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EXHIBIT 4.1
CERTIFICATE OF VOTING POWERS,
DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE
QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, OF THE
SERIES G CONVERTIBLE REDEEMABLE PREFERRED STOCK
OF
ALLIN CORPORATION
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Allin Corporation, a corporation organized and existing by virtue of the
laws of the State of Delaware (the "Corporation"), does hereby certify that the
following resolutions were duly adopted by the Board of Directors of the
Corporation on November 13, 2000.
RESOLVED THAT, pursuant to the authority expressly granted to and vested in
the Board of Directors of the Corporation by the provisions of the Certificate
of Incorporation of the Corporation (the "Certificate of Incorporation"), the
Board of Directors hereby creates, from the shares of preferred stock of the
Corporation authorized to be issued pursuant to the Certificate of
Incorporation, a series of the preferred stock designated Series G Convertible
Redeemable Preferred Stock, and hereby fixes the voting powers, designations,
preferences and relative participating, optional or other rights, and the
qualifications, limitations or restrictions thereof, of the shares of such
Series as follows:
1. Designation. One hundred fifty (150) shares of the preferred stock
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are hereby designated Series G Convertible Redeemable Preferred Stock with a par
value of $.01 per share (the "Series G Preferred Stock").
2. Rank. The Series G Preferred Stock shall rank senior to the common
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stock of the Corporation and all other currently designated series of preferred
stock of the Corporation, other than the Series F Convertible Redeemable
Preferred Stock, which shall rank senior to the Series G Preferred Stock.
3. Dividends.
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(a) The holders of shares of Series G Preferred Stock shall be
entitled to receive, when and as declared out of funds legally available for the
payment of dividends by the Board of Directors, cash dividends on each share of
the Series G Preferred Stock (referred to as a "Share") at a rate per annum of
8% of the Liquidation Value (as defined) thereof, from and including the date of
issuance of such Share (the "Issue Date") to and including the earlier of (i)
the date on which the Redemption Price (as defined) of such Share is paid, (ii)
the Conversion Date (as defined) of such Share or (iii) the fifth anniversary of
the Issue Date. The dividend rate
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on each Share will increase to 12% of the Liquidation Value thereof, from and
after the fifth anniversary of the Issue Date to and including the earlier of
(i) the Conversion Date of such Share or (ii) the date on which the Redemption
Price of such Share is paid.
Such dividends, to the extent declared by the Board of Directors, will
be payable quarterly in arrears on each January 1, April 1, July 1 and October 1
(hereinafter referred to as "Dividend Payment Dates"). To the extent that
dividends are not paid on a particular Dividend Payment Date, all such dividends
will accrue and compound on a quarterly basis and will be paid on or before the
Redemption Date.
(b) So long as any shares of the Series G Preferred Stock are
outstanding, the Corporation will not declare or pay or set apart for payment
any dividends (other than a dividend in common stock or in any other class of
stock ranking junior to the Series G Preferred Stock as to dividends and upon
liquidation) or make any other distribution on any class of stock of the
Corporation ranking junior to the Series G Preferred Stock either as to
dividends or upon liquidation (collectively, "Junior Securities") and will not
redeem, purchase or otherwise acquire for value, or set apart money for any
sinking or other analogous fund for the redemption or purchase of any shares of
any Junior Securities (in any such case, a "Junior Payment"), unless all
dividends on the Series G Preferred Stock for the Dividend Payment Date
immediately prior to or concurrent with the payment with respect to any such
dividend, distribution, redemption, purchase or acquisition as to such Junior
Securities shall have been paid, or shall have been declared and a sum
sufficient for the payment thereof set aside by the Corporation separate and
apart from its other funds.
4. Liquidation.
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(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, before any payment or distribution
of the assets of the Corporation (whether capital, surplus or earnings) or
proceeds therefrom shall be made to or set apart for the holders of shares of
any Junior Securities, the holders of shares of Series G Preferred Stock shall
be entitled to receive a payment per Share equal to the original purchase price
for such Share (the "Liquidation Value") held by them, plus an amount equal to
all dividends accrued and compounded and unpaid on such shares to the date of
such payment.
(b) If upon any liquidation, dissolution or winding up of the
Corporation, the Corporation's assets to be distributed among the holders of the
Series G Preferred Stock are insufficient to permit payment to such holders of
the aggregate amount which they are entitled to be paid, then the entire assets
to be distributed will be distributed ratably among such holders based upon the
aggregate Liquidation Value of the Series G Preferred Stock held by each such
holder. The Corporation will mail written notice of such liquidation,
dissolution or winding up, not less than sixty (60) days prior to the payment
date stated therein, to each record holder of Series G Preferred Stock. Neither
the consolidation nor merger of the Corporation into or with any other
corporation or corporations, nor the sale or transfer by the Corporation of all
or any part of its assets, nor the reduction of the capital stock of the
Corporation, will be deemed to be a liquidation, dissolution or winding up of
the Corporation within the meaning of this paragraph.
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5. Redemption.
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(a) Optional Redemption. At any time and from time to time after the
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fifth anniversary of the Issue Date, the Corporation shall have the right to
redeem all or part of the outstanding Shares of Series G Preferred Stock, by
giving written notice thereof to the affected stockholder or stockholders (the
"Redemption Notice"). The Redemption Notice shall specify (i) the redemption
date which shall be not less than thirty (30) days from the date of the
Redemption Notice (the "Redemption Date") and (ii) the number of shares to be
redeemed. If fewer than all of the outstanding Shares of Series G Preferred
Stock are to be redeemed, such Shares of Series G Preferred Stock shall be
redeemed on a pro rata basis among the holders of record of outstanding Shares
of Series G Preferred Stock.
(b) Redemption Price. The redemption price for each Share of Series G
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Preferred Stock shall be the Liquidation Value per Share, plus an amount that
would result in an aggregate 25% compounded annual return on such Liquidation
Value to the date of redemption after giving effect to all dividends paid on
such Share through the Redemption Date (the "Redemption Price").
(c) Redemption Procedure. Unless default is made in the payment of
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the Redemption Price, all rights of the holders of such Shares as stockholders
of the Corporation by reason of the ownership of the respective Shares shall
cease at the close of business on the Redemption Date, except the right to
receive payment in full of the Redemption Price of such Shares on presentation
and surrender of the certificate or certificates for such Shares, and after the
Redemption Date such Shares shall not be deemed to be outstanding. In case less
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.
At its option, the Corporation may, on or prior to the Redemption
Date, deposit an amount equal to the aggregate Redemption Price of the Shares of
the Series G Preferred Stock to be redeemed with a bank or trust company (the
"Depositary"), having its principal office in the City of Pittsburgh,
Commonwealth of Pennsylvania, and designated by the Board of Directors, to be
held in trust by the Depositary, for the sole benefit of the holders of the
Series G Preferred Stock, for payment to the holders of such Shares then to be
redeemed. If such deposit is made and the funds so deposited are made
immediately available to the holders of the Shares of the Series G Preferred
Stock to be redeemed, the Corporation shall thereupon be released and discharged
(subject to the provisions of the next paragraph of this Section) from its
obligation to make payment of the Redemption Price of the Shares of Series G
Preferred Stock to be redeemed, and the holders of such Shares shall look only
to the Depositary for such payment.
Any funds deposited with the Depositary as aforesaid with respect to
payment of the Redemption Price of Shares of the Series G Preferred Stock
remaining unclaimed at the end of five (5) years from and after the Redemption
Date in respect of which such funds were deposited, shall be returned to the
Corporation forthwith; and thereafter the holders of Shares of the Series G
Preferred Stock redeemed on such Redemption Date shall look only to the
Corporation for the payment of the Redemption Price thereof. Any interest
accrued on any funds deposited with the Depositary shall belong to the
Corporation and shall be paid to it by the Depositary from time to time on
demand.
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On or after the Redemption Date, the holders of Shares of Series G
Preferred Stock which have been redeemed shall surrender their certificates
representing such Shares to the Corporation at its principal place of business
or as otherwise notified, and thereupon the Redemption Price of such Shares
shall be paid to the order of the holder of record of the Shares represented by
such certificate or certificates and each surrendered certificate shall be
cancelled, and such Shares shall be retired and shall not be reissued.
6. Voting.
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(a) Except as otherwise provided by the Delaware General Corporation
Law and in this Paragraph 6, the holders of Series G Preferred Stock shall have
no voting rights whatsoever.
(b) Without the consent of the holders of at least a majority of the
number of shares of Series G Preferred Stock at the time outstanding and
eligible to vote, given in person or by proxy, either in writing or at a meeting
called for the purpose at which the holders of Series G Preferred Stock shall
vote as a class, neither the Certificate of Incorporation nor this Certificate
of Designation relating to the Series G Preferred Stock shall be changed, nor
shall the Board of Directors take any action, so as to affect adversely the
rights and preferences of the Series G Preferred Stock as set forth herein.
(c) The holders of Series G Preferred Stock shall be entitled to vote
with the holders of common stock together as a single class on all matters
submitted for a vote of the holders of common stock that do not require a
separate class vote of the holders of common stock under the Corporation's
Certificate of Incorporation or applicable law, regulations or The Nasdaq Stock
Market rules. In such event, each holder of Series G Preferred Stock shall be
entitled to cast the number of votes, rounded to the nearest whole share, per
outstanding share of Series G Preferred Stock held by such holder determined by
dividing (i) the quotient of (A) the product of the Voting Percentage (as
defined) rounded to the fifth decimal place, multiplied by the number of shares
of common stock outstanding on the Issue Date divided by (B) the result of one
minus the Voting Percentage multiplied by (ii) the number of shares of Series G
Preferred Stock issued on the Issue Date. The "Voting Percentage" shall be
determined by dividing (i) the aggregate purchase price for the shares of Series
G Preferred Stock issued on the Issue Date (the "Aggregate Consideration") by
(ii) the greater of (A) the sum of the book value of the Corporation on the
Issue Date plus the Aggregate Consideration or (B) the sum of the market value
of the Corporation on the Issue Date plus the Aggregate Consideration. In the
event that the number of shares of outstanding common stock is changed by any
stock dividend, stock split or combination of shares at any time shares of
Series G Preferred Stock are outstanding, the number of votes per share of
Series G Preferred Stock will be proportionately adjusted. Notwithstanding the
foregoing, neither the aggregate voting percentage of the Series G Preferred
Stock nor the portion of the voting percentage allocated to any share of Series
G Preferred Stock may be increased.
7. Conversion.
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(a) Conversion Rights. Each holder of the Series G Preferred Stock
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will have the right to convert all or a portion of its Shares of Series G
Preferred Stock into common stock of the Corporation in accordance with this
paragraph 7 at any time prior to the Redemption Date.
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Until and including the first anniversary of the Issue Date, each share of
Series G Preferred Stock held by each holder may be converted into the number of
shares of common stock, rounded to the second decimal place, determined by
dividing the Liquidation Value of such Share by the lesser of (i) $1.75, (ii)
85% of the average closing price of the common stock as reported by The Nasdaq
Stock Market over the last five trading days prior to the Issue Date or (iii)
85% of the average closing price of the common stock as reported by The Nasdaq
Stock Market over the last five trading days prior to the date of the
conversion. After the first anniversary of the Issue Date, each share of Series
G Preferred Stock held by each holder may be converted into the number of shares
of common stock, rounded to the second decimal place, determined by dividing the
Liquidation Value of such Share by the lesser of (i) $1.75, (ii) 85% of the
average closing price of the common stock as reported by The Nasdaq Stock Market
over the last five trading days prior to the Issue Date or (iii) 85% of the
average closing price of the common stock as reported by The Nasdaq Stock Market
over the last five trading days prior to the first anniversary of the Issue
Date. Notwithstanding the foregoing, in no event shall the conversion price used
as the denominator in the foregoing calculations be less than $.35. Holders of
the Series G Preferred Stock who exercise the foregoing conversion right shall
have the right to receive in cash any accrued, but unpaid dividends. Only full
shares of Series G Preferred Stock may be converted into common stock. No
fractional shares of common stock shall be issued; instead a cash payment will
be made in lieu of the issuance of any fractional shares of common stock. Any
shares of Series G Preferred Stock which are not converted to common stock will
remain outstanding until so converted or until redeemed by the Corporation.
(b) Conversion Procedures. Any holder of Series G Preferred Stock
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wishing to exercise the foregoing conversion right shall give written notice
thereof to the Corporation (the "Conversion Notice"). Upon receipt of the
Conversion Notice, the Corporation shall set a date for the conversion of the
Series G Preferred Stock, which date shall be not more than thirty (30) days
from the date of the Conversion Notice (the "Conversion Date"). All rights of a
holder of the Series G Preferred Stock as a preferred stockholder of the
Corporation by reason of the ownership of Series G Preferred Shares being
converted shall cease at the close of business on the Conversion Date, except
the right to receive, on presentation and surrender of the certificate or
certificates for the Series G Preferred Stock being converted, the shares of
common stock into which the Series G Preferred Stock is converted and cash
payments, if any, in lieu of fractional shares, as provided for in the preceding
paragraph of this Paragraph 7, and after the Conversion Date such Shares shall
not be deemed to be outstanding. From and after the Conversion Date, the
holders of the converted Series G Preferred Stock shall have the rights of
common stockholders, including the right to one vote for each share of common
stock held by such holder or that such holder is entitled to receive upon
presentation and surrender of certificates for shares of Series G Preferred
Stock as provided for in the preceding sentence, but such holders shall have no
rights as preferred stockholders with respect to shares of Series G Preferred
Stock converted.
(c) Antidilution Provisions. In the event that the number of shares
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of outstanding common stock is changed by any stock dividend, stock split or
combination of shares at any time shares of Series G Preferred Stock are
outstanding, the number of shares of common stock that may be acquired upon
conversion of such outstanding Series G Preferred Stock in accordance with this
Paragraph 7 shall be proportionately adjusted. The conversion ratios for the
Series G Preferred Stock shall be adjusted on a weighted average basis in the
event of a dilutive issuance involving any sale of equity stock or stock
equivalents of the Corporation
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at a price below the greater of the conversion price of the Series G Preferred
Stock then in effect or 85% of the market value of the common stock. A "dilutive
issuance," however, will not include any: (i) grants of options under any
Corporation stock option plan that has been approved by the Corporation's Board
of Directors or any issuance of common stock as a result of the exercise of such
options, provided that the exercise price of any such option is not less than
the fair market value of the common stock on the date of the grant; (ii)
issuance of common stock upon the conversion of any shares of preferred stock of
the Corporation outstanding on the date investors' commitments to purchase
shares of the Series G Preferred Stock are accepted by the Corporation (the
"Subscription Date") or upon the conversion of any other convertible debt or
other convertible securities of the Corporation outstanding on the Subscription
Date; (iii) issuance of common stock upon the exercise of warrants outstanding
on the Subscription Date and of warrants to be issued to the holders of the
Series G Preferred Stock; (iv) issuance of Common Stock upon conversion of
shares of Series G Preferred Stock; (v) issuance of common stock in connection
with the acquisition by the Corporation of another business, or the stock or
assets of another company (including shares of common stock that may be issued
to pay any earn-out payments in connection with the acquisition); or (vi) firm
commitment underwritten public offering of the common stock that results in
gross proceeds to the Corporation of not less than $10,000,000.
8. Pre-Emptive Rights.
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(a) Grant of Rights. If at any time following the Issue Date, the
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Corporation proposes to sell any shares of its capital stock ("Capital Stock")
or options or rights to acquire any shares of Capital Stock or any securities
convertible into or exchangeable for Capital Stock ("Capital Stock
Equivalents"), the Corporation will first offer to each holder of Series G
Preferred Stock the right to purchase up to the number of shares of Capital
Stock (or in the case of a sale of Capital Stock Equivalents, such Capital Stock
Equivalents whose Underlying Shares (as defined) are) equal to the product of
(i) the number of shares of Capital Stock (or Underlying Shares with respect to
the Capital Stock Equivalents) proposed to be sold by the Corporation multiplied
by (ii) a fraction, the numerator of which is the number of shares of Series G
Preferred Stock held by the holder and the denominator of which is the total
number of shares of Series G Preferred Stock then outstanding, for the same
price and on the same economic terms as the securities are being offered in such
transaction. If noncash consideration is proposed to be received for the
securities, the price for purposes of the preceding sentence shall be the sum of
any cash to be received plus the fair market value of the noncash property to be
received, as determined in good faith by the Board of Directors of the
Corporation. For purposes of this Paragraph 8, "Underlying Shares" means shares
of Capital Stock issuable upon exercise, exchange or conversion of Capital Stock
Equivalents.
(b) Notice to Holders. The Corporation will cause to be given to each
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holder of Series G Preferred Stock a written notice directed to each holder
setting forth a description of the securities being offered, the price and other
economic terms at which the holder may purchase such securities and the
calculation made as to the number of securities that the holder has the right to
purchase, whereupon the holder shall have a period of ten (10) business days
from the date such notice is given to give written notice to the Corporation
that the holder desires to exercise the holder's right to purchase the
securities. Capital Stock or any Capital Stock Equivalents which have been
offered in accordance with this Paragraph 8 to the holders of Series G Preferred
Stock and with respect to which, within the applicable period specified above, a
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holder has not given notice to the Corporation that such holder desires to
exercise the holder's right to purchase, may thereafter, for a period not
exceeding nine months following the expiration of such period, be issued, sold
or subjected to rights or options to any other person at a price not less than
that at which they were offered to the declining holder of Series G Preferred
Stock. Any such securities not so issued, sold or subjected to rights or
options to others during such nine-month period will thereafter again be subject
to the first refusal rights provided for in this Paragraph 8.
(c) Exceptions. Anything in this Paragraph 8 to the contrary
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notwithstanding, the provisions of this Paragraph 8 shall not be applicable to
(i) grants of options under any Corporation stock option plan that has been
approved by the Corporation's Board of Directors or any issuance of Capital
Stock as a result of the exercise of such options, provided that the exercise
price of any such option is not less than the fair market value of the Capital
Stock on the date of the grant; (ii) issuance of Capital Stock upon the
conversion of any shares of preferred stock of the Corporation outstanding on
the Issue Date, including the Series G Preferred Stock, or upon the conversion
of any other convertible debt or other convertible securities of the Corporation
outstanding on the Issue Date; (iii) issuance of Capital Stock upon the exercise
of warrants outstanding on the Issue Date and of warrants to be issued to the
holders of the Series G Preferred Stock; (iv) issuance of Capital Stock in
connection with the acquisition by the Corporation of another business, or the
stock or assets of another company (including shares of Capital Stock that may
be issued to pay any earn-out payments in connection with the acquisition); (v)
a firm commitment underwritten public offering of Capital Stock that is
reasonably expected to result in gross proceeds to the Corporation of not less
than $10,000,000; (vi) the issuance of Capital Stock pursuant to the declaration
or payment of any dividend on the Capital Stock payable in shares of Capital
Stock; (vii) the issuance of Underlying Shares; or (viii) securities offered to
all holders of a particular class of outstanding Capital Stock on a pro rata
basis whether pursuant to an exchange offer or otherwise.
(d) Termination of Preemptive Rights. Anything in this Paragraph 8 to
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the contrary notwithstanding, the provisions of this Paragraph 8 shall terminate
and be of no force or effect on the earliest of (i) the first anniversary of the
Issue Date or (ii) with respect to any particular holder of Series G Preferred
Stock, such time as such holder shall have declined to exercise such holder's
preemptive rights in connection with two separate and distinct proposed sales,
with respect to which (a) the holder received notices in accordance with this
Paragraph 8 and (b) the Corporation sold the securities to other persons in
accordance with the terms set forth in such notices and in accordance with this
Paragraph 8.
ATTEST: ALLIN CORPORATION
/s/ Dean C. Praskach By: /s/ Richard W. Talarico
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Richard W. Talarico
Chairman and Chief Executive Officer
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