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EXHIBIT 4.1
CORRECTED CERTIFICATE OF DESIGNATION
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
SYMPOSIUM CORPORATION
Pursuant to Section 151 and Section 103 of the
General Corporation Law of the State of Delaware
Symposium Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation,"
or the "Company"), filed a Certificate of Designation on June 9, 2000 (the
"Certificate of Designation"), which contained certain inaccuracies which the
Corporation hereby rectifies by filing this corrected Certificate of
Designation, which corrects and restates the Certificate of Designation pursuant
to Section 103(f) of the General Corporation Law of the State of Delaware.
The inaccuracies corrected by this corrected Certificate of
Designation are as follows: (i) the definition of "Permitted Dilutive Issuance"
in Section 1.1(s) failed to include the issuance of 10,000 Common Shares (as
hereinafter defined) identified in the schedules to the Securities Purchase
Agreement (as hereinafter defined) and certain warrants and Common Shares issued
or issuable to the Holder (as hereinafter defined); (ii) Section 6.5(a) failed
to state with sufficient clarity that it did not cover issuances of Common
Shares described in the parenthetical contained in clause (i)(B) of the first
sentence of Section 6.5(b); (iii) Section 6.5(b) failed to state with sufficient
clarity that certain issuances of Common Shares upon exercise of previously
issued options or warrants or conversion of previously issued convertible
securities did not constitute an "Issuance Event" as therein defined; and (iv)
Section 6.1(a) failed to state with sufficient clarity the date on which the
Series A Preferred Stock (as hereinafter defined) becomes convertible into
Common Shares.
Accordingly, the Certificate of Designation as corrected
hereby is hereby restated in its entirety as follows:
The Corporation hereby certifies that the following
resolutions were adopted by the Board of Directors of the Corporation on June 6,
2000 pursuant to authority of the Board of Directors as required by Section 151
of the General Corporation Law of the State of Delaware:
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of this Corporation (the "Board of Directors" or the
"Board") in accordance with the provisions of its Certificate of Incorporation,
the Board of Directors hereby designates a series of the Corporation's Series A
Preferred Stock, par value $0.001 per share (the "Preferred Stock"), and hereby
authorizes the designation and number of shares, and fixes the relative rights,
preferences, privileges, powers and restrictions thereof as follows:
Series A Convertible Preferred Stock:
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ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. The terms defined in this Article whenever
used in this Certificate of Designation have the following respective meanings:
(a) "ADDITIONAL CAPITAL SHARES" has the meaning set forth in
Section 6.1(e).
(b) "AFFILIATE" has the meaning ascribed to such term in Rule
12b-2 under the Securities Exchange Act of 1934, as amended.
(c) "BUSINESS DAY" means a day other than Saturday, Sunday or
any day on which banks located in the State of New York are authorized or
obligated to close.
(d) "CAPITAL SHARES" means the Common Shares and any other
shares of any other class or series of capital stock, whether now or hereafter
authorized and however designated, which have the right to participate in the
distribution of earnings and assets (upon dissolution, liquidation or
winding-up) of the Corporation.
(e) "CLOSING DATE" means the date of the closing under the
Securities Purchase Agreement.
(f) "COMMON SHARES" or "COMMON STOCK" means shares of common
stock, $.001 par value, of the Corporation.
(g) "COMMON STOCK ISSUED AT CONVERSION" when used with
reference to the securities issuable upon conversion of the Series A Preferred
Stock, means all Common Shares now or hereafter Outstanding and securities of
any other class or series into which the Series A Preferred Stock hereafter
shall have been changed or substituted, whether now or hereafter created and
however designated.
(h) "CONVERSION DATE" means any day on which all or any
portion of shares of the Series A Preferred Stock are converted in accordance
with the provisions hereof.
(i) "CONVERSION NOTICE" has the meaning set forth in Section
6.2.
(j) "CONVERSION PRICE" means on any date of determination the
applicable price for the conversion of shares of Series A Preferred Stock into
Common Shares on such day as set forth in Section 6.1.
(k) "CONVERSION RATIO" means on any date of determination the
applicable percentage of the Market Price for conversion of shares of Series A
Preferred Stock into Common Shares on such date as set forth in Section 6.1.
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(l) "CORPORATION" means Symposium Corporation, a Delaware
corporation, and any successor or resulting corporation by way of merger,
consolidation, sale or exchange of all or substantially all of the Corporation's
assets, or otherwise.
(m) "CURRENT MARKET PRICE" means on any date of determination
the closing bid price of a Common Share on such day as reported on OTCBB;
provided, if such security bid is not listed or admitted to trading on OTCBB,
the closing bid price of a Common Share on such day as reported on the principal
national security exchange or quotation system on which such security is quoted
or listed or admitted to trading, or, if not quoted or listed or admitted to
trading on any national securities exchange or quotation system, the closing bid
price of such security on the over-the-counter market on the day in question as
reported by Bloomberg LP, or a similar generally accepted reporting service, as
the case may be.
(n) "DIVIDEND PAYMENT DUE DATE" and "Dividend Payment Due
Dates" has the meanings set forth in Section 4(a)(ii).
(o) "HOLDER" means The Shaar Fund Ltd., any successor thereto,
or any Person to whom the Series A Preferred Stock is subsequently transferred
in accordance with the provisions hereof and the Securities Purchase Agreement.
(p) "LIQUIDATION PREFERENCE" means, with respect to a share of
the Series A Preferred Stock, an amount equal to the sum of (i) the Stated Value
thereof, plus (ii) the aggregate of all accrued and unpaid dividends (whether or
not earned or declared, whether or not there were funds legally available for
the payment of dividends and whether or not a Dividend Payment Due Date has
occurred since the last dividend payment) on such share of Series A Preferred
Stock until the most recent Dividend Payment Due Date; provided that, in the
event of an actual liquidation, dissolution or winding up of the Corporation,
the amount referred to in clause (ii) above shall be calculated by including
accrued and unpaid dividends to the actual date of such liquidation, dissolution
or winding up, rather than to the Dividend Payment Due Date referred to above.
(q) "MARKET PRICE" per Common Share means the average of the
lowest, non-consecutive, three (3) days closing bid prices of the Common Shares
as reported on the OTC Bulletin Board service of the National Association of
Securities Dealers, Inc. ("OTCBB") during the 10 Trading Days immediately
preceding the Conversion Date, provided, if such security bid is not listed or
admitted to trading on OTCBB, as reported on the principal national security
exchange or quotation system on which such security is quoted or listed or
admitted to trading, or, if not quoted or listed or admitted to trading on any
national securities exchange or quotation system, the closing bid price of such
security on the over-the-counter market on the day in question as reported by
Bloomberg LP, or a similar generally accepted reporting service subject, in all
cases, to adjustment to reflect any stock-split or stock combination or reverse
stock split occurring during the period of calculation.
(r) "OUTSTANDING" when used with reference to Common Shares or
Capital Shares (collectively, "Shares"), means on any date of determination all
issued and outstanding Shares, and includes all such Shares issuable in respect
of outstanding scrip or any certificates
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representing fractional interests in such Shares; provided, however, that any
such Shares directly or indirectly owned or held by or for the account of the
Corporation or any Subsidiary of the Corporation shall not be deemed
"Outstanding" for purposes hereof.
(s) "PERMITTED DILUTIVE ISSUANCE" shall mean any one or more
of the following: (i) the issuance of Common Shares by the Corporation within
forty-five (45) days after the Closing Date in connection with a currently
contemplated $1.1 million private placement; (ii) the issuance of Common Shares
upon exercise of options or warrants that are outstanding or committed to be
issued on the Closing Date and listed on Schedule III A 1.1 or III A 1.2 to the
Securities Purchase Agreement (and pursuant to the terms in effect on the
Closing Date); (iii) the issuance of options pursuant to employee stock option
agreements or stock incentive plans of the Corporation as in effect from time to
time; (iv) the issuance of up to 1,000,000 Common Shares to RLP Holdings L.P.
("RLP") in satisfaction of the Company's obligation to purchase for $500,000 a
$500,000 principal amount promissory note issued by AmeriNet, Inc. to RLP; (v)
the adjustment of the exercise price or rate of options or warrants referred to
in clauses (ii) and (iii) above, or adjustments to the conversion price of
shares of Series B and C Preferred Stock (and/or the adjustment of the number of
Common Shares issuable upon exercise thereof), pursuant to contractual
anti-dilution provisions in effect as of the Closing Date providing for (A)
adjustments upon the occurrence of events such as stock splits, stock dividends,
reverse stock splits, recapitalizations, combinations and mergers, or (B) in the
case of options or warrants referred to in clauses (ii) or (iii) above (but not
in the case of shares of Series B Preferred Stock or Series C Preferred Stock),
weighted-average anti-dilution adjustments upon the issuance of Common Shares or
Common Shares Equivalents for consideration less than the applicable exercise
price of such options or warrants, provided that this clause (B) shall not
include any "ratchet" type anti-dilution adjustment (collectively, the
"Permitted Adjustments"); (vi) the issuance of Common Shares (A) upon exercise
of all options and warrants and referred to in clauses (ii) and (iii) above, in
each case in accordance with the terms of such options and warrants in effect as
of the Closing Date (with respect to options and warrants referred to in clause
(ii) above) or in effect as of the date of issuance (with respect to options
referred to pursuant to clause (iii) above), or (B) upon conversion of shares of
Series B Preferred Stock and Series C Preferred Stock, subject, in each case, to
Permitted Adjustments; (vii) the issuance of 10,000 Common Shares referred to in
the first paragraph of Schedule III K to the Securities Purchase Agreement; and
(viii) the issuance of warrants to the Holder pursuant to the Securities
Purchase Agreement and/or upon exercise of the option granted to the Holder
thereunder and the issuance of Common Shares upon exercise of such warrants.
(t) "PERSON" means an individual, a corporation, partnership,
an association, a limited liability company, unincorporated business
organization, a trust or other entity or organization, and any government or
political subdivision or any agency or instrumentality thereof.
(u) "REGISTRATION RIGHTS AGREEMENT" means that certain
Registration Rights Agreement dated the Closing Date between the Corporation and
The Shaar Fund Ltd.
(v) "SEC" means the United States Securities and Exchange
Commission.
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(w) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder, all as in effect
at the time.
(x) "SECURITIES PURCHASE AGREEMENT" means that certain
Securities Purchase Agreement dated the Closing Date between the Corporation and
The Shaar Fund Ltd.
(y) "SERIES A PREFERRED STOCK" means the Series A Convertible
Preferred Stock of the Corporation or such other convertible Preferred Stock
exchanged therefor as provided in Section 2.1.
(z) "STATED VALUE" has the meaning set forth in Article 2.
(aa) "SUBSIDIARY" means any entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are owned
directly or indirectly by the Corporation.
(bb) "TRADING DAY" means any day on which (a) purchases and
sales of securities authorized for quotation on the OTCBB are reported thereon,
(b) no event which results in a material suspension or limitation of trading of
the Common Shares on the OTCBB has occurred and (c) at least one bid for the
trading of Common Shares is reported on the OTCBB.
(cc) "VALUATION EVENT" has the meaning set forth in Section
6.1.
(dd) "VALUATION PERIOD" means the period of 20 Trading Days
immediately preceding the Conversion Date; provided, however, that if a
Valuation Event occurs during a Valuation Period on a date less than 5 Trading
Days before the Conversion Date, the Valuation Period shall be extended until
the date 5 Trading Days after the occurrence of the Valuation Event.
All references to "cash" or "$" herein means currency of the
United States of America.
ARTICLE 2
DESIGNATION AND AMOUNT
SECTION 2.1. The designation of this series, which consists of
50,625 shares of Preferred Stock, is Series A Convertible Preferred Stock (the
"Series A Preferred Stock") and the stated value shall be One Hundred Dollars
($100) per share (the "Stated Value").
ARTICLE 3
RANK
SECTION 3.1. The Series A Preferred Stock shall rank (i) prior
to the Common Stock; (ii) prior to the Corporation's Series B Convertible
Preferred Stock ("Series B Preferred Stock"); (iii) except as specifically
provided in Article 5 herein, prior to the Corporation's Series C Convertible
Preferred Stock ("Series C Preferred Stock"); and (iv) prior to any class or
series of capital stock of the Corporation hereafter created (collectively, with
the Common Stock, Series B Preferred Stock and Series C Preferred Stock, the
"Junior Securities").
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ARTICLE 4
DIVIDENDS
SECTION 4.1.
(a) (i) The Holder shall be entitled to receive, and the Board
of Directors shall be required to declare, out of funds legally available for
the payment of dividends, dividends at the rate of 10% per annum (computed on
the basis of a 360-day year) (the "Dividend Rate") on the Stated Value of each
share of Series A Preferred Stock on and as of the Dividend Payment Due Dates
(as hereinafter defined). Dividends on the Series A Preferred Stock shall be
cumulative from the date of issue, whether or not declared for any reason,
including if such declaration is prohibited under any outstanding indebtedness
or borrowings of the Corporation or any of its Subsidiaries, or any other
contractual provision binding on the Corporation or any of its Subsidiaries, and
whether or not there shall be funds legally available for the payment thereof.
(ii) Each dividend shall be payable at the
Corporation's option, in Common Stock or cash on a pro rata basis, semi-annually
on January 1st and July 1st of each year (the "Dividend Payment Due Dates").
Accrued and unpaid dividends may be declared and paid at any time, without
reference to any Dividend Payment Due Date, to holders of record on such date,
not more than 15 days preceding the payment date thereof, as may be fixed by the
Board of Directors.
(iii) At the option of the Corporation, the dividend
shall be paid in cash or through the issuance of duly and validly authorized and
issued, fully paid and non-assessable, freely tradable shares of the Common
Stock valued at the Conversion Price. The Common Stock to be issued in lieu of
cash payments shall be registered for resale in the Registration Statement (as
defined in the Registration Rights Agreement) to be filed by the Corporation to
register the Common Stock issuable upon conversion of the shares of Series A
Preferred Stock and exercise of the warrants (as defined in the Registration
Rights Agreement) as set forth in the Registration Rights Agreement.
Notwithstanding the foregoing, until such Registration Statement has been
declared effective under the Securities Act by the SEC, payment of dividends on
the Series A Preferred Stock shall be in cash.
(b) The Holder shall not be entitled to any dividends in
excess of the cumulative dividends, as herein provided, on the Series A
Preferred Stock. Except as provided in this Article 4, no interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Series A Preferred Stock that may be in arrears.
(c) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart for payment or
other distribution declared or made upon Junior Securities, nor shall any Junior
Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan (including a stock option
plan) of the Corporation or any Subsidiary) (all such dividends, distributions,
redemptions or purchases being hereinafter referred to as a "Junior Securities
Distribution") for any
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consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation, directly or
indirectly, unless in each case the full accrued and unpaid cumulative dividends
required to be paid on all outstanding shares of the Series A Preferred Stock
through the date of such Junior Securities Distribution shall have been paid or
set apart for payment with respect to the Series A Preferred Stock.; provided,
however, that the provisions of this subsection (c) shall not apply to the
redemption of the issued and outstanding shares of Series B Preferred Stock on
or prior to July 26, 2000.
ARTICLE 5
LIQUIDATION PREFERENCE; MERGERS, CONSOLIDATIONS, ETC.
SECTION 5.1. (a) In the event of a (i) liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
(ii) a sale or other disposition of all or substantially all of the assets of
the Corporation or (iii) a Fundamental Change (as hereinafter defined) wherein
the Holder of Series A Preferred Stock has elected such to be treated as a
Liquidation Event pursuant to Section 5.1(b)(x) (items (i), (ii) and (iii) of
this sentence being collectively referred to as a "Liquidation Event"), after
payment or provision for payment of debts and other liabilities of the
Corporation, the holders of the Series A Preferred Stock then outstanding shall
be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether such assets are capital, surplus, or
earnings, before any payment or declaration and setting apart for payment of any
amount shall be made in respect of any Junior Securities of the Corporation, the
Liquidation Preference with respect to each share of Series A Preferred Stock;
provided, however, that notwithstanding the foregoing, the Series C Preferred
Stock shall rank pari passu with the Series A Preferred Stock with respect to
any and all distributions on account of a Liquidation Event. If, upon the
occurrence of a Liquidation Event, the assets and funds available for
distribution among the holders of the Series A Preferred Stock and Series C
Preferred Stock shall be insufficient to permit the payment of such full
Liquidation Preference to the Holders of the Series A Preferred Stock and the
Series C Preferred Stock payable thereon, then the entire assets and funds of
the Corporation legally available for distribution to the Series A Preferred
Stock and Series C Preferred Stock shall be distributed to the holders thereof,
pro rata among such holders.
(b) In case the Corporation shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another Person
(in any such case where the Corporation is not the survivor), sell, convey,
transfer or otherwise dispose of all or substantially all its property, assets
or business to another Person, or effectuate a transaction or series of related
transactions in which more than 50% of the voting power of the Corporation is
disposed of (each, a "Fundamental Corporate Change") and, pursuant to the terms
of such Fundamental Corporate Change, shares of common stock of the successor or
acquiring corporation, or any cash, shares of stock or other securities or
property of any nature whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of the successor or
acquiring corporation ("Other Property"), are to be received by or distributed
to the holders of Common Stock of the Corporation, then each Holder of Series A
Preferred Stock shall have the right thereafter, at its sole option, either (x)
to require the Corporation to deem such Fundamental Corporate Change to be a
liquidation, dissolution or winding up of the Corporation pursuant to which the
Corporation shall be required to distribute, upon consummation of and as a
condition to, such Fundamental Corporate Change an amount equal to 100% of the
Liquidation
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Preference with respect to each outstanding share of Series A Preferred Stock in
accordance with Section 5.1(a) hereof, (y) to receive the number of shares of
common stock of the successor or acquiring corporation or of the Corporation, if
it is the surviving corporation, and Other Property as is receivable upon or as
a result of such Fundamental Corporate Change by a holder of the number of
shares of Common Stock into which such Series A Preferred Stock may be converted
at the Conversion Price applicable immediately prior to such Fundamental
Corporate Change or (z) require the Corporation, or such successor, resulting or
purchasing corporation, as the case may be, to, without benefit of any
additional consideration therefor, to execute and deliver to the Holder shares
of its Preferred Stock with substantial identical rights, preferences,
privileges, powers, restrictions and other terms as the Series A Preferred Stock
equal to the number of shares of Series A Preferred Stock held by such Holder
immediately prior to such Fundamental Corporate Change; provided, that all
Holders of Series A Preferred Stock shall be deemed to elect the option set
forth in clause (x) above if at least a majority in interest of such Holders
elect such option. For purposes of this Section 5(b), "common stock of the
successor or acquiring corporation" shall include stock of such corporation of
any class which is not preferred as to dividends or assets over any other class
of stock of such corporation and which is not subject to redemption and shall
also include any evidences of indebtedness, shares of stock or other securities
which are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the happening of a
specified event and any warrants or other rights to subscribe for or purchase
any such stock. The foregoing provisions of this Section 5(b) shall similarly
apply to successive Fundamental Corporate Changes.
ARTICLE 6
CONVERSION OF SERIES A PREFERRED STOCK
SECTION 6.1. Conversion; Conversion Price. (a) Subject to Section 6.6
hereof, at the option of the Holder, the shares of Series A Preferred Stock may
be converted, either in whole or in part, into Common Shares (calculated as to
each such conversion to the nearest 1/100th of a share), at any time, and from
time to time on or after the earliest of (i) the date which is seventy five (75)
days after the filing of the Registration Statement, (ii) the date on which the
Registration Statement becomes effective, or (iii) the date which is one hundred
thirty five (135) days after the Closing Date, at a Conversion Price per share
of Series A Preferred Stock equal to the lesser of: (x) one hundred and ten
percent (110%) of the closing bid price of the Common Shares on the Closing Date
(subject to adjustment for any stock-split or stock combination or reverse stock
split to occur after the date hereof), or (y) (a) one hundred three percent
(103%) of the Market Price if the Conversion Date is within the period
commencing on the Closing Date and ending on the date which is one hundred forty
nine days from the Closing Date (the "149th Day"), (b) one hundred percent
(100%) of the Market Price if the Conversion Date is within the period
commencing after the 149th Day and ending on the date which is one hundred
eighty days from the Closing Date (the "180th Day"), (c) ninety seven percent
(97%) of the Market Price if the Conversion Date is within the period commencing
after the 180th Day and ending on the date which is two hundred ten days from
the Closing Date (the "210th Day"), (d) ninety four percent (94%) of the Market
Price if the Conversion Date is within the period commencing after the 210th Day
and ending on the date which is two hundred seventy days from the Closing Date
(the "270th Day"), and (e) ninety one percent (91%) of the Market Price if the
Conversion Date is after the 270th Day.
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(b) Notwithstanding anything herein to the contrary, the
Holder shall not have the right, and the Company shall not have the obligation,
to convert all or any portion of the Series A Preferred Stock (and the Company
shall not have the right to pay dividends on the Series A Preferred Stock in
shares of Common Stock) if and to the extent that the issuance to the Holder of
shares of Common Stock upon such conversion (or payment of dividends) would
result in the Holder being deemed the "beneficial owner" of 5% or more of the
then outstanding shares of Common Stock within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, as amended, and the rules promulgated
thereunder; and
(c) Unless the Corporation shall have obtained the approval of
its voting stockholders to such issuance in accordance with the rules of the
NASDAQ or such other stock market with which the Corporation shall be required
to comply, the Corporation shall not issue shares of Common Stock (i) upon
conversion of any shares of Series A Preferred Stock or (ii) as a dividend on
the Series A Preferred Stock, if such issuance of Common Stock, when added to
the number of shares of Common Stock previously issued by the Corporation (i)
upon conversion of shares of the Series A Preferred Stock, (ii) upon exercise of
the Warrants issued pursuant to the terms of the Securities Purchase Agreement
and (iii) in payment of dividends on the Series A Preferred Stock, would be in
excess of 19.99% of the number of shares of the Corporation's Common Stock which
were issued and outstanding on the Conversion Date (the "Maximum Issuance
Amount"). In the event that a properly executed Conversion Notice is received by
the Corporation which would require the Corporation to issue shares of Common
Stock equal to or in excess of the Maximum Issuance Amount, the Corporation
shall honor such conversion request by (i) converting the number of shares of
Series A Preferred Stock stated in the Conversion Notice not in excess of the
Maximum Issuance Amount and (ii) at the Company's option (A) redeeming the
number of shares of Series A Preferred Stock stated in the Conversion Notice
equal to or in excess of the Maximum Issuance Amount in cash at a price equal to
one hundred and twenty-five percent (125%) of the Stated Value of the shares of
Series A Preferred Stock to be so redeemed, together with all accrued and unpaid
dividends thereon, or (B) obtaining such stockholder approval within 45 days of
the date on which the Corporation receives relevant Conversion Notice. If such
stockholder approval is not so obtained within such 45-day period, the Company
shall redeem the number of shares named in the relevant Conversion Notice in
excess of the Maximum Issuance Amount as described in clause (ii)(A) above. In
the event that the Corporation shall elect to pay a dividend in shares of Common
Stock which would require the Corporation to issue shares of Common Stock equal
to or in excess of the Maximum Issuance Amount, the Corporation shall pay (i) a
dividend in shares of Common Stock equal to one share less than an amount which
would result in the Corporation issuing shares equal to the Maximum Issuance
Amount and (ii) the balance of the dividend in cash.
Notwithstanding anything herein to the contrary, the Holder of the
Series A Preferred Stock may not exercise its right of conversion of such shares
with respect to any Conversion Notice: (i) during the period commencing on the
Closing Date and ending on the 180th Day if, on the subject Conversion Date, the
Current Market Price is less than $1.50 (subject to adjustment for any
stock-split or stock combination or reverse stock split to occur after the date
hereof), and (ii) during the period commencing after the 180th Day and ending on
the 270th Day if, on the subject Conversion Date, the Current Market Price is
less than $1.10 (subject to
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adjustment for any stock-split or stock combination or reverse stock split to
occur after the date hereof). The Holder of Series A Preferred Stock may
exercise its right of conversion after the 270th Day without applications of the
restrictions provided in the immediately preceding sentence.
The number of shares of Common Stock issuable upon conversion of Series
A Preferred Stock shall be (i) the number of shares of Series A Preferred Stock
to be converted (as stated in the conversion Notice but subject to Section 6.5
and Section 6.6), multiplied by (ii) the Stated Value and divided by (iii) the
applicable Conversion Price.
Within two Business Days of the occurrence of a Valuation Event (as
hereinafter defined) other than a Valuation Event pursuant to Subsection (l)
below, the Corporation shall send notice thereof to each Holder. Notwithstanding
anything to the contrary contained herein, if a Valuation Event occurs during
any Valuation Period, the Holder may convert some or all of its Series A
Preferred Stock, at its sole option, at a Conversion Price equal to the Current
Market Price on any Trading Day during the Valuation Period; provided, however,
that if any stock split or stock combination or reverse stock split occurs
during the Valuation Period, the Current Market Price on such day shall be
adjusted, if appropriate, to give effect thereto.
For purposes of this Section 6.1, a "Valuation Event" shall
mean an event in which the Corporation takes any of the following actions:
(a) subdivides or combines its Capital Shares;
(b) makes any distribution on its Capital Shares other than
dividends required to be paid on the Series A Preferred Stock, Series B
Preferred Stock, or Series C Preferred Stock;
(c) issues any additional Capital Shares (the "Additional
Capital Shares"), other than a Permitted Dilutive Issuance or pursuant to an
Issuance Event or Adjustment Event (both as defined in Section 6.5(b)), at a
price per share less, or for other consideration lower, than the Current Market
Price in effect immediately prior to such issuances or without consideration;
(d) except as provided in (c) above, issues any warrants,
options or other rights to subscribe for or purchase any Additional Capital
Shares if the price per share for which Additional Capital Shares may at any
time thereafter be issuable pursuant to such warrants, options or other rights
shall be less than the Current Market Price in effect immediately prior to such
issuance;
(e) except as provided in (c) above, issues any securities
convertible into or exchangeable or exercisable for Additional Capital Shares if
the consideration per share for which Additional Capital Shares may at any time
thereafter be issuable pursuant to the terms of such convertible, exchangeable
or exercisable securities shall be less than the Current Market Price in effect
immediately prior to such issuance;
(f) announces or effects a Fundamental Corporate Change
(except that if a Valuation Event has occurred as a result of the announcement
of a Fundamental Corporate
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Change, no Valuation Event shall be deemed to occur as a result of announced
Fundamental Corporate change becoming effective);
(g) makes any distribution of its assets or evidences of
indebtedness to the holders of its Capital Shares as a dividend in liquidation
or by way of return of capital or other than as a dividend payable out of
earnings or surplus legally available for the payment of dividends under
applicable law or any distribution to such holders made in respect of the sale
of all or substantially all of the Corporation's assets (other than under the
circumstances provided for in the foregoing Subsections a through e);
(h) takes any action affecting the number of Outstanding
Capital Shares, other than an action described in any of the foregoing
Subsections a through g hereof, inclusive, which in the opinion of the Holder,
determined in good faith, would have a material adverse effect upon the rights
of the Holder at the time of a conversion of the Preferred Stock or is
reasonably likely to result in a decrease in the Market Price, and the Holder so
notifies the Corporation within ten (10) days after the determination by the
Holder that a Valuation Event has occurred pursuant to this Subsection (h).
SECTION 6.2. Exercise of Conversion Privilege. (a) Conversion of the
Series A Preferred Stock may be exercised, in whole or in part, by the Holder by
telecopying an executed and completed notice of conversion in the form annexed
hereto as Annex I (the "Conversion Notice") to the Corporation. Each date on
which a Conversion Notice is telecopied to and received by the Corporation in
accordance with the provisions of this Section 6.2 shall constitute a Conversion
Date. The Corporation shall convert the Series A Preferred Stock and issue the
Common Stock Issued at Conversion effective as of the Conversion Date. The
Conversion Notice also shall state the name or names (with addresses) of the
Persons who are to become the holders of the Common Stock issued at Conversion
in connection with such conversion. The Holder shall deliver certificates
representing the shares of Series A Preferred Stock (or, if such Certificates
have been lost, stolen or destroyed, an affidavit of loss and indemnity
reasonably satisfactory to the corporation) to the Corporation by express
courier within 30 days following the date on which the telecopied Conversion
Notice has been transmitted to the Corporation. Upon surrender for conversion,
the Series A Preferred Stock shall be accompanied by a proper assignment thereof
to the Corporation or be endorsed in blank. As promptly as practicable after the
receipt of the Conversion Notice as aforesaid, but in any event not more than
five Business Days after the Corporation's receipt of such Conversion Notice,
the Corporation shall (i) issue the Common Stock Issued at Conversion in
accordance with the provisions of this Article 6, and (ii) cause to be mailed
for delivery by overnight courier to the Holder (X) a certificate or
certificate(s) representing the number of Common Shares to which the Holder is
entitled by virtue of such conversion, (Y) cash, as provided in Section 6.3, in
respect of any fraction of a Share issuable upon such conversion and (Z) cash or
shares in the amount of accrued and unpaid related dividends as of the
Conversion Date. Such conversion shall be deemed to have been effected at the
time at which the Conversion Notice indicates and at such time the rights of the
Holder of the Series A Preferred Stock, as such, shall cease and the Person and
Persons in whose name or names the Common Stock Issued at Conversion shall be
issuable shall be deemed to have become the holder or holders of record of the
Common Shares represented thereby. The Conversion Notice shall constitute a
contract between the Holder and the Corporation, whereby
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the Holder shall be deemed to subscribe for the number of Common Shares which it
will be entitled to receive upon such conversion and, in payment and
satisfaction of such subscription (and for any cash adjustment to which it is
entitled pursuant to Section 6.4), to surrender the Series A Preferred Stock (or
affidavit of theft or loss with indemnity) and to release the Corporation from
all liability thereon. The Holder shall be liable to the Corporation for damages
in the event it fails to deliver the Series A Preferred Stock (or affidavit of
loss or theft with indemnity) upon conversion pursuant to this Section 6.2(a).
No cash payment aggregating less than $1.00 shall be required to be given unless
specifically requested by the Holder.
(b) Subject to Sections 6.1(a) and (b) if, at any time (i) the
Corporation challenges, disputes or denies the right of the Holder hereof to
effect the conversion of the Preferred Stock into Common Shares or otherwise
dishonors or rejects any Conversion Notice delivered in accordance with this
Section 6.2 (other then in accordance with the express provisions of Section 6.1
hereof) or (ii) any third party who is not and has never been an Affiliate of
the Holder commences any lawsuit or proceeding or otherwise asserts any claim
before any court or public or governmental authority which seeks to challenge,
deny, enjoin, limit, modify, delay or dispute the right of the Holder hereof to
effect the conversion of the Preferred Stock into Common Shares, then the Holder
shall have the right, by written notice to the Corporation, to require the
Corporation to promptly redeem the Series A Preferred Stock for cash at a
redemption price equal to one hundred twenty percent (120%) of the Stated Value
thereof together with all accrued and unpaid dividends thereon (the "Mandatory
Purchase Amount"). Under any of the circumstances set forth above in which the
Holder is entitled to require the corporation to redeem shares of the Series A
Preferred Stock, the Corporation shall be responsible for the payment of all
reasonable costs and expenses of the Holder, including reasonable legal fees and
expenses, as and when incurred in disputing any such action or pursuing its
rights hereunder (in addition to any other rights of the Holder).
SECTION 6.3. Fractional Shares. No fractional Common Shares or scrip
representing fractional Common Shares shall be issued upon conversion of the
Series A Preferred Stock. Instead of any fractional Common Shares which
otherwise would be issuable upon conversion of the Series A Preferred Stock, the
Corporation shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction. No cash payment of less than $1.00 shall be required
to be given unless specifically requested by the Holder.
SECTION 6.4. Reclassification, Consolidation, Merger or Mandatory Share
Exchange. At any time while the Series A Preferred Stock remains outstanding and
any shares thereof have not been converted, in case of any reclassification or
change of Outstanding Common Shares issuable upon conversion of the Series A
Preferred Stock (other than a change in par value, or from par value to no par
value per share, or from no par value per share to par value or as a result of a
subdivision or combination of outstanding securities issuable upon conversion of
the Series A Preferred Stock) or in case of any consolidation, merger or
mandatory share exchange of the Corporation with or into another corporation
(other than a merger or mandatory share exchange with another corporation in
which the Corporation is a continuing corporation and which does not result in
any reclassification or change, other than a change in par value, or from par
value to no par value per share, or from no par value per share to par value, or
as a result of a subdivision or combination of Outstanding Common Shares upon
conversion of the Series A Preferred Stock), or in the case of any sale or
transfer to another corporation of the property of the Corporation as an
entirety or substantially as an entirety, the Corporation, or such successor,
resulting or purchasing corporation, as the case may be, shall, without payment
of any additional consideration therefore, execute a new Series A Preferred
Stock providing that the Holder shall have the right to convert such new Series
A Preferred Stock (upon terms and conditions not less favorable to the Holder
than those in effect pursuant to the Series A Preferred
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Stock) and to receive upon such exercise, in lieu of each Common Share
theretofore issuable upon conversion of the Series A Preferred Stock, the kind
and amount of shares of stock, other securities, money or property receivable
upon such reclassification, change, consolidation, merger, mandatory share
exchange, sale or transfer by the holder of one Common Share issuable upon
conversion of the Series A Preferred Stock had the Series A Preferred Stock been
converted immediately prior to such reclassification, change, consolidation,
merger, mandatory share exchange or sale or transfer. The provisions of this
Section 6.4(a) shall similarly apply to successive reclassifications, changes,
consolidations, mergers, mandatory share exchanges and sales and transfers but
shall not apply to any Liquidation Event within the meaning of Section 5.1. Upon
the occurrence of any such Liquidation Event, Section 5.1 shall govern.
SECTION 6.5. Adjustments to Conversion Ratio. (a) Except with respect
to Permitted Dilutive Issuances and/or issuances and sales governed by Section
6.5(b) below (including such issuances described in the parenthetical contained
in clause (i)(B) of the first sentence of Section 6.5(b) hereof), so long as any
shares of the Series A Preferred Stock are outstanding, if the Corporation
issues and sells pursuant to an exemption from registration under the Securities
Act (A) Common Shares at a purchase price that is lower than the Conversion
Price on the date of issuance of such Common Shares, (B) warrants or options
with an exercise price on the date of issuance thereof that is lower than the
Conversion Price for the Holder on such date, or (C) convertible, exchangeable
or exercisable securities with a right to convert or exchange at lower than the
Conversion Price on the date of issuance or conversion, as applicable, of such
convertible, exchangeable or exercisable securities, then the Conversion Price
shall be reduced to equal the lowest of the Conversion Price provided in Section
6.1 or any such purchase price, exercise price or exchange price, and the number
of shares of Common Stock into which the Series A Preferred Stock is convertible
pursuant to the sixth paragraph of Section 6.1 shall be correspondingly
adjusted. Notwithstanding the foregoing, if an adjustment is made upon issuance
of warrants, options or convertible, exercisable or exchangeable securities
pursuant to clause (B) or (C) above, no further adjustment pursuant to clause
(A) shall be made upon issuance of Common Shares upon exercise, conversion or
exchange thereof.
(b) Notwithstanding anything to the contrary herein, if at any time,
other than pursuant to a Permitted Dilutive Issuance, the Company (i) (A) issues
to the holders of the Company's Series B Preferred Stock or Series C Preferred
Stock warrants or options to purchase Common Shares, or securities convertible
into or exchangeable for Common Shares, in any such case, at an exercise or
conversion price less than the Conversion Price then in effect, or (B) issues
and sells to such holders additional Common Shares (other than upon exercise of
previously issued options or warrants or conversion of previously issued
convertible securities (x) pursuant to the terms in effect on the Closing Date
or as such terms may be adjusted subsequent to the Closing Date pursuant to an
Adjustment Event (as hereinafter defined), or (y) pursuant to an Issuance Event
of the type described in clause (i)(A) above pursuant to the terms in effect at
the time of
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<PAGE> 14
such Issuance Event or as such terms may be adjusted subsequent to the time of
such Issuance Event pursuant to an Adjustment Event) at a purchase price that is
lower than the Conversion Price then in effect (each, an "Issuance Event"), or
(ii) adjusts the exercise price of warrants or options, or the conversion price
of convertible securities, previously issued to the holders of the Company's
Series B Preferred Stock or Series C Preferred Stock to a price less than the
Conversion Price then in effect (an "Adjustment Event"), then, from and after
the date of such Issuance Event or Adjustment Event, the Conversion Price shall
be reduced to equal lowest of the Conversion Price provided in Section 6.1 or
the exercise price of the warrants or options, the conversion price of the
convertible securities or the purchase price of the Common Shares issued
pursuant to such Issuance Event or the exercise price of previously issued
warrants or options or previously issued convertible securities as adjusted
pursuant to such Adjustment Event, as the case may be, and the number of Common
Shares into which the Series A Preferred Stock is convertible pursuant to
Section 6.1(a) will be correspondingly adjusted; provided, however, that no
reduction of the Conversion Price shall be made pursuant to this Section 6.5(b)
as a result of the occurrence of any Issuance Event or Adjustment Event unless
the aggregate number of additional fully diluted Common Shares resulting from
such Issuance Event or Adjustment Event, as the case may be, and any previous
Issuance Events or Adjustment Events occurring on or after the Closing Date (in
each case calculated in accordance with the next sentence) exceeds 5,000,000,
subject to adjustment for any stock-split or stock combination or reverse stock
split occurring after the Closing Date (the "Threshold Amount"). Shares counting
toward the Threshold Amount shall consist of: (i) in the case of an Issuance
Event involving the issuance of options, warrants or convertible securities, all
Common Shares issuable upon exercise of such options or warrants or upon
conversion of such convertible securities; (ii) in the case of an Issuance Event
involving the issuance and sale of Common Shares, all Common Shares issued and
sold; and (iii) in the case of an Adjustment Event, a number of Common Shares
equal to the difference obtained by subtracting (x) the number of Common Shares
issuable upon exercise of the options or warrants or upon conversion of the
convertible securities subject to such Adjustment Event, before giving effect to
such Adjustment Event from (y) the number of Common Shares issuable upon
exercise of such options or warrants, or conversion of such convertible
securities, after giving effect to such Adjustment Event. Upon reaching the
Threshold Amount, the Conversion Price shall be the lesser of: (A) the
Conversion Price provided in Section 6.1, (B) price at which any Common Shares
were sold, or the exercise or conversion price of any options, warrants or
convertible securities issued, pursuant to any Issuance Event or (C) adjusted
exercise or conversion price of any options, warrants or convertible securities
subject to any Adjustment Event, provided that for purposes of making such
determination, only the second 2,500,000 shares (the "Determination Shares")
counting toward the Threshold Amount shall be considered, and provided, further,
that, if the Determination Shares include any Common Shares, options, warrants
or convertible securities issued for nominal consideration or for consideration
consisting of an agreement to modify or release certain claims or contractual
rights or other similar agreement to which no monetary valuation is assigned,
then such Common Shares, options, warrants or convertible securities (the
"Excluded Shares") shall not be considered Determination Shares for purposes of
making such adjustment, but, the Company shall, concurrently with such
adjustment, issue and sell to the Holder, at a price equal to the par value of
such shares, a number of Common Shares equal to the number of Common Shares into
which the Series A Preferred Shares owned by such Holder are convertible
immediately prior to such adjustment multiplied by a fraction the numerator of
which
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is the number of Excluded Shares and the denominator of which is 2,500,000
(subject to adjustment in each case for any stock-split or stock combination or
reverse stock split occurring after the Closing Date).
SECTION 6.6. Optional Redemption Under Certain Circumstances. At
anytime after sixty (60) days from the date of issuance of the Series A
Preferred Stock, the Corporation, upon notice delivered to the Holder as
provided in Section 6.7, may redeem, for cash all, but not less than all, of the
Series A Preferred Stock (but only with respect to such Preferred Stock which
was not, or is not, converted to Common Stock prior to the close of business on
the date preceding the date of the notice of redemption given pursuant to
Section 6.7), at one hundred percent (100%) of the Stated Value thereof (the
"Optional Redemption Price"), together with all accrued and unpaid dividends
thereon to the date of redemption (the "Redemption Date"), provided, however,
that the Corporation's may not redeem any Series A Preferred Stock under this
Section 6.6 if, on the date of the notice of redemption the average of the
closing ask price of the Common Stock during the twenty Trading Day period prior
to said date is equal to or greater than $5.00 (subject to adjustment for any
stock-split or stock combination or reverse stock split to occur after the
date). Except as set forth in this Section 6.6, the Corporation shall not have
the right to prepay or redeem the Series A Preferred Stock. Upon issuing a
notice of redemption as provided in Section 6.7 below, the Corporation shall be
contractually bound to redeem the Series A Preferred Stock pursuant to the terms
hereof and the Holder may not convert such Series A Preferred Stock except
pursuant to the next sentence. If the Corporation thereafter defaults or
otherwise breaches its obligation to redeem the Series A Preferred Stock, the
holder may, at its election, (i) seek damages from the Corporation, or (ii)
convert the Series A Preferred Stock into Common Stock pursuant to the terms
hereof, provided, however, that the Holder may select any date within the sixty
day period prior to, or the thirty day period after, the Redemption Date as the
Conversion Price.
SECTION 6.7. Notice of Redemption. Notice of redemption pursuant to
Section 6.6 shall be provided by the Corporation to the Holder in writing (by
telecopy, registered mail or overnight courier at the Holder's last address
appearing in the Corporation's security registry) not less than sixty (60) days
nor more than ninety (90) days prior to the Redemption Date, which notice shall
specify the Redemption Date and refer to Section 6.6 (including, a statement of
the Market Price per Common Share) and this Section 6.7.
SECTION 6.8. Surrender of Preferred Stock. Upon any redemption of the
Series A Preferred Stock pursuant to Sections 6.6 or 6.7, the Holder shall
either deliver the Series A Preferred Stock by hand to the Corporation at its
principal executive offices or surrender the same to the Corporation at such
address by express courier. Payment of the Optional Redemption Price specified
in Section 6.6 shall be made by the Corporation to the Holder against receipt of
the Series A Preferred Stock (as provided in this Section 6.8) by wire transfer
of immediately available funds to such account(s) as the Holder shall specify to
the Corporation. If payment of such redemption price is not made in full by the
Redemption Date (other than as a result of the failure of the Holder to
surrender the certificate evidencing the Series A Preferred Stock (or an
appropriate affidavit of lost certificate with indemnity) to the Corporation,
then the Holder shall again have the right to convert the Series A Preferred
Stock as provided in Article 6 hereof.
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ARTICLE 7
VOTING RIGHTS
The Holders of the Series A Preferred Stock have no voting power,
except as otherwise provided by the General Corporation Law of the State of
Delaware ("DGCL"), in this Article 7, and in Article 8 below.
Notwithstanding the above, the Corporation shall provide each Holder of
Series A Preferred Stock with prior notification of any meeting of the
shareholders (and copies of proxy materials and other information sent to
shareholders). In the event of any taking by the Corporation of a record of its
shareholders for the purpose of determining shareholders who are entitled to
receive payment of any dividend or other distribution, any right to subscribe
for, purchase or otherwise acquire (including by way of merger, consolidation or
recapitalization) any share of any class or any other securities or property, or
to receive any other right, or for the purpose of determining shareholders who
are entitled to vote in connection with any proposed liquidation, dissolution or
winding up of the Corporation, the Corporation shall mail a notice to each
Holder, at least thirty (30) days prior to the consummation of the transaction
or event, whichever is earlier), of the date on which any such acting is to be
taken for the purpose of such dividend, distribution, right or other event, and
a brief statement regarding the amount and character of such dividend,
distribution, right or other event to the extent known at such time.
To the extent that under the DGCL the vote of the Holders of the Series
A Preferred Stock, voting separately as a class or series as applicable, is
required to authorize a given action of the Corporation, the affirmative vote or
consent of the Holders of at least a majority of the shares of the Series A
Preferred Stock represented at a duly held meeting at which a quorum is present
or by written consent of a majority of the shares of Series A Preferred Stock
(except as otherwise may be required under the DGCL) shall constitute the
approval of such action by the class. To the extent that under the DGCL Holders
of the Series A Preferred Stock are entitled to vote on a matter with holders of
Common Stock, voting together as one class, each share of Series A Preferred
Stock shall be entitled to a number of votes equal to the number of shares of
Common Stock into which it is then convertible using the record date for the
taking of such vote of shareholders as the date as of which the Conversion Price
is calculated. Holders of the Series A Preferred Stock shall be entitled to
notice of all shareholder meetings or written consents (and copies of proxy
materials and other information sent to shareholders) with respect to which they
would be entitled to vote, which notice would be provided pursuant to the
Corporation's bylaws and the DGCL.
ARTICLE 8
PROTECTIVE PROVISIONS
So long as shares of Series A Preferred Stock are outstanding, the
Corporation shall not, without first obtaining the approval (by vote or written
consent, as provided by the DGCL) of the Holders of at least a majority of the
then outstanding shares of Series A Preferred Stock:
(a) alter or change the rights, preferences or privileges of
the Series A Preferred Stock;
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(b) create any new class or series of capital stock having a
preference over, or being pari passu with, the Series A Preferred Stock as to
distribution of assets upon liquidation, dissolution or winding up of the
Corporation or alter or change the rights, preferences or privileges of any of
the Corporation's securities so as to affect adversely the Series A Preferred
Stock;
(c) increase the authorized number of shares of Series A
Preferred Stock; or
(d) do any act or thing not authorized or contemplated by this
Certificate of Designation which would result in taxation of the holders of
shares of the Series A Preferred Stock under Section 305 of the Internal Revenue
Code of 1986, as amended (or any comparable provision of the Internal Revenue
Code as hereafter from time to time amended).
In the event Holders of at least a majority of the then outstanding
shares of Series A Preferred Stock agree to allow the Corporation to alter or
change the rights, preferences or privileges of the shares of Series A Preferred
Stock, pursuant to subsection (a) above, so as to affect the Series A Preferred
Stock, then the Corporation will deliver notice of such approved change to the
Holders of the Series A Preferred Stock that did not agree to such alteration or
change (the "Dissenting Holders") and Dissenting Holders shall have the right
for a period of thirty (30) days to convert pursuant to the terms of this
Certificate of Designation as they exist prior to such alteration or change or
continue to hold their shares of Series A Preferred Stock.
The Corporation shall not issue any shares of Series A Preferred Stock
to any Person other than the Holder or its permitted assigns.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. Loss, Theft, Destruction of Preferred Stock. Upon receipt
of evidence satisfactory to the Corporation of the loss, theft, destruction or
mutilation of shares of Series A Preferred Stock and, in the case of any such
loss, theft or destruction, upon receipt of indemnity or security reasonably
satisfactory to the Corporation, or, in the case of any such mutilation, upon
surrender and cancellation of the Series A Preferred Stock, the Corporation
shall make, issue and deliver, in lieu of such lost, stolen, destroyed or
mutilated shares of Series A Preferred Stock, new shares of Series A Preferred
Stock of like tenor. The Series A Preferred Stock shall be held and owned upon
the express condition that the provisions of this Section 9.1 are exclusive with
respect to the replacement of mutilated, destroyed, lost or stolen shares of
Series A Preferred Stock and shall preclude any and all other rights and
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement of negotiable instruments or other
securities without the surrender thereof.
SECTION 9.2. Who Deemed Absolute Owner. The Corporation may deem the
Person in whose name the Series A Preferred Stock shall be registered upon the
registry books of the Corporation to be, and may treat it as, the absolute owner
of the Series A Preferred Stock for the purpose of receiving payment of
dividends on the Series A Preferred Stock, for the conversion of
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the Series A Preferred Stock and for all other purposes, and the Corporation
shall not be affected by any notice to the contrary. All such payments and such
conversion shall be valid and effectual to satisfy and discharge the liability
upon the Series A Preferred Stock to the extent of the sum or sums so paid or
the conversion so made.
SECTION 9.3. Notice of Certain Events. In the case of the occurrence of
a Fundamental Corporate Change or any event described in Sections 6.1, 6.6 or
6.7 of this Certificate of Designation, the Corporation shall cause to be mailed
to the Holder of the Series A Preferred Stock at its last address as it appears
in the Corporation's security registry, at least twenty (20) days prior to the
applicable record, effective or expiration date hereinafter specified (or, if
such twenty (20) days notice is not possible, at the earliest possible date
prior to any such record, effective or expiration date), a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, issuance or granting of rights, options or warrants, or if a
record is not to be taken, the date as of which the holders of record of Series
A Preferred Stock to be entitled to such dividend, distribution, issuance or
granting of rights, options or warrants are to be determined or (y) the date on
which such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up is expected to become effective, and the date as of
which it is expected that holders of record of Series A Preferred Stock will be
entitled to exchange their shares for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale transfer,
dissolution, liquidation or winding-up.
SECTION 9.4. Register. The Corporation shall keep at its principal
office a register in which the Corporation shall provide for the registration of
the Series A Preferred Stock. Upon any transfer of the Series A Preferred Stock
in accordance with the provisions hereof, the Corporation shall register such
transfer on the Series A Preferred Stock register.
SECTION 9.5. Withholding. To the extent required by applicable law, the
Corporation may withhold amounts for or on account of any taxes imposed or
levied by or on behalf of any taxing authority in the United States having
jurisdiction over the Corporation from any payments made pursuant to the Series
A Preferred Stock.
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SECTION 9.6. Headings. The headings of the Articles and Sections of
this Certificate of Designation are inserted for convenience only and do not
constitute a part of this Certificate of Designation.
IN WITNESS WHEREOF, the Corporation has caused this Corrected
Certificate of Designation to be signed by its duly authorized officer on this 1
day of August, 2000
SYMPOSIUM CORPORATION
By: /s/ Ronald Altbach
------------------
Ronald Altbach,
Chairman and Chief Executive Officer
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ANNEX I
FORM OF CONVERSION NOTICE
TO: ______________________________
______________________________
______________________________
The undersigned owner of this Series A Convertible Preferred
Stock (the "Series A Preferred Stock") issued by Symposium Corporation (the
"Corporation") hereby irrevocably exercises its option to convert shares of the
Series A Preferred Stock into _______ shares of the common stock, $.001 par
value, of the Corporation ("Common Stock"), in accordance with the terms of the
Certificate of Designation. The undersigned hereby instructs the Corporation to
convert the number of shares of the Series A Preferred Stock specified above
into Shares of Common Stock Issued at Conversion in accordance with the
provisions of Article 6 of the Certificate of Designation. The undersigned
directs that the Common Stock issuable and certificates therefore deliverable
upon conversion, the Series A Preferred Stock recertificated, if any, not being
surrendered for conversion hereby, together with any check in payment for
fractional Common Stock, be issued in the name of and delivered to the
undersigned unless a different name has been indicated below. All capitalized
terms used and not defined herein have the respective meanings assigned to them
in the Certificate of Designation.
Dated:________________________
Signature
Fill in for registration of Series A Preferred Stock:
Please print name and address (including zip code number):
________________________________________________________________________________
________________________________________________________________________________
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