non-employee
members of the Board of Directors of the Corporation or a majority of the
members of a committee of non-employee directors established for such purpose;
(iii) upon the issuance of the Conversion Shares; or (iv) upon the exercise of
the Warrants.
7. REDEMPTION.
----------
(a) Mandatory Redemption. In the event that a Mandatory Redemption Event
--------------------
(as defined below) occurs, each Holder shall have the right to require the
Corporation to redeem all or any portion of the Preferred Shares held by such
Holder (a "Mandatory Redemption") at the Mandatory Redemption Price (as defined
--------------------
herein). In order to exercise its right to effect a Mandatory Redemption, a
Holder must deliver a written notice (a "Mandatory Redemption Notice") to the
---------------------------
Corporation at any time on or before 11:59 p.m. (eastern time) on the third
(3/rd/) Business Day following the Business Day on which the Mandatory
Redemption Event to which such Mandatory Redemption Notice relates is no longer
continuing. The Mandatory Redemption Notice shall specify the effective date of
such Mandatory Redemption (the "Mandatory Redemption Date") and the number of
-------------------------
such shares to be redeemed.
(b) Mandatory Redemption Event. Each of the following events shall be
--------------------------
deemed a "Mandatory Redemption Event":
--------------------------
(i) the Corporation fails, as a result of (x) not having a
sufficient number of shares of Common Stock authorized and reserved for
issuance, (y) failing to obtain the approval of its stockholders as required by
paragraph 5(a) hereof or by paragraph 4.12 of the Securities Purchase Agreement,
or (z) for any other reason within the control of the Corporation, to issue
shares of Common Stock to a Holder and deliver certificates representing such
shares (without any restrictive legend under the circumstances described in
paragraph 4(e) hereof) to such Holder as and when required by the provisions
hereof upon conversion of any Preferred Shares, and such failure continues for
ten (10) Business Days;
(ii) the Corporation breaches, in a material respect, any covenant or
other material term or condition of these Articles of Amendment, the Securities
Purchase Agreement, the Registration Rights Agreement, the Warrants or any other
agreement, document, certificate or other instrument delivered in connection
with the transactions contemplated thereby, and such breach continues for a
period of five (5) Business Days after written notice thereof to the Corporation
from a Holder;
(iii) any material representation or warranty made by the Corporation
in the Securities Purchase Agreement, the Registration Rights Agreement, the
Warrants or any other agreement, document, certificate or other instrument
delivered in connection with the transactions contemplated hereby or thereby is
inaccurate or misleading in any material respect as of the date such
representation or warranty was made;
-17-
<PAGE>
(iv) (x) the sale, conveyance or disposition of all or substantially
all of the assets of the Corporation, the effectuation of a transaction or
series of transactions in which more than 50% of the voting power of the
Corporation is disposed of, or the consolidation, merger or other business
combination of the Corporation with or into any other entity, immediately
following which the prior stockholders of the Corporation fail to own, directly
or indirectly, at least fifty percent (50%) of the surviving entity or (y) a
transaction or series of transactions in which any person acquires control of
the Corporation (each a "Change of Control Transaction"). For purposes hereof,
"control" shall mean, with respect to the Corporation, the ability to direct the
- --------
business, operations or management of the Corporation, whether through an equity
interest therein or otherwise; and
(v) the Common Stock is not quoted on the Nasdaq SmallCap Market or
Nasdaq National Market or listed on the New York Stock Exchange or the American
Stock Exchange, or trading in the Common Stock on such market or exchange is
suspended and such suspension is in effect for more than five consecutive (5)
Trading Days, and such suspension or failure to be so quoted or listed occurs as
a result of any willful action or failure to act on the part of the Corporation.
(c) Mandatory Redemption Price. The "Mandatory Redemption Price" shall be
-------------------------- --------------------------
equal to the greater of (i) the Liquidation Preference of the Preferred Shares
being redeemed multiplied by one hundred and twenty five percent (125%) and (ii)
-------------
an amount determined by dividing the Liquidation Preference of the Preferred
Shares being redeemed by the Conversion Price in effect on the Mandatory
Redemption Date and multiplying the resulting quotient by the average Closing
Trade Price for the Common Stock on the five (5) Trading Days immediately
preceding (but not including) the Mandatory Redemption Date.
(d) Payment of Mandatory Redemption Price.
-------------------------------------
(i) The Corporation shall pay the Mandatory Redemption Price to the
Holder exercising its right to redemption on the later to occur of (i) the fifth
(5th) Business Day following the Mandatory Redemption Date and (ii) the date on
which the Preferred Shares being redeemed are delivered by the Purchaser to the
Corporation for cancellation (the "Mandatory Redemption Payment Date").
---------------------------------
(ii) If Corporation fails to pay the Mandatory Redemption Price to
the Holder on or before the Mandatory Redemption Date, the Holder shall be
entitled to interest thereon, from and after the Mandatory Redemption Payment
Date until the Mandatory Redemption Price has been paid in full, at an annual
rate equal to the Default Interest Rate.
(iii) If the Corporation fails to pay the Mandatory Redemption Price
within ten (10) Business Days of the Mandatory Redemption Date, then the Holder
shall have the right to regain its rights as a Holder of the Series B Preferred
Stock and, upon written notice to such effect from the Holder, the Corporation
shall return to such Holder the certificates representing the
-18-
<PAGE>
Preferred Shares that were delivered to the Corporation in connection with such
Mandatory Redemption; in such event, the Conversion Price otherwise applicable
to future Conversions of the Preferred Shares shall be reduced by one percent
(1%) for each day beyond such 10th Business Day in which the failure to pay the
Mandatory Redemption Price continued until the date of such notice; provided,
however, that the maximum percentage by which such Conversion Price may be
reduced hereunder shall be fifty percent (50%).
8. MISCELLANEOUS.
-------------
(a) Transfer of Preferred Shares. Upon notice to the Corporation, a
----------------------------
Holder may sell or transfer all or any portion of the Preferred Shares to any
person or entity as long as such sale or transfer is the subject of an effective
registration statement under the Securities Act or is exempt from registration
thereunder and otherwise is made in accordance with the terms of the Securities
Purchase Agreement. Notwithstanding the foregoing, no Holder shall knowingly and
voluntarily sell any Preferred Shares to an entity that is a competitor of the
Corporation. From and after the date of such sale or transfer, the transferee
thereof shall be deemed to be a Holder. Upon any such sale or transfer, the
Corporation shall, promptly following the return of the certificate or
certificates representing the Preferred Shares that are the subject of such sale
or transfer, issue and deliver to such transferee a new certificate in the name
of such transferee.
(b) Notices. Except as otherwise provided herein, any notice, demand or
-------
request required or permitted to be given pursuant to the terms hereof, the form
or delivery of which notice, demand or request is not otherwise specified
herein, shall be in writing and shall be deemed delivered (i) when delivered
personally or by verifiable facsimile transmission on or before 5:00 p.m.,
eastern time, on a Business Day or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) on the next Business Day after timely
delivery to an overnight courier and (iii) on the day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed to the parties as follows:
If to the Corporation:
WEBB Interactive Services, Inc.
1800 Glenarm Place, Suite 700
Denver, Colorado 80202
Tel: 303-296-9200
Fax: 303-(303) 292-5039
Attention: William Cullen
-19-
<PAGE>
with a copy to:
Gray, Plant, Mooty, Mooty & Bennett, P.A.
3400 City Center
33 South Sixth Street
Minneapolis, MN 55402-3796
Telecopy: (612) 333-0066
Attention: Lindley S. Branson, Esq.
and if to any Holder, to such address for such Holder as shall be
designated by such Holder in writing to the Corporation.
(c) Lost or Stolen Certificate. Upon receipt by the Corporation of
--------------------------
evidence of the loss, theft, destruction or mutilation of a certificate
representing Preferred Shares, and (in the case of loss, theft or destruction)
of indemnity or security reasonably satisfactory to the Corporation and the
Transfer Agent, and upon surrender and cancellation of such certificate if
mutilated, the Corporation shall execute and deliver to the Holder a new
certificate identical in all respects to the original certificate.
(d) No Voting Rights. Except as provided by applicable law and
----------------
paragraph 8(g) below, the Holders of the Preferred Shares shall have no voting
rights with respect to the business, management or affairs of the Corporation;
provided that the Corporation shall provide each Holder with prior notification
of each meeting of stockholders (and copies of proxy statements and other
information sent to such stockholders).
(e) Remedies, Characterization, Other Obligations, Breaches and Injunctive
----------------------------------------------------------------------
Relief. The remedies provided to a Holder in these Articles of Amendment shall
- ------
be cumulative and in addition to all other remedies available to such Holder
under these Articles of Amendment or under any Transaction Document (as defined
in the Securities Purchase Agreement), at law or in equity (including without
limitation a decree of specific performance and/or other injunctive relief), no
remedy contained herein shall be deemed a waiver of compliance with the
provisions giving rise to such remedy and nothing contained herein shall limit
such Holder's right to pursue actual damages for any failure by the Corporation
to comply with the terms of these Articles of Amendment. The Corporation agrees
with each Holder that there shall be no characterization concerning this
instrument other than as specifically provided herein. Amounts set forth or
provided for herein with respect to payments, conversion and the like (and the
computation thereof) shall be the amounts to be received by the Holder hereof
and shall not, except as expressly provided herein, be subject to any other
obligation of the Corporation (or the performance thereof). The Corporation
acknowledges that a material breach by it of its obligations hereunder will
cause irreparable harm to the Holders and that the remedy at law for any such
breach may be inadequate. The Corporation agrees, in the event of any such
breach or threatened breach, each Holder shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach, without the
necessity of showing economic loss and without any bond or other security being
required.
-20-
<PAGE>
(f) Failure or Delay not Waiver. No failure or delay on the part of a
----------------------------
Holder in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
(g) Protective Provisions.
---------------------
So long as shares of Series B Preferred Stock are outstanding, the
Corporation shall not, without first obtaining the approval of the Holders of at
least two-thirds (2/3) of outstanding shares of Series B Preferred Stock:
(i) alter, change, modify or amend (x) the terms of the Series
B Preferred Stock in any way or (y) the terms of any other capital stock of the
Corporation so as to affect adversely the Series B Preferred Stock;
(ii) create any new class or series of capital stock having a
preference over or ranking pari passu with the Series B Preferred Stock as to
redemption or distribution of assets upon a Liquidation Event or any other
liquidation, dissolution or winding up of the Corporation;
(iii) increase the authorized number of shares of Series B
Preferred Stock;
(iv) re-issue any shares of Series B Preferred Stock which have
been converted or redeemed in accordance with the terms hereof;
(v) issue any Pari Passu Securities or Senior Securities;
(vi) redeem, or declare, pay or make any provision for any
dividend or distribution with respect to, the Common Stock or any other capital
stock of the Corporation ranking junior to the Series B Preferred Stock as to
the distribution of assets upon liquidation, dissolution or winding up of the
Corporation; or
(vii) issue any Series B Preferred Stock except pursuant to the
terms of the Securities Purchase Agreement.
In the event that the Holders of at least two-thirds of the outstanding
shares of Series B Preferred Stock agrees to allow the Corporation to alter or
change the rights, preferences or privileges of the shares of Series B Preferred
Stock pursuant to the terms hereof, then the Corporation will deliver notice of
such approved change to the holders of the Series B Preferred Stock that did not
agree to such alteration or change (the "Dissenting Holders") and the Dissenting
------------------
Holders shall have the right for a period of thirty (30) days following such
delivery to convert their Preferred Shares pursuant to the terms hereof as they
existed prior to such alteration or change, or to
-21-
<PAGE>
continue to hold such Preferred Shares. No such change shall be effective to the
extent that, by its terms, it applies to less than all of the Holders of
Preferred Shares then outstanding.
[Remainder of Page Intentionally Left Blank]
-22-
<PAGE>
IN WITNESS WHEREOF, the Corporation has duly executed these Articles of
Amendment as of the 16th day of February, 2000.
WEBB INTERACTIVE SERVICES, INC.
By: _______________________________
William R. Cullen
Chief Financial Officer
-23-
<PAGE>
EXHIBIT A TO ARTICLES OF AMENDMENT
----------------------------------
NOTICE OF CONVERSION
The undersigned hereby elects to convert shares of Series B Convertible
Preferred Stock (the "Preferred Stock"), represented by stock certificate No(s).
_______________ (the "Preferred Stock Certificates"), into shares of common
stock ("Common Stock") of WEBB INTERACTIVE SERVICES, INC. according to the terms
and conditions of the Articles of Amendment relating to the Preferred Stock (the
"Articles of Amendment"), as of the date written below. Capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Articles of Amendment. Unless otherwise specified in writing to the
Corporation, the undersigned represents to the Corporation that the shares of
Common Stock covered by this notice have been or will be sold pursuant to an
effective registration statement.
Date of Conversion:____________________________
Number of Shares of
Preferred Stock to be Converted:_______________
Applicable Conversion Price:___________________
Number of Shares of
Common Stock to be Issued:_____________________
Name of Holder:________________________________
Address: ______________________________________
______________________________________
______________________________________
Signature: ____________________________________
Name:
Title:
Holder Requests Delivery to be made: (check one)
- -----------------------------------
By Delivery of Physical Certificates to the Above Address
Through Depository Trust Corporation
(Account ________________________________)
