<PAGE> 1
Exhibit 3.01
CERTIFICATE OF DESIGNATION, POWERS
PREFERENCES AND RIGHTS OF THE SERIES
OF
PREFERRED STOCK
OF
FINANTRA CAPITAL, INC.
TO BE DESIGNATED
10% SERIES D CONVERTIBLE PREFERRED STOCK
Pursuant to Section 151(g) of the Delaware General Corporation Law, I,
the undersigned, Alyce Schreiber, being the Vice President and the Secretary of
Finantra Capital, Inc. (the "Company"), a Delaware corporation, DO HEREBY
CERTIFY that the following resolution was duly adopted by the Board of Directors
of the Company by unanimous written consent, and that said resolution has not be
rescinded or amended and is in full force and effect at the date hereof:
RESOLVED, that pursuant to authority expressly granted to and vested in
the Board of Directors by the provisions of the Certificate of Incorporation, as
amended to date, the Board of Directors hereby creates a series of Preferred
Stock of the Company, par value $.01 per share and having a stated value of
$1,000 per share, to be designated "10% Series D Cumulative Convertible
Preferred Stock" and to consist of Two Thousand (2,000) shares, and hereby fixes
the powers, designations, preferences and relative, participating, optional and
other rights of the shares of such series, and the qualifications, limitations,
or restrictions thereof (in addition to those provisions set forth in the
Certificate of Incorporation, as amended, which are applicable to the 10% Series
D Cumulative Convertible Preferred Stock), as follows:
Section 1. DESIGNATION, AMOUNT, PAR VALUE, STATED VALUE AND RANK. The
series of Preferred stock shall be designated as 10% Series D Cumulative
Convertible Preferred Stock (the "Series D Preferred Stock"), and the number of
shares so designated shall be 2,000 (which shall not be subject to increase
without the consent of the holders of the Series D Preferred Stock ("Holders").
Each share of Series D Preferred Stock shall have a par value $.01 per share and
a stated value of $1,000 per share (the "Stated Value").
The Series D Preferred Stock shall rank senior to the Junior Securities
(as defined below) and PARI PASU to the Series A 10% Redeemable Convertible
Preferred Stock of the Company, junior to the Series B Convertible Preferred
Stock of the Company and junior to the Series C 6% Cumulative Convertible
Preferred Stock issued and outstanding on the Original Issue Date as to
distributions and upon liquidation, dissolution or winding up.
Section 2. DIVIDENDS.
(a) AMOUNT OF DIVIDENDS. The Holders of Series D Preferred
Stock shall be entitled to receive, in preference to the Holders of Common Stock
or any other Junior Securities cumulative annual dividends at the annual rate of
10% of the Stated Value in cash for each share
<PAGE> 2
of Series D Preferred Stock held. Such dividends shall be payable as and when
declared by the Board of Directors out of the assets of the Company legally
available for payment thereof. Dividends shall be paid in cash. Dividends
payable to Holders of Series D Preferred Stock, as aforesaid, whether or not
declared by the Board of Directors, shall accumulate from and after the date of
original issuance of the Series D Preferred Stock and shall be pad quarterly in
arrears on the first business day of January, April, July and October in each
year (each, a "Dividend Date"), commencing on April 1, 2000. Dividends will be
payable to Holders of record as they appear on the stock books of the Company on
the record date, which will be the December 15, March, June 15 or September 15,
as the case may be, before the related Dividend Date. Dividends will be prorated
in any partial quarters where the shares are not held for an entire quarter.
(b) PAYMENT OF DIVIDENDS ON COMMON STOCK AND JUNIOR
SECURITIES. No Cash dividends may be paid, or funds set apart for payment, on
shares of any class of Junior Securities until all accumulated dividends on the
Series D Preferred Stock have been paid in full or declared and funds set apart
for payment thereof in full.
Section 3. VOTING RIGHTS. The Holders of Series D Preferred Stock shall
have no right to vote, except as otherwise required by Delaware law.
Section 4. LIQUIDATION. Upon any liquidation, dissolution or winding-up
of the Company, whether voluntary or involuntary (a "Liquidation"), the Holders
shall be entitled to receive out of the assets of the Company, whether such
assets are capital or surplus, for each share of Series D Preferred Stock an
amount equal to the Stated Value before any distribution or payment shall be
made to the Holders of any Junior Securities, and if the assets of the Company
shall be insufficient to pay in full such amounts, then the entire assets to be
distributed to the Holders of Series D Preferred Stock shall be distributed
among the Holders of Series D and E Preferred Stock ratably in accordance with
the respective amounts that would be payable on such shares if all amounts
payable thereon were paid in full. A sale, conveyance or disposition of all or
substantially all of the assets of the Company or the effectuation by the
Company of a transaction or series of related transactions in which more than
50% of the voting power of the Company is disposed of, or a consolidation or
merger of the Company with or into any other company or companies shall not be
treated as a liquidation, but instead shall be subject to the provisions of
Section 6(c)(vii). The Company shall mail written notice or any such
Liquidation, not less than 30 days prior to the payment dates stated therein, to
each record Holder of Series D Preferred Stock.
Section 5. CONVERSION.
(a) Each shares of Series D Preferred Stock shall be
convertible into shares of Common Stock at the Conversion Ratio (as defined in
Section 8) at the option of the Holder in whole or in part at any time after the
Original Issue Date. The Holders shall effect conversions by surrendering the
certificate or certificates representing the shares of Series D Preferred Stock
to be converted to the Company, together with the form of conversion notice
attached hereto as
2
<PAGE> 3
Exhibit "A" (the "Conversion Notice"). Each Conversion Notice shall specify the
number of shares of Series D Preferred Stock to be converted. The date on which
such conversion is to be effected shall be the date the Holder delivers such
Conversion Notice by facsimile (the "Conversion Date"). The Conversion Notice
once given, shall be irrevocable. If the Holder is converting less than all
shares of Series D Preferred Stock represented by the certificate or
certificates tendered by the Holder with the Conversion Notice, or if a
conversion hereunder cannot be effected in full for any reason, the Company
shall promptly deliver to such Holder, a certificate for such number of shares
as have not been converted.
(b) Not later than ten (10) Trading Days after any Conversion
Date, the Company will deliver to the applicable Holder by express courier (A) a
certificate or certificates which shall bear a restrictive legend and trading
restrictions representing the number of shares of Common Stock being acquired
upon the conversion of shares of the Series D Preferred Stock unless the
underlying shares have been registered pursuant to the Securities Act, and (B)
one or more underlying shares have been registered pursuant to the Securities
Act, and (B) one or more certificates representing the number of shares of
Series D Preferred Stock not converted. If in the case of any Conversion Notice
such certificate or certificates are not delivered to or as directed by the
applicable Holder by the tenth Trading Day after the Conversion Date (the
"Delivery Date"), the Holder shall be entitled by written notice to the Company
at any time on or before its receipt of such certificate or certificates
thereafter, to rescind such conversion, in which event the Company shall
immediately return the certificates representing the shares of Series D
Preferred Stock tendered for conversion, whereupon the Company and the Holder
shall each be restored to their respective positions immediately prior to the
delivery of such notice of revocation.
(c) CONVERSION PRICE: (i) The conversion price for each share
of Series D Preferred Stock (the "Conversion Price") in effect on any Conversion
Date shall be the sum of three Dollars ($3.00) per share of Finantra common
stock (the "Conversion Price"). Notwithstanding the foregoing, should the
Company authorize a stock split of the Company's Common Stock prior to the
Investor's conversion of the Investor's shares of Preferred Stock or any portion
thereof, the conversion price for each share of Series D Preferred Stock shall
be adjusted by a fraction of which the numerator shall be the number of shares
of Common Stock of the Company before such split and the denominator shall be
the number of shares outstanding after such split.
(ii) All calculations under this Section shall be
made to the nearest cent or the nearest
1/100th of a share, as the case may be.
(iii) In case the Company after the Original Issue
Date shall do any of the following (each, a
"Triggering Event") (a) consolidate with or
merge into any other Person and the Company
shall not be the continuing or surviving
Person of such consolidation or merger, or
(b) permit any other Person to consolidate
with or merge into the Company and the
Company shall be the continuing or surviving
3
<PAGE> 4
person but, in connection with such
consolidation or merger, any capital stock
of the Company shall be changed into or
exchanged for securities of any other Person
or cash or any other property, or (c)
transfer all or substantially all of its
properties or assets to any other Person, or
(d) effect a capital reorganization or
reclassification of its capital stock, the
Holders of the Series D Preferred Stock then
outstanding shall have the right thereafter
to convert such shares only into the shares
of stock and other securities, cash and
property receivable upon or deemed to be
held by Holders of Common Stock following
such Triggering Event, and the Holders of
the Series D Preferred Stock shall be
entitled upon such event to receive such
amount of securities, cash or property as
the shares of the Common Stock of the
Company into which such shares of Series D
Preferred Stock could have been converted
immediately prior to such Triggering Event
would have been entitled; PROVIDED, HOWEVER,
that each Holder shall have the option to
require the Company to redeemed, from funds
legally available therefore at the time of
such redemption, shares of Series D
Preferred Stock at a price equal to the
Stated Value of the shares of Series D
Preferred Stock to be redeemed, plus any and
all accumulated and unpaid dividends
thereon, (i) multiplied by the average Per
Share Market Value for the five Trading Days
immediately preceding (i) the effective
date, the date of the closing or the date of
the announcement, as the case may be, of the
Triggering Event triggering such redemption
right or (2) the date of payment in full by
the Company of the redemption price
hereunder, whichever is greater, and (ii)
divided by the Conversion Price calculated
on the date of the closing or the effective
date, as the case may be, of the Triggering
Event triggering such redemption right, as
the case may be. The entire redemption price
shall be paid in cash. If the Holder has
requested that the Company redeem shares of
Series D Preferred Stock pursuant to this
Section and the Company fails for any reason
to pay the redemption price, as calculated
pursuant to the immediately preceding
sentence, within twenty (2) Trading Days
after such notice is deemed delivered
pursuant to the preceding sentence, the
Company will pay interest on the redemption
price at a rate of 10% per annum, in cash to
such Holder, accruing from such twentieth
day until the redemption price and any
accrued interest thereon is paid in full
(which amount shall be paid as liquidated
damages and not as a penalty). The terms of
any such Triggering Event shall include such
terms as to continue to give the Holder of
Series D Preferred Stock the right to
receive the securities, cash or property set
forth in this Section upon any conversion
following such
4
<PAGE> 5
Triggering Event. This provision shall
similarly apply to successive Triggering
Events.
(iv) If the Company, at any time while any shares
of the Series D Preferred Stock are
outstanding, shall sell or issue additional
shares of Common Stock at a price per share
less than the Company's book value per share
on the date of issuance, excluding any
rights of holders of warrants, options, any
existing contractual obligations as of the
date hereof, or any series of convertible
Preferred Stock of the Company, which is
exchangeable into common shares of the
Company, the initial conversion price shall
be multiplied by a fraction of which the
denominator shall be the number of shares of
Common Stock outstanding on the date of
issuance of such shares, plus the number of
additional shares of Common Stock issued at
less than the number of shares of Common
Stock outstanding on the date of issuance of
such shares, plus the number of shares which
the aggregate of the below book offering
price of the total number of shares so
offered.
(d) MANDATORY CONVERSION. Commencing eighteen (18) months
following the Closing Date and on the anniversary date each twelve (12) months
thereafter (Conversion Date), should the closing market share price of the
Company's Common Shares have increased by an amount equal to twenty percent
(20%) on each Conversion Date, the Holder shall, within seven (7) days from the
expiration of the Conversion Date, convert twenty percent (20%) of the
Investor's original number of Series D Preferred Stock in the Company or the
Company's obligation for redemption as to that percentage of Shares shall
terminate and be of no further force and effect.
(i) Demand Registration Rights: In the event the
Holder converts the Investors shares of
Series D Preferred Stock into Common Shares
of the Company pursuant to this section, the
Holder shall be entitled to request the
Company to register the Common Shares
received upon conversion within sixty (60)
days of the conversion date at the expense
of the Company, unless said shares are
freely tradable pursuant to any exemption to
the Securities Act of 1933, or are the
subject of an effective registration
statement.
(e) If at any time conditions shall arise by reason of action
taken by the Company which in the opinion of the Board of Directors are not
adequately covered by the other provisions hereof and which might materially and
adversely affect the rights of the Holders of Series D Preferred Stock
(different than or distinguished from the effect generally on rights or Holders
of any class of the Company's capital stock) or if at any time any such
conditions are expected to arise by reason of any action contemplated by the
Company, the Company shall
5
<PAGE> 6
mail a written notice briefly describing the action contemplated and the
material effects of such action on the rights of the Holders of Series D
Preferred Stock at lease ten (10) calendar days prior to the effective date of
such action.
(f) The Company covenants that it will at all times reserve
and keep available out of its authorized and unissued Common Stock solely for
the purpose of issuance upon conversion of Series D Preferred Stock free from
preemptive rights be issuable upon the conversion of all outstanding shares of
Series D Preferred Stock. The Company covenants that all shares of Common Stock
that shall be so issuable shall, upon issue, be duly and validly authorized,
issued and fully paid, non-assessable and freely tradable.
(g) Upon a conversion hereunder the Company shall not be
required to issue stock certificates representing fractions of shares of Common
Stock, but may if otherwise permitted, make a cash payment in respect of any
final fraction of a share based on the Per Share Market Value at such time.
(h) The issuance of certificates for shares of Common Stock on
conversion of Series D Preferred Stock shall be made without charge to the
Holders thereof for any documentary stamp or similar taxes that may be payable
in respect of the issue or delivery of such certificate.
(i) Shares of Series D Preferred Stock converted into Common
Stock shall be canceled and shall have the status of authorized but unissued
shares of undesignated preferred stock.
(j) Any and all notices or other communications or deliveries
to be provided by the Holders of the Series D Preferred Stock hereunder,
including, without limitation, any Conversion Notice, shall be in writing and
delivered personally, by facsimile or sent by a nationally recognized overnight
courier service, address to the attention of the President and to the secretary
of the Company at the facsimile telephone number or address of the principal
place of business of the Company as set forth in the Purchase Agreement. Any and
all notices or other communications or deliveries to be provided by the Company
hereunder shall be in writing and delivered personally, by facsimile or sent by
a nationally recognized overnight courier service, addressed to each Holder of
Series D Preferred Stock at the facsimile telephone number of address of such
Holder appearing on the books of the Company, or if no such facsimile telephone
number or address appears, at the principal place of business of the Holder. Any
notice or other communication or deliveries hereunder shall be deemed given and
effective on the earlier of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 5:00 p.m., Broward County time, (ii) on any
date and earlier than 11:59 p.m., Broward County time, on such date, (iii)
receipt, if sent by a nationally recognized overnight courier services, or (iv)
actual receipt by the party to whom such notice is required to be given.
Section 6. OPTIONAL REDEMPTION.
6
<PAGE> 7
(a) REDEMPTION RIGHT. Notwithstanding the foregoing, if five
(5) years after the closing date the Common Stock of the Company has not be
converted by the Holder pursuant to Section 5 above, the Company shall upon the
written notice of the Holder redeem all of the shares of Series D Preferred
Stock then held by such Holder by paying to the Holder in cash a redemption
price equal to 200% of the Stated Value, together with any and all accumulated
and unpaid dividends thereof through the date of redemption (the "Redemption
Price"), of such Holder's shares of Series D Preferred Stock (the "Redemption
Election").
(b) MECHANICS OF REDEMPTION. If the Holder exercises the
Redemption Election, the Company shall redeem all of the Holder's shares of
Series D Preferred Stock and pay the Redemption Price within forty-five (45)
business days thereafter. If the Company shall fail to redeem all of the shares
of Series D Preferred Stock subject to the Redemption Election and pay the
entire Redemption Price, in addition to any remedy the applicable Holder may
have under law, this Certificate of Designation, the Purchase Agreement and the
Registration Rights Agreement, or otherwise, the applicable Redemption Price
payable in respect of such unredeemed shares of Series D Preferred Stock shall
bear interest at the rate of 15.0% per annum until such Redemption Price (and
any accrued interest thereon) is paid in full (which amount shall be paid as
liquidated damages and not as a penalty). Until the Company pays such unpaid
Redemption Price in full to the Holder, such Holder shall have the option, in
lieu of redemption but not in limitation of its rights to receive interest as
liquidated damages or any other remedy such Holder may have under law, this
Certificate of Designation, the Purchase Agreement and the Registration Rights
Agreement, or otherwise, to elect to convert the unredeemed shares of Series D
Preferred Stock at a conversion price.
Section 7. NO PREEMPTIVE RIGHTS. No Holder of Series D Preferred Stock
shall have any preemptive or preferential rights of subscription to any shares
of stock of the Company, of to options, warrants or other interests therein or
therefore, or to any obligations convertible into stock of the Company, issued
or sold, or any right of subscription to any thereof other than such, if any, as
the Board of Directors, in its discretion, from time to time may determine and
at such price or prices as the Board of Directors from time to time may fix
pursuant to the authority conferred by the Company's Certificate of
Incorporation.
Section 8. DEFINITIONS. For the purposes hereof, the following terms
shall have the following meanings:
"COMMON STOCK" means the common stock, $.01 par value per share, of the
Company and stock of any other class into which such shares may hereafter have
been reclassified or changed.
"CONVERSION RATIO" means, at any time, a fraction, of which the
numeration is the sum of the Stated Value plus any and all accumulated and
unpaid dividends, and of which the denominator is the Conversion Price at such
time.
7
<PAGE> 8
"JUNIOR SECURITIES" means the Common Stock and all other equity
securities of the Company which are junior in rights and liquidation preference
to the Series D Preferred Stock.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation System.
"ORIGINAL ISSUE DATE" shall mean the date the first issuance of any
shares of the Series D Preferred Stock regardless of the number of transfers of
any particular shares of Series D Preferred Stock regardless of the number of
certificates which may be issued to evidence such Series D Preferred Stock.
"PERSON" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company. government (or an agency or subdivision thereof)
or other entity of any kind.
"PURCHASE AGREEMENT" means the Securities Purchase Agreement, dated as
of the Original Issue Date, among the Company and the original Holders of the
Series D Preferred Stock.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Original Issue Date, by and among the Company and the
original Holders.
"TRADING DATE" means (a) a day on which the Common Stock is traded on
the NASDAQ Small Cap Market, the NASDAQ National Market or other registered
national stock exchange on which the Common Stock has been listed, or (b) if the
Common Stock is not listed on the NASDAQ Small Cap Market, the NASDAQ National
Market or other registered national stock exchange, a day on which the Common
Stock is traded in the over-the-counter market, as reported by the OTC Bulletin
Board, or (c) if the Common Stock is not quoted on the OTC Bulletin Board, a day
on which the Common Stock is quoted in the over-the-counter market as reported
by the National Quotation Bureau Incorporated (or any similar organization or
agency succeeding its functions of reporting prices); PROVIDED, HOWEVER, that in
the event that the Common Stock is not listed or quoted as set forth in (a), (b)
and (c) hereof, then Trading Day shall mean any day except Saturday, Sunday and
any day which shall be a legal holiday or a day on which banking institutions in
the State of Florida are authorized or required by law or other government
action to close.
"UNDERLYING SHARES" means the number of shares of Common Stock into
which the Shares are convertible in accordance with the terms hereof and the
Purchase Agreement.
IN WITNESS WHEREOF, we have subscribed this document on the date
indicated below and do hereby affirm, under the penalties of perjury, that the
statements contained therein have been examined by us and are true and correct.
Dated:
----------------
/s/ ALYCE SCHREIBER
-----------------------------------
ALYCE SCHREIBER, Vice President
/s/ ALYCE SCHREIBER
-----------------------------------
ALYCE SCHREIBER, Secretary
8
