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EXHIBIT 3.2
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
O2WIRELESS SOLUTIONS, INC.
o2wireless Solutions, Inc., a Georgia corporation (the "Corporation"),
acting pursuant to Section 14-2-1007 of the Georgia Business Corporation Code,
as amended, does hereby adopt the following Second Amended and Restated Articles
of Incorporation superseding as of the date of filing hereof its previously
filed Amended and Restated Articles of Incorporation:
I.
The name of the Corporation is "o2wireless Solutions, Inc."
II.
The Corporation shall have perpetual existence.
III.
The Corporation is organized pursuant to the provisions of the Georgia
Business Corporation Code. The object of the Corporation is pecuniary gain and
profit and the purpose for which the Corporation is formed is to engage in such
lawful business or activity as the Board of Directors may from time to time
specify by resolution.
IV.
The maximum number of shares of all classes of stock which the
Corporation shall have authority to issue is 110,100,000 shares, consisting of
100,000,000 shares of Common Stock, $.0001 par value ("Common Stock"), 100,000
shares of Class A Convertible Preferred Stock, $.01 par value ("Class A
Preferred Stock") and 10,000,000 shares of Serial Preferred Stock, no par value
per share ("Serial Preferred Stock").
A. Common Stock.
1. Dividends. The holders of shares of Common Stock shall be
entitled to receive such dividends as from time to time may be declared by the
Board of Directors of the Corporation, subject to the rights of holders of the
Class A Preferred Stock and the Serial Preferred Stock.
2. Liquidation. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, after
payment shall have been made to holders of the Class A Preferred Stock and the
Serial Preferred Stock of the full amounts to which they shall respectively be
entitled as stated and expressed herein or as may be stated and expressed
pursuant hereto, the holders of Common Stock shall be entitled to share ratably
according to the number of shares of Common Stock held by them in all remaining
assets of the Corporation available for distribution to its stockholders.
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3. Voting. Except as otherwise provided by law, voting rights
shall be governed by paragraph 5 of Appendix A.
B. Class A Preferred Stock. The preferences, qualifications and
voting rights, powers, limitations and other rights in respect of the Class A
Preferred Stock are as set forth in Appendix A to these Articles of
Incorporation.
C. Serial Preferred Stock. The Serial Preferred Stock may be
issued in one or more series from time to time by the Board of Directors,
pursuant to O.C.G.A. ss. 14-2-602, subject to the rights of holders of the Class
A Preferred Stock. The description of shares of each series of Serial Preferred
Stock, including any preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemption shall be as set forth in resolutions adopted by the
Board of Directors, and articles of amendment shall be filed with the Secretary
of State of the State of Georgia as required by law to be filed with respect to
the issuance of such Serial Preferred Stock, prior to the issuance of any shares
of such series.
The Board of Directors is expressly authorized, at any time, by
adopting resolutions providing for the issuance of, or providing for a change in
the number of, shares of any particular series of Serial Preferred Stock and, if
and to the extent from time to time required by law, by filing articles of
amendment which are effective without shareholder action to increase or decrease
the number of shares included in each series of Serial Preferred Stock, but not
below the number of shares then issued, and to set or change in any one or more
respects the designations, preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications, or terms and
conditions of redemption relating to the shares of each such series. Each
designation of Serial Preferred Stock and the terms thereof (which shall be in
addition to those general terms applicable to Serial Preferred Stock set forth
elsewhere in this Article IV) shall be set forth in one or more Appendices to
these Articles of Incorporation. Notwithstanding the foregoing, the Board of
Directors shall not be authorized to change the right of holders of the Common
Stock of the Corporation to vote one vote per share on all matters submitted for
shareholder action. The authority of the Board of Directors with respect to each
series of Serial Preferred Stock shall include, but not be limited to, setting
or changing the following:
(i) the annual dividend rate, if any, on shares of such
series, the times of payment and the date from which dividends shall be
accumulated, if dividends are to be cumulative;
(ii) whether the shares of such series shall be redeemable
and, if so, the redemption price and the terms and conditions of such
redemption;
(iii) the obligations, if any, of the Corporation to redeem
shares of such series pursuant to a sinking fund;
(iv) whether shares of such series shall be convertible
into, or exchangeable for, shares of stock of any other class or
classes and, if so, the terms and conditions of such
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conversion or exchange, including the price or prices or the rate or
rates of conversion or exchange and the terms of adjustment, if any;
(v) whether the shares of such series shall have voting
rights, in addition to the voting rights provided by law, and, if so,
the extent of such voting rights;
(vi) the rights of the shares of such series in the event
of voluntary or involuntary liquidation, dissolution or winding-up of
the Corporation; and
(vii) any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating to such
series.
The shares of Serial Preferred Stock of any one series shall be
identical with each other in all respects except as to the dates from and after
which dividends thereon shall cumulate if cumulative.
V.
A. Number, Election and Terms. The business and affairs of the
Corporation shall be managed by or under the direction of a board of directors
which shall consist of not less than three (3) nor more than nine (9) persons,
the exact number of directors to be fixed from time to time by the Board of
Directors pursuant to a resolution adopted by not less than two-thirds of the
entire Board of Directors. The directors shall be divided into three classes, as
nearly equal in number as possible, with the term of office of the first class
of directors to expire at the annual meeting of shareholders of the Corporation
to be held in 2001, the term of office of the second class of directors to
expire at the annual meeting of shareholders of the Corporation to be held in
2002, and the term of office of the third class of directors to expire at the
annual meeting of shareholders of the Corporation to be held in 2003. At each
annual meeting of the shareholders of the Corporation following such initial
classification and election, directors elected to succeed those directors whose
terms expire at such annual meeting shall be elected for a term of office to
expire at the third succeeding annual meeting of shareholders of the Corporation
after their election.
B. Vacancies and Newly Created Directorships. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the number of directors or
any vacancies occurring in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by the affirmative vote of a majority of the remaining directors
then in office, although less than a quorum of the Board of Directors, or by the
sole remaining director. A director so chosen shall hold office until the next
annual meeting of shareholders of the Corporation. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
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C. Continuances in Office. Notwithstanding the foregoing
provisions of this Article V, any director whose term of office has expired
shall continue to hold office until his successor shall be elected and qualify.
D. Removal. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time with or without cause but only
by the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the total number of votes entitled to be cast by the
holders of all of the shares of capital stock of the Corporation then entitled
to vote generally in the election of directors. The holder of each share of
capital stock entitled to vote thereon shall be entitled to cast the same number
of votes as the holder of such shares is entitled to cast generally in the
election of each director.
E. Amendment, Repeal, Etc. Notwithstanding any other provisions
of these Articles of Incorporation or the By-laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be specified by law,
these Articles of Incorporation or the By-laws of the Corporation), the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the total number of votes entitled to be cast by the holders of all of
the shares of capital stock of the Corporation then entitled to vote generally
in the election of directors shall be required to amend, alter, change or
repeal, or to adopt any provision as part of these Articles of Incorporation
inconsistent with, this Article V. The holder of each share of capital stock
entitled to vote thereon shall be entitled to cast the same number of votes as
the holder of such shares is entitled to cast generally in the election of each
director.
VI.
None of the holders of shares of Common Stock shall be entitled as a
matter of right to purchase, subscribe for or otherwise acquire any additional
shares of stock of the Corporation of any class, or any options or warrants to
purchase, subscribe for or otherwise acquire any such additional shares, or any
shares, evidences of indebtedness or other securities convertible into or
carrying options or warrants to purchase, subscribe for or otherwise acquire any
such additional shares, or any shares, evidence of indebtedness or other
securities convertible into or carrying options or warrants to purchase,
subscribe for or otherwise acquire any additional shares.
VII.
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of duty of care
or other duty as a director; provided, however, that to the extent required by
applicable law, this Article shall not eliminate or limit the liability of a
director (i) for any appropriation, in violation of his duties, of any business
opportunity of the Corporation, (ii) for acts or omissions which involve
intentional misconduct or a knowing violation of law, (iii) for the types of
liability set forth in Section 14-2-832 of the Georgia Business Corporation
Code, or (iv) for any transaction from which the director derived an improper
personal
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benefit. If applicable law is amended to authorize corporate action further
eliminating or limiting the liability of directors, then the liability of each
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by applicable law, as amended. Neither the amendment or repeal of this
Article VII, nor the adoption of any provision of these Articles of
Incorporation inconsistent with this Article, shall eliminate or reduce the
effect of this Article VII in respect of any acts or omissions occurring prior
to such amendment, repeal or adoption of an inconsistent provision.
VIII.
Any action required by the law or by the articles of incorporation or
bylaws of the Corporation to be taken at a meeting of the shareholders of the
Corporation and any action which may be taken at a meeting of the shareholders
may be taken without a meeting if a written consent, setting forth the action so
taken, shall be signed by persons entitled to vote at a meeting those shares
having sufficient voting power to cast not less than the minimum number (or
numbers, in the case of voting by groups) of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
were present and voted, provided that action by less than unanimous written
consent may not be taken with respect to any election of directors as to which
shareholders would be entitled to cumulative voting. No such written consent
shall be effective unless the consenting shareholder has been furnished the same
material that would have been required to be sent to shareholders in a notice of
a meeting at which the proposed action would have been submitted to the
shareholders, or unless the consent includes an express waiver of the right to
receive the material. Notice of such action without a meeting by less than
unanimous written consent shall be given within ten (10) days of the taking of
such action to those shareholders of record on the date when the written consent
is first executed and whose shares were not represented on the written consent.
The provisions of this Article VIII shall remain in full force and
effect until such date on which the Corporation shall have registered a class of
securities with the Securities and Exchange Commission ("SEC") pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and such registration shall have been declared effective by the SEC, at
which time this Article VIII shall become void and shall not be effective. For
as long as the Corporation does not have a class of securities registered with
the SEC under Section 12 of the Exchange Act, the provisions of this Article
VIII shall remain in full force and effect.
IX.
The mailing address of the initial principal office of the Corporation
is 440 Interstate North Parkway, Atlanta, Georgia 30339.
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X.
The street address of the initial registered office of the Corporation
is 1230 Peachtree Street, N.E., Promenade II, Suite 3100, Atlanta, Georgia
30309-3592, located in Fulton County. The initial registered agent of the
Corporation at such office is Terry Ferraro Schwartz.
XI.
The name and address of the incorporator of the Corporation is L. Brett
Lockwood, Suite 3100, Promenade II, 1230 Peachtree Street, N.E., Atlanta,
Georgia 30309.
IN WITNESS WHEREOF, the Corporation has caused the Second Amended and
Restated Articles of Incorporation to be executed by a duly authorized officer
of the Corporation, on this _____ day of ______________, 2000.
O2 WIRELESS SOLUTIONS, INC.
By:
------------------------------------------------
William J. Loughman
Chief Financial Officer, Secretary and Treasurer
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APPENDIX A
DESIGNATION OF RELATIVE PREFERENCES,
QUALIFICATIONS AND VOTING RIGHTS
OF THE CLASS A PREFERRED STOCK OF O2WIRELESS SOLUTIONS, INC.
CLASS A PREFERRED STOCK
Except as otherwise expressly provided herein, all shares of Class A
Preferred Stock shall be identical and shall entitle the holders thereof to the
same rights and privileges.
1. Dividends. (a) The holders of shares of Class A Preferred
Stock shall be entitled to receive dividends at the rate of $6.00 per share per
annum, payable either in cash or, at the election of the Board of Directors of
the Corporation, in shares of Class A Preferred Stock valued at $100 per share,
such dividends to be paid quarterly on January 2, 1998 and on the first business
day of each calendar quarter thereafter (each, a "Dividend Payment Date");
provided, however, that with respect to dividends for periods ending prior to
November 19, 1999, the Board of Directors shall have the right to elect to
accrue such dividends, in which event such accrued and unpaid dividends shall
bear interest at the rate of 6% per annum from the Dividend Payment Date on
which they would have been payable absent such election to accrue, such interest
to be compounded on November 19, 1998 and on each November 19 thereafter. Such
dividends shall be cumulative and shall accrue on a daily basis from and after
the date of issue whether or not declared and whether or not there are any funds
of the Corporation legally available for the payment of dividends. The
Corporation may at its option pay any dividend in either cash or in shares of
Class A Preferred Stock; provided, however, any dividend which is not paid in
cash on any Dividend Payment Date occurring after November 19, 1999 shall be
declared and paid in shares of Class A Preferred Stock on such Dividend Payment
Date; provided, further, that dividends on the Class A Preferred Stock may not
be paid in cash unless all conditions to payment thereof imposed by the terms of
the Series D Senior Redeemable Preferred Stock have been satisfied. The Board of
Directors of the Corporation shall fix a record date for the determination of
holders of Class A Preferred Stock entitled to receive payment of each dividend
declared thereon, which record date shall be no more than 30 days prior to the
Dividend Payment Date.
(b) As long as any shares of Class A Preferred Stock shall remain
outstanding, in no event shall any dividend be declared or paid upon, nor shall
any distribution be made upon, any Common Stock, other than a dividend or
distribution payable solely in shares of Common Stock of the Corporation, nor
shall any shares of Common Stock be purchased or redeemed by the Corporation,
nor shall any moneys be paid to or made available for a sinking fund for the
purchase or redemption of shares of any Common Stock; provided, however, that in
the event all cumulative dividends in arrears on all outstanding shares of Class
A Preferred Stock have been paid in full, the Corporation will be permitted to
pay dividends in respect of Common Stock not exceeding in the aggregate the cash
amount of the dividend paid on the Class A Preferred Stock in respect of the
most
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recent calendar quarter, not including any payments for cumulative dividends in
arrears. Notwithstanding the foregoing, the holders of the Series D Senior
Redeemable Preferred Stock shall be entitled to receive dividends regardless of
whether or not all cumulative dividends in arrears on all outstanding shares of
Class A Preferred Stock have been paid in full.
2. Redemption. The shares of the Class A Preferred Stock shall be
redeemable as follows:
2A. Redemption at Option of Holder. Upon the first to
occur of (i) the consolidation or merger of the Corporation with or
into any other corporation or entity (other than a merger in which the
Corporation is the surviving corporation and which will not result in
more than 50% in voting power of the capital stock of the Corporation
outstanding immediately after the effective date of such merger being
owned of record or beneficially by persons other than the holders of
such capital stock immediately prior to such merger in substantially
the same proportions in which such capital stock was held immediately
prior to such merger), (ii) a sale of all or substantially all of the
properties and assets of the Corporation as an entirety to any other
person, (iii) any transaction or series of related transactions as a
result of which the persons who were the beneficial holders of a
majority in voting power of the capital stock of the Corporation
outstanding immediately before such transaction (or series of
transactions) are not the beneficial holders, in substantially the same
proportions, of a majority of the voting power of the capital stock of
the Corporation following such transaction (or series of
transactions), or (iv) the earlier to occur of (1) the 180th day
following the last to occur of: (A) the Put Closing Date as defined in
that certain Securities Purchase Agreement among Stratford Capital
Partners, L.P., Stratford Equity Partners, L.P., and the Corporation,
dated on or about November 1, 1999 (the "Stratford Securities Purchase
Agreement"), (B) the final Put Option Closing at which all, or all
remaining, Subject Securities are purchased by the Corporation (as such
terms are defined in that certain Note and Equity Purchase Agreement
among the Corporation, Clear Communications Group, Inc., certain of
their subsidiaries, and American Capital Strategies, Ltd., dated on or
about November 1, 1999 (the "ACS Note and Equity Purchase Agreement")),
(C) the Redemption Date for the Series D Senior Redeemable Preferred
Stock as defined in the Stratford Securities Purchase Agreement, and
(D) payment in full of the Notes as defined in and pursuant to the ACS
Note and Equity Purchase Agreement, or (2) May 1, 2007, then any holder
of shares of Class A Preferred Stock shall, subject to the conditions
hereinafter in this subparagraph 2A provided, and subject to the terms
of that certain Credit Agreement dated on or about November 1, 1999, by
and among the Corporation, Clear Communications Group, Inc., their
respective subsidiaries, Wachovia Bank, N.A. and the other lender's
parties thereto, have the right to elect to have all its shares of
Class A Preferred Stock redeemed (in the manner and with the effect
provided in subparagraphs 2B and 2C hereof) not later than the business
day prior to the effective date of such events specified in clauses (i)
through (iii), or the date specified in clause (iv), of this
subparagraph 2A. The notice required by subparagraph 4J(3) in
connection with any transaction that would give rise to a right of
redemption pursuant to the preceding sentence shall state that such
transaction creates a right of
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redemption. Any holder of shares of Class A Preferred Stock may
exercise its right of election to have such stock redeemed by giving
written notice of its election to the Corporation at the Corporation's
principal office, or at such other office as the Corporation may
specify in such notice, by such date as the Corporation may specify in
such notice, which date shall not be earlier than 10 days following the
date on which such notice was dispatched. Any date on which the
Corporation shall be required to redeem shares of the Class A Preferred
Stock as provided in this subparagraph 2A is hereinafter referred to as
a "Redemption Date". The shares of Class A Preferred Stock to be
redeemed on a Redemption Date shall be redeemed by paying for each
share in cash an amount equal to the sum of $100 plus dividends accrued
and unpaid thereon to the Redemption Date plus any interest accrued and
unpaid thereon as provided in paragraph 1, (any such amount payable on
a Redemption Date being herein sometimes referred to as the "Redemption
Price"). If on or before such Redemption Date the funds necessary for
redemption shall have been set aside so as to be and continue to be
available therefor, then, notwithstanding that any certificate for
shares of the Class A Preferred Stock to be redeemed shall not have
been surrendered for cancellation, after the close of business on such
Redemption Date, the shares to be redeemed shall no longer be deemed
outstanding and all rights with respect to such shares shall, forthwith
after the close of business on the Redemption Date, cease, except only
the right of the holders thereof to receive, upon presentation of the
certificate representing shares to be redeemed, the Redemption Price
without interest thereon subsequent to the Redemption Date.
2B. Redeemed or Otherwise Acquired Shares to Be Retired.
Any shares of the Class A Preferred Stock redeemed pursuant to this
paragraph 2 or otherwise acquired by the Corporation in any manner
whatsoever shall be permanently retired and shall not under any
circumstances be reissued. The Corporation may from time to time take
such appropriate corporate action as may be necessary to reduce the
number of authorized shares of the Class A Preferred Stock accordingly.
2C. Shares to be Redeemed. In case of the redemption, for
any reason, of only a part of the outstanding shares of the Class A
Preferred Stock as to which holders have elected redemption on a
Redemption Date, the shares of the Class A Preferred Stock to be
redeemed shall be selected pro rata, and there shall be so redeemed
from each holder electing redemption in whole shares, as nearly as
practicable to the nearest share, that proportion of all the shares of
Class A Preferred Stock to be redeemed which the number of shares held
of record by such holder bears to the total number of shares of Class A
Preferred Stock. Any shares of the Class A Preferred Stock not redeemed
on a Redemption Date shall be redeemed as soon thereafter as possible
and in the manner in which shares are otherwise redeemed on such
Redemption Date.
3. Liquidation. Upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the holders of the shares
of Class A Preferred Stock shall be entitled, subject to the senior rights of
the holders of the Series D Senior Redeemable Preferred Stock, and before any
distribution or payment is made upon any Common Stock or any
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other stock ranking junior to the Class A Preferred Stock as to rights on
liquidation but pari passu with the holders of Series C Preferred Stock, to be
paid an amount equal to $100 per share, plus any accrued but unpaid dividends
thereon to the date of such payment, plus any interest accrued and unpaid
thereon as provided in paragraph 1, and the holders of Class A Preferred Stock
shall not be entitled to any further payment (such amounts being herein
sometimes referred to as the "Liquidation Payment"). If upon such liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the assets to be distributed among the holders of Class A Preferred Stock, the
Series C Preferred Stock and any other stock ranking pari passu with the Class A
Preferred Stock and the Series C Preferred Stock as to rights in liquidation
shall be insufficient to permit payment to such holders of the full amount to
which they are entitled, then the entire assets of the Corporation to be so
distributed shall be distributed ratably per share among the holders of the
Class A Preferred Stock, the Series C Preferred Stock and any other stock
ranking pari passu with the Class A Preferred Stock and the Series C Preferred
Stock as to rights in liquidation in proportion to the amounts to which they
respectively are entitled. Upon any such liquidation, dissolution or winding up
of the Corporation, after the holders of Class A Preferred Stock, the Series C
Preferred Stock and any other stock ranking pari passu with the Class A
Preferred Stock and the Series C Preferred Stock as to rights in liquidation
shall have been paid in full the amounts to which they shall be entitled, the
remaining net assets of the Corporation shall be distributed ratably to the
holders of Common Stock and any other stock ranking junior to the Class A
Preferred Stock in liquidation. Written notice of such liquidation, dissolution
or winding up, stating a payment date, the amount of the Liquidation Payment and
the place where said sums shall be payable shall be given by mail, postage
prepaid, not less than 30 or more than 60 days prior to the payment date stated
therein, the holders of record of the Class A Preferred Stock, such notice to be
addressed to each shareholder at such holder's post office address as shown by
the records of the Corporation. Neither the consolidation or merger of the
Corporation into or with any other corporation or corporations, not the sale or
transfer by the Corporation of all or any part of its assets, shall be deemed to
be a liquidation, dissolution or winding up of the Corporation within the
meaning of any of the provisions of this paragraph 3.
4. Conversion.
4A. Right to Convert Class A Preferred Stock. (a) Subject
to the terms and conditions of this paragraph 4, the holder of any
share or shares of Class A Preferred Stock shall have the right, at its
option at any time, to convert all or any portion of such shares of
Class A Preferred Stock (except that upon any liquidation, dissolution
or winding up of the Corporation the right of conversion shall
terminate at the close of business on the last full business day next
preceding the date fixed for payment of Liquidation Payment), into such
number of fully paid and nonassessable whole shares of Common Stock as
is obtained by multiplying the number of shares of Class A Preferred
Stock so to be converted by $100 and dividing the result by the
conversion price of $2.7411 per share, or by the conversion price as
last adjusted and in effect at the date any share or shares of Class A
Preferred Stock are surrendered for conversion (such price, or such
price as last adjusted, being referred to herein as the "Conversion
Price").
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(b) The rights of conversion contained in this paragraph 4
shall be exercised by the holder of shares of Class A Preferred Stock
by giving written notice that such holder elects to convert a stated
number of shares of Class A Preferred Stock into Common Stock and by
surrender of a certificate or certificates for the shares so to be
converted to the Corporation at its principal office (or such other
office or agency of the Corporation as the Corporation may designate by
notice in writing to the holder or holders of the Class A Preferred
Stock) at any time during its usual business hours on the date set
forth in such notice, together with a statement of the name or names
(with address) in which the certificate or certificates for shares of
Common Stock shall be issued.
4B. Issuance of Certificates; Time Conversion Effected.
Promptly after the receipt of the written notice referred to in
subparagraph 4A and surrender of the certificate or certificates for
the share or shares of Class A Preferred Stock to be converted, the
Corporation shall issue and deliver, or cause to be issued and
delivered, to the holder, registered in such name or names as such
holder may direct, a certificate or certificates for the number of
whole shares of Common Stock issuable upon the conversion of such share
or shares of Class A Preferred Stock. To the extent permitted by law,
such conversion shall be deemed to have been effected, and the
Conversion Price shall be determined, as of the close of business on
the date on which such written notice shall have been received by the
Corporation and the certificate or certificates for such share or
shares shall have been surrendered as aforesaid, and at such time the
rights of the holder of such share or shares of Class A Preferred Stock
shall cease, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the holder
or holders of record of the shares represented thereby.
4C. Fractional Shares; Dividends; Partial Conversion. No
fractional shares may be issued upon conversion of the Class A
Preferred Stock into Common Stock. At the time of each conversion, the
Corporation shall pay in cash or in shares of Class A Preferred Stock
valued at $100 per share an amount equal to all dividends, if any,
accrued and unpaid to the date of such conversion, together with any
accrued interest on such dividends, on the shares surrendered for
conversion. In case the number of shares of Class A Preferred Stock
represented by the certificate or certificates surrendered pursuant to
subparagraph 4A exceeds the number of shares converted, the Corporation
shall, upon such conversion, execute and deliver to the holder thereof,
at the expense of the Corporation, a new certificate or certificates
for the number of shares of Class A Preferred Stock represented by the
certificate or certificates surrendered which are not to be converted.
If any fractional interest in a share of Common Stock would, except for
the provisions of the first sentence of this subparagraph 4C, be
deliverable upon any such conversion, the Corporation, in lieu of
delivering the fractional share thereof, shall pay to the holder
surrendering the Class A Preferred Stock for conversion an amount in
cash equal to the current market price of such fractional interest as
determined in good faith by the Board of Directors of the Corporation.
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4D. Adjustment of Price Upon Issuance of Common Stock.
Except as provided in subparagraph 4F hereof, if and whenever the
Corporation shall issue or sell, or is in accordance with subparagraphs
4D(1) through 4D(7) deemed to have issued or sold, any shares of its
Common Stock for a consideration per share less than the Conversion
Price in effect immediately prior to the time of such issue or sale,
then, forthwith upon such issue or sale, the Conversion Price shall be
determined by dividing (i) an amount equal to the sum of (a) the number
of shares of Common Stock outstanding immediately prior to such issue
or sale (including as outstanding all shares of Common Stock issuable
upon conversion of outstanding Class A Preferred Stock) multiplied by
the then existing Conversion Price, and (b) the consideration, if any,
received by the Corporation upon such issue or sale, by (ii) the total
number of shares of Common Stock outstanding immediately after such
issue or sale (including as outstanding all shares of Common Stock
issuable upon conversion of outstanding Class A Preferred Stock).
For purposes of this subparagraph 4D, the following
subparagraphs 4D(1) to 4D(7) shall also be applicable:
4D(1). Issuance of Rights or Options. In case at any time
the Corporation shall in any manner grant (whether directly or by
assumption in a merger or otherwise) any rights to subscribe for or to
purchase, or any options for the purchase of, Common Stock or any stock
or securities convertible into or exchangeable for Common Stock (such
rights or options being herein called "Options" and such convertible or
exchangeable stock or securities being herein called "Convertible
Securities") whether or not such Options or the right to convert or
exchange any such Convertible Securities are immediately exercisable,
and the price per share for which Common Stock is issuable upon the
exercise of such Options or upon conversion or exchange of such
Convertible Securities (determined by dividing (i) the total amount, if
any, received or receivable by the Corporation as consideration for the
granting of such Options, plus the minimum aggregate amount of
additional consideration payable to the Corporation upon the exercise
of all such Options, plus, in the case of such Options which relate to
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock issuable upon
the exercise of such Options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of such Options)
shall be less than the Conversion Price in effect immediately prior to
the time of the granting of such Options, then the total maximum number
of shares of Common Stock issuable upon the exercise of such Options or
upon conversion or exchange of the total maximum amount of such
Convertible Securities issuable upon the exercise of such Options shall
be deemed to have been issued for such price per share as of the date
of granting of such Options and thereafter shall be deemed to be
outstanding. Except as otherwise provided in subparagraph 4D(3), no
adjustment of the Conversion Price shall be made upon the actual issue
of such Common Stock or of such Convertible Securities upon exercise of
such
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Options or upon the actual issue of such Common Stock upon conversion
or exchange of such Convertible Securities.
4D(2). Issuance of Convertible Securities. In case the Corporation
shall in any manner issue (whether directly or by assumption in a
merger or otherwise) or sell any Convertible Securities, whether or not
the rights to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common Stock is issuable
upon such conversion or exchange (determined by dividing (i) the total
amount received or receivable by the Corporation as consideration for
the issue or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities) shall be less than the
Conversion Price in effect immediately prior to the time of such issue
or sale, then the total maximum number of shares of Common Stock
issuable upon conversion or exchange of all such Convertible Securities
shall be deemed to have been issued for such price per share as of the
date of the issue or sale of such Convertible Securities and thereafter
shall be deemed to be outstanding, provided that (a) except as
otherwise provided in subparagraph 4D(3) below, no adjustment of the
Conversion Price shall be made upon the actual issue of such Common
Stock upon conversion or exchange of such Convertible Securities, and
(b) if any such issue or sale of such Convertible Securities is made
upon exercise of any Option to purchase any such Convertible Securities
for which adjustments of the Conversion Price have been or are to be
made pursuant to other provisions of this subparagraph 4D, no further
adjustment of the Conversion Price shall be made by reason of such
issue or sale.
4D(3). Change in Option Price or Conversion Rate. If (i) the
purchase price provided for in any Option referred to in subparagraph
4D(1), (ii) the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
subparagraph 4D(l) or 4D(2) or (iii) the rate at which any Convertible
Securities referred to in subparagraph 4D(1) or 4D(2) are convertible
into or exchangeable for Common Stock shall change at any time (in each
case other than under or by reason of provisions designed to protect
against dilution), then the Conversion Price in effect at the time of
such event shall, as required, forthwith be readjusted to such
Conversion Price which would have been in effect at such time had such
Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as
the case may be, at the time initially granted, issued or sold; and on
the expiration of any such Option or the termination of any such right
to convert or exchange such Convertible Securities, the Conversion
Price then in effect hereunder shall, as required, forthwith be
readjusted to the Conversion Price which would have been in effect at
the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to
such expiration or termination, never been issued, and the Common Stock
issuable thereunder shall no longer be deemed to be outstanding. If the
purchase price provided for in any such Option referred to in
subparagraph 4D(l) or the rate at which any
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Convertible Securities referred to in subparagraph 4D(l) or 4D(2) are
convertible into or exchangeable for Common Stock shall be reduced at
any time under or by reason of provisions with respect thereto designed
to protect against dilution, then, in case of the delivery of Common
Stock upon the exercise of any such Option or upon conversion or
exchange of any such Convertible Securities, the Conversion Price then
in effect hereunder shall, as required, forthwith be adjusted to such
respective amount as would have been obtained had such Option or
Convertible Securities never been issued and had adjustments been made
upon the issuance of the shares of Common Stock delivered as aforesaid,
but only if as a result of such adjustment the Conversion Price then in
effect hereunder is thereby reduced.
4D(4). Stock Dividends. In case the Corporation shall
declare a dividend or make any other distribution upon any stock of the
Corporation payable in Common Stock, Options or Convertible Securities,
any Common Stock, Options or Convertible Securities, as the case may
be, issuable in payment of such dividend or distribution shall be
deemed to have been issued or sold without consideration, and the
Conversion Price shall be reduced as if the Corporation had subdivided
its outstanding shares of Common Stock into a greater number of shares,
as provided in subparagraph 4E hereof.
4D(5). Consideration for Stock. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for
cash, the consideration received therefor shall be deemed to be the
amount received by the Corporation therefor, without deduction
therefrom of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Corporation in connection
therewith. In case any shares of Common Stock, Options or Convertible
Securities shall be issued or sold for a consideration other than cash,
the amount of the consideration other than cash received by the
Corporation shall be deemed to be the fair value of such consideration
as determined in good faith by the Board of Directors of the
Corporation, without deduction therefrom of any expenses incurred or
any underwriting commissions or concessions paid or allowed by the
Corporation in connection therewith. In case any Options shall be
issued in connection with the issue and sale of other securities of the
Corporation, together comprising one integral transaction in which no
specific consideration is allocated to such Options by the Corporation,
such Options shall be deemed to have been issued without
consideration, and the Conversion Price shall be reduced as if the
Corporation had subdivided its outstanding shares of Common Stock into
a greater number of shares, as provided in subparagraph 4E hereof.
4D(6). Record Date. In case the Corporation shall take a
record of the holders of its Common Stock for the purpose of entitling
them (i) to receive a dividend or other distribution payable in Common
Stock, Options or Convertible Securities, or (ii) to subscribe for or
purchase Common Stock, Options or Convertible Securities, then such
record date shall be deemed to be the date of the issue or sale of the
shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase,
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as the case may be, provided that such shares of Common Stock shall in
fact have been issued or sold.
4D(7). Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by
or for the account of the Corporation, and the disposition of any such
shares shall be considered an issue or sale of Common Stock for the
purposes of this subparagraph 4D.
4E. Subdivision or Combination of Stock. In case the
Corporation shall at any time subdivide its outstanding shares of
Common Stock into a greater number of shares, the Conversion Price in
effect immediately prior to such subdivision shall be proportionately
reduced, and conversely, in case the outstanding shares of Common Stock
of the Corporation shall be combined into a smaller number of shares,
the Conversion Price in effect immediately prior to such combination
shall be proportionately increased.
4F. Certain Issues of Common Stock Excepted. The
Corporation shall not be required to make any adjustment of the
Conversion Price pursuant to subparagraph 4D upon the occurrence of any
of the following events: (i) the issuance of Common Stock upon
conversion of outstanding shares of Class A Preferred Stock, (ii) the
grant of options and the issuance of up to 325,000 shares of Common
Stock upon the exercise of options granted by the Corporation to
employees, officers and directors of the Corporation pursuant to the
Corporation's currently existing Stock Option Plan or pursuant to a
stock option plan approved by the Compensation Committee of the Board
of Directors of the Corporation, (iii) the issuance of shares of Common
Stock pursuant to Section 2.2 of the ISDC Agreement (as defined
herein), and (iv) the issuance of the warrants to purchase shares of
the Common Stock (the "Warrants") and the issuance of shares of Common
Stock upon the exercise of the Warrants pursuant to the terms of (A)
the Stratford Securities Purchase Agreement and (B) the ACS Note and
Equity Purchase Agreement.
4G. Reorganization, Reclassification, Consolidation,
Merger or Sale. If any capital reorganization or reclassification of
the capital stock of the Corporation or any consolidation or merger of
the Corporation with another corporation, or the sale of all or
substantially all of its assets to another corporation shall be
effected in such a way (including, without limitation, by way of
consolidation or merger) that holders of Common Stock shall be entitled
to receive stock, securities or assets with respect to or in exchange
for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate
provisions (in form reasonably satisfactory to the holders of at least
a majority of the outstanding shares of Class A Preferred Stock) shall
be made whereby each holder of a share or shares of Class A Preferred
Stock shall thereafter have the right to receive, upon the basis and
upon the terms and conditions specified herein and in lieu of the
shares of Common Stock of the Corporation immediately theretofore
receivable upon the conversion of such shares or shares of the Class A
Preferred Stock, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number
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of outstanding shares of such Common Stock equal to the number of
shares of such stock immediately theretofore so receivable had such
reorganization, reclassification, consolidation, merger or sale not
taken place, and in any such case appropriate provision shall be made
with respect to the rights and interests of such holder to the end that
the provisions hereof (including, without limitation, provisions for
adjustment of the Conversion Price) shall thereafter be applicable, as
nearly practicable, in relation to any shares of stock, securities or
assets thereafter deliverable upon the exercise of such conversion
rights. In the event of a merger or consolidation of the Corporation as
a result of which a greater or lesser number of shares of common stock
of the surviving corporation is issuable to holders of Common Stock of
the Corporation outstanding immediately prior to such merger or
consolidation, the Conversion Price in effect immediately prior to such
merger or consolidation shall be adjusted in the same manner as though
there were a subdivision or combination of the outstanding shares of
Common Stock of the Corporation. The Corporation will not effect any
such consolidation or merger, or any sale of all or substantially all
of its assets and properties, unless prior to the consummation thereof
the successor corporation (if other than the Corporation) resulting
from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument (in form reasonably
satisfactory to the holders of at least a majority of the shares of
Class A Preferred Stock at the time outstanding), executed and mailed
or delivered to each holder of shares of Class A Preferred Stock at the
last address of such holder appearing on the books of the Corporation,
the obligation to deliver to such holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to receive.
4H. Automatic Conversion. In the event that, at any time
while any of the Class A Preferred Stock shall be outstanding, the
Corporation shall complete an underwritten public offering involving
the sale by the Corporation of shares of Common Stock (i) at a per
share price to the public of not less than 2.5 times the Conversion
Price in effect at the time and (ii) in which the gross proceeds to the
Corporation and/or selling stockholders, as the case may be, before
deduction of underwriters' discounts and commissions and expenses of
the offering, are at least $15,000,000, then all outstanding shares of
Class A Preferred Stock shall, automatically and without further action
on the part of the holders of the Class A Preferred Stock, be converted
into shares of Common Stock in accordance with the terms of paragraph
4A with the same effect as if the certificates evidencing such shares
had been surrendered for conversion, such conversion to be effective
simultaneously with the closing of such public offering; provided,
however, that certificates evidencing the shares of Common Stock
issuable upon such conversion shall not be issued except on surrender
of the certificates for the shares of the Class A Preferred Stock so
converted.
4I. Notice of Adjustment. Upon any adjustment of the
Conversion Price, then and in each such case the Corporation shall give
written notice thereof, by first class mail, postage prepaid, addressed
to each holder of shares of Class A Preferred Stock at the address of
such holder as shown on the books of the Corporation, which notice
shall state the
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Conversion Price resulting from such adjustment, setting forth in
reasonable detail the method of calculation and the facts upon which
such calculation is based.
4J. Other Notices. In case at any time:
(1) the Corporation shall declare any dividend upon its
Common Stock payable in cash or stock or make any other
distribution to the holders of its Common Stock;
(2) the Corporation shall offer for subscription pro rata
to the holders of its Common Stock any additional shares of
stock of any class or other rights;
(3) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation, or a
consolidation or merger of the Corporation with, or a sale of
all or substantially all its assets to, another corporation,
or any acquisition of beneficial ownership by any person or
group of voting stock of the Corporation representing more
than 50% of the voting power of all outstanding shares of such
voting stock, whether by way of merger or consolidation or
otherwise;
(4) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Corporation;
(5) the Corporation shall take any action or there shall
be any event which would result in an automatic conversion of
the Class A Preferred Stock pursuant to subparagraph 4H; or
(6) the Corporation shall take any action or there shall
be any event which would result in a redemption of the Class A
Preferred Stock pursuant to subparagraph 2A,
then, in any one or more of said cases, the Corporation shall give, by
first class mail, postage prepaid, addressed to each holder of any
shares of Class A Preferred Stock at the address of such holder as
shown on the books of the Corporation, (a) at least 20 days' prior
written notice of the date on which the books of the Corporation shall
close or a record shall be taken for such dividend, distribution or
subscription rights or for determining rights to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least 20 days' prior written
notice of the date when the same shall take place, and (c) in the case
of any event which would result in an automatic conversion of the Class
A Preferred Stock pursuant to subparagraph 4H, at least 20 days' prior
written notice of the date on which the same is expected to be
completed. Such notice in accordance with the foregoing clause (a)
shall also specify, in the case of any such dividend, distribution or
subscription rights, the date on
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which the holders of Common Stock shall be entitled thereto, and such
notice in accordance with the foregoing clause (b) shall also specify
the date on which the holders of Common Stock shall be entitled to
exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, as the case may
be.
4K. Stock to be Reserved. The Corporation will at all
times reserve and keep available out of its authorized Common Stock or
its treasury shares, solely for the purpose of issue upon the
conversion of the Class A Preferred Stock as herein provided, such
number of shares of Common Stock as shall then be issuable upon the
conversion of all outstanding shares of Class A Preferred Stock. The
Corporation covenants that all shares of Common Stock which shall be so
issued shall be duly and validly issued and fully paid and
nonassessable and free from all taxes, liens and charges with respect
to the issue thereof and, without limiting the generality of the
foregoing, the Corporation covenants that it will from time to time
take all such action as may be requisite to assure that the par value
per share of the Common Stock is at all times equal to or less than the
effective Conversion Price. The Corporation will take all such action
as may be necessary to assure that all such shares of Common Stock may
be so issued without violation of any applicable law or regulation, or
of any requirements of any national securities exchange upon which the
Common Stock of the Corporation may be listed. The Corporation will not
take any action which results in any adjustment of the Conversion Price
if the total number of shares of Common Stock issued and issuable after
such action upon conversion of the Class A Preferred Stock would exceed
the total number of shares of Common Stock then authorized by the
Corporation's Articles of Incorporation.
4L. No Reissuance of Class A Preferred Stock. Shares of
Class A Preferred Stock which are converted into shares of Common Stock
as provided herein shall not be reissued.
4M. Issue Tax. The issuance of certificates for shares of
Common Stock upon conversion of the Class A Preferred Stock shall be
made without charge to the holders thereof for any issuance tax in
respect thereof, provided that the Corporation shall not be required to
pay any tax which may be payable in respect of any transfer involved in
the issuance and delivery of any certificate in a name other than that
of the holder of the Class A Preferred Stock which is being converted.
4N. Closing of Books. The Corporation will at no time
close its transfer books against the transfer of any Class A Preferred
Stock or of any shares of Common Stock issued or issuable upon the
conversion of any shares of Class A Preferred Stock in any manner which
interferes with the timely conversion of such Class A Preferred Stock.
4O. Definition of Common Stock. As used in this
paragraph 4, the term "Common Stock" shall mean and include the
Corporation's authorized Common Stock,
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$.0001 par value as constituted on the date of filing these Second
Amended and Restated Articles of Incorporation and shall also include
any capital shares of any class of the Corporation thereafter
authorized which shall not be limited to a fixed sum or percentage of
par value in respect of the rights of the holders thereof to
participate in dividends or in the distribution of assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; provided, however, that the Common Stock receivable upon
conversion of shares of the Class A Preferred Stock of the Corporation,
or in case of any reorganization or reclassification of the outstanding
shares of the Corporation, the stock, securities or assets provided for
in paragraph 4G, shall include only shares designated as Common Stock
of the Corporation on the date of filing these Second Amended and
Restated Articles of Incorporation.
5. Voting. Except as otherwise required by law or these Articles
of Incorporation, the holders of the Class A Preferred Stock and the holders of
Common Stock shall be entitled to notice of any stockholders meeting in
accordance with the By-laws of the Corporation and to vote together as a single
class upon any matter submitted to the stockholders for a vote as follows: (i)
the holders of Class A Preferred Stock shall have one vote for each full share
of Common Stock into which their respective shares of Class A Preferred Stock
are convertible on the record date for the vote and (ii) the holders of Common
Stock shall have one vote per share of Common Stock.
6. Restrictions. At any time when shares of Class A Preferred
Stock are outstanding, except where the vote or written consent of the holders
of a greater number of shares of the Corporation is required by law or by these
Amended and Restated Articles of Incorporation, and in addition to any other
vote required by law, without the prior consent (which consent shall not be
unreasonably withheld in the case of clause (d) below) of the holders of a
majority of the outstanding Class A Preferred Stock, given in person or by
proxy, either in writing within 20 days after notice from the Company or at a
special meeting called for that purpose, at which meeting the holders of the
shares of such Class A Preferred Stock shall vote together as a class:
(a) The Corporation will not (i) create or authorize the
creation of any additional class or series of shares unless the same
ranks junior to the Class A Preferred Stock as to the distribution of
assets upon the liquidation, dissolution or winding up of the
Corporation, (ii) increase the authorized amount of the Class A
Preferred Stock or the authorized amount of any additional class or
series of shares unless the same ranks junior to the Class A Preferred
Stock as to the distribution of assets upon the liquidation,
dissolution or winding up of the Corporation, or (iii) create or
authorize any obligation or security convertible into shares of Class A
Preferred Stock or into shares of any other class or series unless the
same ranks junior to the Class A Preferred Stock as to the distribution
of assets upon the liquidation, dissolution or winding up of the
Corporation, whether any such creation or authorization or increase
shall be by means of amendment of the Articles of Incorporation,
merger, consolidation or otherwise.
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(b) The Corporation will not amend, alter or repeal its
Articles of Incorporation or By-laws in any manner, or file any
directors' resolutions pursuant to O.C.G.A. ss. 14-2-602 containing any
provision, in either case, which adversely affects the respective
preferences, qualifications, special or relative rights or privileges
of the Class A Preferred Stock or which in any manner adversely affects
the Class A Preferred Stock or the holders thereof.
(c) The Corporation will not (i) consolidate or merge
with or into any other corporation or other entity, (ii) sell or
otherwise dispose of all or substantially all of its properties and
assets as an entirety to any other person, or (iii) liquidate, dissolve
or wind up its business.
(d) The Corporation will not, directly or indirectly,
acquire any other business entity, or the assets of any other business
entity as a going concern.
(e) The Corporation will not, directly or indirectly,
enter into any material transaction with any affiliate (as defined in
Rule 405 under the Securities Act of 1933, as amended) of the
Corporation unless such affiliate is a wholly-owned subsidiary of the
Corporation.
(f) The Corporation will not, directly or indirectly,
engage in any business other than the business in which it was engaged
immediately after the initial issuance of the Class A Preferred Stock.
(g) The Corporation will not enter into any agreement
after the date of filing of these Amended and Restated Articles of
Incorporation which would restrict its right to pay dividends on the
Class A Preferred Stock in shares of Class A Preferred Stock.
(h) The Corporation will not repurchase, redeem or retire
any shares of capital stock of the Corporation other than shares of
Class A Preferred Stock; provided, that no such vote shall be required
to permit the redemption of (i) the Corporation's Series C Convertible
Preferred Stock (ii) the Corporation's Series D Senior Redeemable
Preferred Stock, (iii) the Warrants; or (iv) the shares of Common Stock
issuable upon exercise of the Warrants.
(i) The Corporation will not amend the terms of any stock
option plan or stock option agreement for the benefit of employees of
the Company.
7. Preemptive Rights. (a) Each holder of Class A Preferred Stock
shall have the right to purchase such holder's Proportionate Percentage (as
hereinafter defined) of any future Eligible Offering (as hereinafter defined).
For the purposes of this paragraph 7, the following terms shall have the
meanings set forth below:
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"Proportionate Percentage" means, with respect to a holder of Class A
Preferred Stock as of any date, the result (expressed as a percentage) obtained
by dividing (i) the number of shares of Common Stock issuable upon conversion of
shares of Class A Preferred Stock held by such holder as of such date, by (ii)
the total number of shares of Common Stock outstanding as of such date
(treating, for purposes of such calculation, all shares of Class A Preferred
Stock as having been converted at such date).
"Eligible Offering" means an offer by the Corporation to sell for cash
shares of capital stock of the Corporation, or any security convertible into or
exchangeable for, or carrying rights or options to purchase, capital stock of
the Corporation, other than an offering of securities by the Corporation:
(i) to its full-time employees, officers, directors,
consultants or advisors of Common Stock, or options to purchase Common
Stock in connection with or pursuant to any stock option or stock
purchase plan or other compensatory arrangement;
(ii) in connection with any merger of, or acquisition by,
the Corporation or any subsidiary of the Corporation (including,
without limitation, pursuant to the ISDC Agreement);
(iii) in connection with the conversion or exercise of
outstanding securities of the Corporation;
(iv) in any public offering resulting in automatic
conversion of the Class A Preferred Stock pursuant to subparagraph 4H
of paragraph 4; and
(v) to Stratford Capital Partners, L.P., Stratford Equity
Partners, L.P., or American Capital Strategies, Ltd. of the Warrants or
the issuance of Common Stock upon the exercise of such Warrants.
(b) The Corporation shall, before issuing any securities pursuant
to an Eligible Offering, give written notice thereof to each holder of Class A
Preferred Stock. Such notice shall specify the security or securities the
Corporation proposes to issue and the consideration that the Corporation intends
to receive therefor. For a period of ten (10) days following the date of such
notice, each such holder shall be entitled, by written notice to the
Corporation, to elect to purchase all or any part of such holder's Proportionate
Percentage of the securities being sold in the Eligible Offering; provided,
however, that if two or more securities shall be proposed to be sold as a "unit"
in an Eligible Offering, any such election must relate to such unit of
securities. In the event that elections pursuant to this paragraph 7 shall not
be made with respect to any securities included in an Eligible Offering within
such ten (10) day period, then the Corporation may issue such securities to
other purchasers, but only for a consideration payable in cash not less than,
and otherwise on no more favorable terms to the purchaser than, that set forth
in the Corporation's notice and only within 180 days after the end of such ten
(10) day period. In the event that any such offer is accepted by
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a holder of Class A Preferred Stock, the Corporation shall sell to such holder,
and such holder shall purchase from the Corporation, for the consideration and
on the terms set forth in the notice as afore said, the securities that such
holder shall have elected to purchase.
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APPENDIX B
DESIGNATION IN RESPECT OF
SERIES C PREFERRED STOCK
(THE "SERIES C DESIGNATION")
1. Designation. Seventy-five thousand (75,000) shares of the
Serial Preferred Stock, no par value, are hereby constituted as a series of the
Serial Preferred Stock designated as the "Series C Convertible Preferred Stock"
(the "Series C Preferred Stock"). The following is a statement of the
designations, and the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, of the Series C Preferred Stock. Except as
otherwise expressly provided herein, all shares of Series C Preferred Stock
shall be identical and shall entitle the holders thereof to the same rights and
privileges.
2. Dividends. (a) The holders of shares of Series C Preferred
Stock shall be entitled to receive dividends at the rate of $6.00 per share per
annum, payable either in cash or, at the election of the Board of Directors of
the Corporation, in shares of Series C Preferred Stock valued at $100 per share,
such dividends to be paid quarterly on April 3, 2000 and on the first business
day of each calendar quarter thereafter (each, a "Dividend Payment Date");
provided, however, that dividends on the Series C Preferred Stock may not be
paid in cash unless all conditions to payment thereof imposed by the terms of
the Series D Senior Redeemable Preferred Stock have been satisfied. Dividends
for the periods ending June 30, September 30 and December 31, 1999 shall accrue
at the rate of $6.00 per share per annum and shall bear interest at the rate of
6% per annum compounded quarterly from such respective dates, which accrued
dividends and interest thereon shall be paid in full on redemption or conversion
of the Series C Preferred Stock, unless earlier paid. All dividends shall be
cumulative and shall accrue on a daily basis from and after the date of issue
whether or not declared and whether or not there are any funds of the
Corporation legally available for the payment of dividends. The Board of
Directors of the Corporation shall fix a record date for the determination of
holders of Series C Preferred Stock entitled to receive payment of each dividend
declared thereon, which record date shall be no more than 30 days prior to the
Dividend Payment Date.
(b) s long as any shares of Series C Preferred
Stock shall remain outstanding, in no event shall any dividend be declared or
paid upon, nor shall any distribution be made upon, any Common Stock or any
other stock ranking junior to the Series C Preferred Stock, other than a
dividend or distribution payable solely in shares of Common Stock or such junior
stock, nor shall any shares of Common Stock or any such junior stock be
purchased or redeemed by the Corporation, nor shall any moneys be paid to or
made available for a sinking fund for the purchase or redemption of shares of
any Common Stock or any such junior stock; provided, however, that in the event
all cumulative dividends in arrears on all outstanding shares of Series C
Preferred Stock have been paid in full, the Corporation will be permitted to pay
dividends in respect of Common Stock or any such junior stock not exceeding in
the aggregate the cash amount of the dividend paid on the Series C Preferred
Stock in respect of the
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most recent calendar quarter, not including any payments for cumulative
dividends in arrears. Notwithstanding the foregoing, the holders of the Series D
Senior Redeemable Preferred Stock shall be entitled to receive dividends
regardless of whether or not all cumulative dividends in arrears on all
outstanding shares of Series C Preferred Stock have been paid in full.
3. Redemption. The shares of the Series C Preferred Stock shall
be redeemable as follows:
3A. Redemption at the Option of Holder. Upon the first to
occur of (i) the completion of an underwritten public offering of the
Corporation's Common Stock resulting in gross proceeds (before
deduction of underwriters' commissions and discounts and expenses of
the offering) of not less than $15 million; (ii) the consolidation or
merger of the Corporation with or into any other corporation or entity
(other than a merger in which the Corporation is the surviving
corporation and which will not result in more than 50% in voting power
of the capital stock of the Corporation outstanding immediately after
the effective date of such merger being owned of record or beneficially
by persons other than the holders of such capital stock immediately
prior to such merger in substantially the same proportions in which
such capital stock was held immediately prior to such merger); (iii) a
sale of all or substantially all of the properties and assets of the
Corporation as an entirety to any other person; (iv) any transaction or
series of related transactions as a result of which the persons who
were the beneficial holders of a majority in voting power of the
capital stock of the Corporation outstanding immediately before such
transaction (or series of transactions) are not the beneficial holders,
in substantially the same proportions, of a majority of the voting
power of the capital stock of the Corporation following such
transaction (or series of transactions); or (v) the earlier to occur of
(1) the 180th day following the last to occur of: (A) the Put Closing
Date as defined in that certain Securities Purchase Agreement among
Stratford Capital Partners, L.P., Stratford Equity Partners, L.P., and
the Corporation, dated on or about November 1, 1999 (the "Stratford
Securities Purchase Agreement"), (B) the final Put Option Closing at
which all, or all remaining, Subject Securities are purchased by the
Corporation (as such terms are defined in that certain Note and Equity
Purchase Agreement among the Corporation, Clear Communications Group,
Inc., certain of their subsidiaries, and American Capital Strategies,
Ltd., dated on or about November 1, 1999 (the "ACS Note and Equity
Purchase Agreement")), (C) the Redemption Date for the Series D Senior
Redeemable Preferred Stock as defined in the Stratford Securities
Purchase Agreement, and (D) payment in full of the Notes as defined in
and pursuant to the ACS Note and Equity Purchase Agreement, or (2) May
1, 2007, then any holder of Shares of Series C Preferred Stock shall,
subject to the conditions hereinafter in this paragraph 3 provided, and
subject to the terms of that certain Credit Agreement dated on or about
November 1, 1999, by and among the Corporation, Clear Communications
Group, Inc., their respective subsidiaries, Wachovia Bank, N.A. and the
other lender's parties thereto, have the right to have all its shares
of Series C Preferred Stock redeemed (in the manner and with the effect
provided in subparagraphs 3D and 3E hereof) not later than the closing
of the
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public offering referred to in clause (i), not later than the business
day prior to the effective date of such events specified in clauses
(ii) through (iv), or the date specified in clause (v), of this
subparagraph 3A. The notice required by subparagraph 5J(3) in
connection with any transaction that would give rise to a right of
redemption pursuant to the preceding sentence shall state that such
transaction creates a right of redemption. Any holder of shares of
Series C Preferred Stock may exercise its right of election to have
such stock redeemed by giving written notice of its election to the
Corporation at the Corporation's principal office, or at such other
office as the Corporation may specify in such notice, by such date as
the Corporation may specify in such notice, which date shall not be
earlier than 10 days following the date on which such notice was
dispatched.
3B. Redemption at Option of the Corporation. At
any time prior to July 31, 1999, the Corporation may elect to redeem
all, but not less than all, outstanding shares of Series C Preferred
Stock (in the manner and with the effect specified in subparagraphs 3D
and 3E hereof) by giving written notice by mail, postage prepaid, to
the holders of record of the Series C Preferred Stock specifying the
Redemption Date (which shall be not less than 10 days from the date
such notice is given), the Redemption Price (as specified in
subparagraph 3C) and that the right to convert the Series C Preferred
Stock into Common Stock shall terminate at the close of business on the
day preceding the Redemption Date.
3C. Redemption Procedure. Any date on which the
Corporation is required to redeem any shares of Series C Preferred
Stock by reason of an election pursuant to subparagraph 3A or 3B is
herein referred to as a "Redemption Date". The shares of Series C
Preferred Stock to be redeemed on a Redemption Date shall be redeemed
by paying for each share in cash an amount equal to the sum of $100 (in
the case of redemption at the option of the holder pursuant to
subparagraph 3A) or $110 (in the case of redemption at the option of
the Corporation pursuant to subparagraph 3B) plus, in each case,
dividends accrued and unpaid thereon to the Redemption Date plus any
interest accrued and unpaid thereon as provided in paragraph 2, (any
such amount payable on a Redemption Date being herein sometimes
referred to as the "Redemption Price"). If on or before such Redemption
Date the funds necessary for redemption shall have been set aside so as
to be and continue to be available therefor, then, notwithstanding
that any certificate for shares of the Series C Preferred Stock to be
redeemed shall not have been surrendered for cancellation, after the
close of business on such Redemption Date, the shares to be redeemed
shall no longer be deemed outstanding and all rights with respect to
such shares shall, forthwith after the close of business on the
Redemption Date, cease, except only the right of the holders thereof to
receive, upon presentation of the certificate representing shares to be
redeemed, the Redemption Price without interest thereon subsequent to
the Redemption Date.
3D. Redeemed or Otherwise Acquired Shares to Be
Retired. Any shares of the Series C Preferred Stock redeemed pursuant
to this paragraph 3 or otherwise
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<PAGE> 26
acquired by the Corporation in any manner whatsoever shall be
permanently retired and shall not under any circumstances be reissued.
The Corporation may from time to time take such appropriate corporate
action as may be necessary to reduce the number of authorized shares of
the Series C Preferred Stock accordingly.
3E. Shares to be Redeemed. In case of the
redemption, for any reason, of only a part of the outstanding shares of
the Series C Preferred Stock on a Redemption Date, the shares of the
Series C Preferred Stock to be redeemed shall be selected pro rata, and
there shall be so redeemed from each holder electing redemption in
whole shares, as nearly as practicable to the nearest share, that
proportion of all the shares of Series C Preferred Stock to be redeemed
which the number of shares held of record by such holder bears to the
total number of shares of Series C Preferred Stock. Any shares of the
Series C Preferred Stock not redeemed on a Redemption Date shall be
redeemed as soon thereafter as possible and in the manner in which
shares are otherwise redeemed on such Redemption Date.
4. Liquidation. Upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the holders of
the shares of Series C Preferred Stock shall be entitled, subject to the senior
rights of the holders of the Series D Senior Redeemable Preferred Stock, and
before any distribution or payment is made upon any Common Stock or any other
stock ranking junior to the Series C Preferred Stock as to rights on liquidation
but pari passu with the holders of Class A Convertible Preferred Stock, to be
paid an amount equal to $100 per share, plus any accrued but unpaid dividends
thereon to the date of such payment, plus any interest accrued and unpaid
thereon as provided in paragraph 2, and the holders of Series C Preferred Stock
shall not be entitled to any further payment (such amounts being herein
sometimes referred to as the "Liquidation Payment"). If upon such liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the assets to be distributed among the holders of Series C Preferred Stock, the
Class A Convertible Preferred Stock and any other stock ranking pari passu with
the Series C Preferred Stock and the Class A Convertible Preferred Stock as to
rights in liquidation shall be insufficient to permit payment to such holders of
the full amount to which they are entitled, then the entire assets of the
Corporation to be so distributed shall be distributed ratably per share among
the holders of Series C Preferred Stock, the Class A Convertible Preferred Stock
and any other stock ranking pari passu with the Series C Preferred Stock and the
Class A Convertible Preferred Stock as to rights in liquidation in proportion to
the amounts to which they respectively are entitled. Upon any such liquidation,
dissolution or winding up of the Corporation, after the holders of Series C
Preferred Stock, the Class A Convertible Preferred Stock and any other stock
ranking pari passu with the Series C Preferred Stock and the Class A Convertible
Preferred Stock as to rights in liquidation shall have been paid in full the
amounts to which they shall be entitled, the remaining net assets of the
Corporation shall be distributed ratably to the holders of Common Stock and any
other stock ranking junior to the Series C Preferred Stock in liquidation.
Written notice of such liquidation, dissolution or winding up, stating a
payment date, the amount of the Liquidation Payment and the place where said
sums shall be payable shall be given by mail, postage prepaid, not less
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than 30 or more than 60 days prior to the payment date stated therein, to the
holders of record of the Series C Preferred Stock, such notice to be addressed
to each shareholder at such holder's post office address as shown by the records
of the Corporation. Neither the consolidation or 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, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of
any of the provisions of this paragraph 4.
5. Conversion.
5A. Right to Convert Series C Preferred Stock.
(a) Subject to the terms and conditions of this paragraph 5, the holder
of any share or shares of Series C Preferred Stock shall have the
right, at its option at any time after July 31, 1999, to convert all or
any portion of such shares of Series C Preferred Stock (except that
upon any liquidation, dissolution or winding up of the Corporation the
right of conversion shall terminate at the close of business on the
last full business day next preceding the date fixed for payment of the
Liquidation Payment), into such number of fully paid and nonassessable
whole shares of Common Stock as is obtained by multiplying the number
of shares of Series C Preferred Stock so to be converted by $100 and
dividing the result by the conversion price of $2.7411 per share, or by
the conversion price as last adjusted and in effect at the date any
share or shares of Series C Preferred Stock are surrendered for
conversion (such price, or such price as last adjusted, being referred
to herein as the "Conversion Price").
(b) The rights of conversion contained
in this paragraph 5 shall be exercised by the holder of shares of
Series C Preferred Stock by giving written notice that such holder
elects to convert a stated number of shares of Series C Preferred Stock
into Common Stock and by surrender of a certificate or certificates for
the shares so to be converted to the Corporation at its principal
office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holder or holders
of the Series C Preferred Stock) at any time during its usual business
hours on the date set forth in such notice, together with a statement
of the name or names (with ad dress) in which the certificate or
certificates for shares of Common Stock shall be issued.
5B. Issuance of Certificates; Time Conversion
Effected. Promptly after the receipt of the written notice referred to
in subparagraph 5A and surrender of the certificate or certificates for
the share or shares of Series C Preferred Stock to be converted, the
Corporation shall issue and deliver, or cause to be issued and
delivered, to the holder, registered in such name or names as such
holder may direct, a certificate or certificates for the number of
whole shares of Common Stock issuable upon the conversion of such share
or shares of Series C Preferred Stock. To the extent permitted by law,
such conversion shall be deemed to have been effected, and the
Conversion Price shall be determined, as of the close of business on
the date on which such written notice shall have been received by the
Corporation and the certificate or certificates for such
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<PAGE> 28
share or shares shall have been surrendered as aforesaid, and at such
time the rights of the holder of such share or shares of Series C
Preferred Stock shall cease, and the person or persons in whose name or
names any certificate or certificates for shares of Common Stock shall
be issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby.
5C. Fractional Shares; Dividends; Partial
Conversion. No fractional shares may be issued upon conversion of the
Series C Preferred Stock into Common Stock. At the time of each
conversion, the Corporation shall pay in cash or in shares of Series C
Preferred Stock valued at $100 per share an amount equal to all
dividends, if any, accrued and unpaid to the date of such conversion,
together with any accrued interest on such dividends, on the shares
surrendered for conversion. In case the number of shares of Series C
Preferred Stock represented by the certificate or certificates
surrendered pursuant to subparagraph 5A exceeds the number of shares
converted, the Corporation shall, upon such conversion, execute and
deliver to the holder thereof, at the expense of the Corporation, a new
certificate or certificates for the number of shares of Series C
Preferred Stock represented by the certificate or certificates
surrendered which are not to be converted. If any fractional interest
in a share of Common Stock would, except for the provisions of the
first sentence of this subparagraph 5C, be deliverable upon any such
conversion, the Corporation, in lieu of delivering the fractional share
thereof, shall pay to the holder surrendering the Series C Preferred
Stock for conversion an amount in cash equal to the current market
price of such fractional interest as determined in good faith by the
Board of Directors of the Corporation.
5D. Adjustment of Price Upon Issuance of Common
Stock. Except as provided in subparagraph 5F hereof, if and whenever
the Corporation shall issue or sell, or is in accordance with
subparagraphs 5D(1) through 5D(7) deemed to have issued or sold, any
shares of its Common Stock for a consideration per share less than the
Conversion Price in effect immediately prior to the time of such issue
or sale, then, forth with upon such issue or sale, the Conversion Price
shall be determined by dividing (i) an amount equal to the sum of (a)
the number of shares of Common Stock outstanding immediately prior to
such issue or sale (including as outstanding all shares of Common Stock
issuable upon conversion of outstanding Series C Preferred Stock)
multiplied by the then existing Conversion Price, and (b) the
consideration, if any, received by the Corporation upon such issue or
sale, by (ii) the total number of shares of Common Stock outstanding
immediately after such issue or sale (including as outstanding all
shares of Common Stock issuable upon conversion of outstanding Series C
Preferred Stock).
For purposes of this subparagraph 5D, the following
subparagraphs 5D(1) to 5D(7) shall also be applicable:
5D(1). Issuance of Rights or Options. In case at
any time the Corporation shall in any manner grant (whether directly or
by assumption in a merger or otherwise)
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<PAGE> 29
any rights to subscribe for or to purchase, or any options for the
purchase of, Common Stock or any stock or securities convertible into
or exchangeable for Common Stock (such rights or options being herein
called "Options" and such convertible or exchangeable stock or
securities being herein called "Convertible Securities") whether or not
such Options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for
which Common Stock is issuable upon the exercise of such Options or
upon conversion or exchange of such Convertible Securities (determined
by dividing (i) the total amount, if any, received or receivable by the
Corporation as consideration for the granting of such Options, plus the
minimum aggregate amount of additional consideration payable to the
Corporation upon the exercise of all such Options, plus, in the case of
such Options which relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon the
issue or sale of such Convertible Securities and upon the conversion or
exchange thereof, by (ii) the total maximum number of shares of Common
Stock issuable upon the exercise of such Options or upon the conversion
or exchange of all such Convertible Securities issuable upon the
exercise of such Options) shall be less than the Conversion Price in
effect immediately prior to the time of the granting of such Options,
then the total maximum number of shares of Common Stock issuable upon
the exercise of such Options or upon conversion or exchange of the
total maximum amount of such Convertible Securities issuable upon the
exercise of such Options shall be deemed to have been issued for such
price per share as of the date of granting of such Options and
thereafter shall be deemed to be outstanding. Except as otherwise
provided in subparagraph 5D(3), no adjustment of the Conversion Price
shall be made upon the actual issue of such Common Stock or of such
Convertible Securities upon exercise of such Options or upon the actual
issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
5D(2). Issuance of Convertible Securities. In case
the Corporation shall in any manner issue (whether directly or by
assumption in a merger or otherwise) or sell any Convertible
Securities, whether or not the rights to exchange or convert thereunder
are immediately exercisable, and the price per share for which Common
Stock is issuable upon such conversion or exchange (determined by
dividing (i) the total amount received or receivable by the Corporation
as consideration for the issue or sale of such Convertible Securities,
plus the minimum aggregate amount of additional consideration, if any,
payable to the Corporation upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock issuable upon
the conversion or exchange of all such Convertible Securities) shall be
less than the Conversion Price in effect immediately prior to the time
of such issue or sale, then the total maximum number of shares of
Common Stock issuable upon conversion or exchange of all such
Convertible Securities shall be deemed to have been issued for such
price per share as of the date of the issue or sale of such Convertible
Securities and thereafter shall be deemed to be out standing, provided
that (a) except as otherwise provided in subparagraph 5D(3) below, no
adjustment of the Conversion Price shall be made upon the actual issue
of such Common
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<PAGE> 30
Stock upon conversion or exchange of such Convertible Securities, and
(b) if any such issue or sale of such Convertible Securities is made
upon exercise of any Option to purchase any such Convertible Securities
for which adjustments of the Conversion Price have been or are to be
made pursuant to other provisions of this subparagraph 5D, no further
adjustment of the Conversion Price shall be made by reason of such
issue or sale.
5D(3). Change in Option Price or Conversion Rate.
If (i) the purchase price provided for in any Option referred to in
subparagraph 5D(1), (ii) the additional consideration, if any, payable
upon the conversion or exchange of any Convertible Securities referred
to in subparagraph 5D(1) or 5D(2) or (iii) the rate at which any
Convertible Securities referred to in subparagraph 5D(1) or 5D(2) are
convertible into or exchangeable for Common Stock shall change at any
time (in each case other than under or by reason of provisions designed
to protect against dilution), then the Conversion Price in effect at
the time of such event shall, as required, forthwith be readjusted to
such Conversion Price which would have been in effect at such time had
such Options or Convertible Securities still outstanding provided for
such changed purchase price, additional consideration or conversion
rate, as the case may be, at the time initially granted, issued or
sold; and on the expiration of any such Option or the termination of
any such right to convert or exchange such Convertible Securities, the
Conversion Price then in effect hereunder shall, as required, forthwith
be readjusted to the Conversion Price which would have been in effect
at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to
such expiration or termination, never been issued, and the Common Stock
issuable thereunder shall no longer be deemed to be outstanding. If the
purchase price provided for in any such Option referred to in
subparagraph 5D(1) or the rate at which any Convertible Securities
referred to in subparagraph 5D(1) or 5D(2) are convertible into or
exchangeable for Common Stock shall be reduced at any time under or by
reason of provisions with respect thereto designed to protect against
dilution, then, in case of the delivery of Common Stock upon the
exercise of any such Option or upon conversion or exchange of any such
Convertible Securities, the Conversion Price then in effect hereunder
shall, as required, forthwith be adjusted to such respective amount as
would have been obtained had such Option or Convertible Securities
never been issued and had adjustments been made upon the issuance of
the shares of Common Stock delivered as aforesaid, but only if as a
result of such adjustment the Conversion Price then in effect hereunder
is thereby reduced.
5D(4). Stock Dividends. In case the Corporation
shall declare a dividend or make any other distribution upon any stock
of the Corporation payable in Common Stock, Options or Convertible
Securities, any Common Stock, Options or Convertible Securities, as the
case may be, issuable in payment of such dividend or distribution shall
be deemed to have been issued or sold without consideration, and the
Conversion Price shall be reduced as if the Corporation had subdivided
its outstanding shares of Common Stock into a greater number of shares,
as provided in subparagraph 5E hereof.
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5D(5). Consideration for Stock. In case any shares
of Common Stock, Options or Convertible Securities shall be issued or
sold for cash, the consideration received therefor shall be deemed to
be the amount received by the Corporation therefor, without deduction
therefrom of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Corporation in connection therewith.
In case any shares of Common Stock, Options or Convertible Securities
shall be issued or sold for a consideration other than cash, the amount
of the consideration other than cash received by the Corporation shall
be deemed to be the fair value of such consideration as determined in
good faith by the Board of Directors of the Corporation, without
deduction therefrom of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Corporation in
connection therewith. In case any Options shall be issued in connection
with the issue and sale of other securities of the Corporation,
together comprising one integral transaction in which no specific
consideration is allocated to such Options by the Corporation, such
Options shall be deemed to have been issued without consideration, and
the Conversion Price shall be reduced as if the Corporation had
subdivided its outstanding shares of Common Stock into a greater number
of shares, as provided in subparagraph 5E hereof.
5D(6). Record Date. In case the Corporation shall
take a record of the holders of its Common Stock for the purpose of
entitling them (i) to receive a dividend or other distribution payable
in Common Stock, Options or Convertible Securities, or (ii) to
subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued
or sold upon the declaration of such dividend or the making of such
other distribution or the date of the granting of such right of
subscription or purchase, as the case may be, provided that such shares
of Common Stock shall in fact have been issued or sold.
5D(7). Treasury Shares. The number of shares of
Common Stock outstanding at any given time shall not include shares
owned or held by or for the account of the Corporation, and the
disposition of any such shares shall be considered an issue or sale of
Common Stock for the purposes of this subparagraph 5D.
5E. Subdivision or Combination of Stock. In case
the Corporation shall at any time subdivide its outstanding shares of
Common Stock into a greater number of shares, the Conversion Price in
effect immediately prior to such subdivision shall be proportionately
reduced, and conversely, in case the outstanding shares of Common Stock
of the Corporation shall be combined into a smaller number of shares,
the Conversion Price in effect immediately prior to such combination
shall be proportionately increased.
5F. Certain Issues of Common Stock Excepted. The
Corporation shall not be required to make any adjustment of the
Conversion Price pursuant to subparagraph
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5D upon the occurrence of any of the following events: (i) the issuance
of Common Stock upon conversion of outstanding shares of Series C
Preferred Stock, or outstanding shares of the Corporation's Class A
Convertible Preferred Stock, (ii) the grant of options and the issuance
of shares of Common Stock upon the exercise of options granted by the
Corporation to employees, officers and directors of the Corporation
pursuant to the Corporation's currently existing Stock Option Plan or
pursuant to a stock option plan approved by the Compensation Committee
of the Board of Directors of the Corporation, provided that the total
number of shares issued upon exercise of such options, whether before
or after the adoption of this Series C Designation, does not exceed
325,000; and (iii) the issuance of the warrants to purchase shares of
the Common Stock (the "Warrants") and the issuance of shares of Common
Stock upon the exercise of the Warrants pursuant to the terms of (A)
the Stratford Securities Purchase Agreement and (B) the ACS Note and
Equity Purchase Agreement.
5G. Reorganization, Reclassification,
Consolidation, Merger or Sale. If any capital reorganization or
reclassification of the capital stock of the Corporation or any
consolidation or merger of the Corporation with another corporation, or
the sale of all or substantially all of its assets to another
corporation shall be effected in such a way (including, without
limitation, by way of consolidation or merger) that holders of Common
Stock shall be entitled to receive stock, securities or assets with
respect to or in exchange for Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale,
lawful and adequate provisions (in form reasonably satisfactory to the
holders of at least a majority of the outstanding shares of Series C
Preferred Stock) shall be made whereby each holder of a share or shares
of Series C Preferred Stock shall thereafter have the right to receive,
upon the basis and upon the terms and conditions specified herein and
in lieu of the shares of Common Stock of the Corporation immediately
theretofore receivable upon the conversion of such shares or shares of
the Series C Preferred Stock, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a
number of outstanding shares of such Common Stock equal to the number
of shares of such stock immediately theretofore so receivable had such
reorganization, reclassification, consolidation, merger or sale not
taken place, and in any such case appropriate provision shall be made
with respect to the rights and interests of such holder to the end that
the provisions hereof (including, without limitation, provisions for
adjustment of the Conversion Price) shall thereafter be applicable, as
nearly practicable, in relation to any shares of stock, securities or
assets thereafter deliverable upon the exercise of such conversion
rights. In the event of a merger or consolidation of the Corporation as
a result of which a greater or lesser number of shares of common stock
of the surviving corporation is issuable to holders of Common Stock of
the Corporation outstanding immediately prior to such merger or
consolidation, the Conversion Price in effect immediately prior to such
merger or consolidation shall be adjusted in the same manner as though
there were a subdivision or combination of the outstanding shares of
Common Stock of the Corporation. The Corporation will not effect any
such consolidation or merger, or any sale of all or substantially all
of its assets and
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properties, unless prior to the consummation thereof the successor
corporation (if other than the Corporation) resulting from such
consolidation or merger or the corporation purchasing such assets shall
assume by written instrument (in form reasonably satisfactory to the
holders of at least a majority of the shares of Series C Preferred
Stock at the time outstanding), executed and mailed or delivered to
each holder of shares of Series C Preferred Stock at the last address
of such holder appearing on the books of the Corporation, the
obligation to deliver to such holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, such holder
may be entitled to receive.
5H. Automatic Conversion. In the event that, at
any time while any of the Series C Preferred Stock shall be
outstanding, the Corporation shall complete an underwritten public
offering involving the sale by the Corporation of shares of Common
Stock (i) at a per share price to the public of not less than 2.5 times
the Conversion Price in effect at the time and (ii) in which the gross
proceeds to the Corporation and/or selling stockholders, as the case
may be, before deduction of underwriters' discounts and commissions and
expenses of the offering, are at least $15,000,000, then all
outstanding shares of Series C Preferred Stock shall, automatically and
without further action on the part of the holders of the Series C
Preferred Stock, be converted into shares of Common Stock in accordance
with the terms of paragraph 5A with the same effect as if the
certificates evidencing such shares had been surrendered for
conversion, such conversion to be effective simultaneously with the
closing of such public offering; provided, however, that certificates
evidencing the shares of Common Stock issuable upon such conversion
shall not be issued except on surrender of the certificates for the
shares of the Series C Preferred Stock so converted.
5I. Notice of Adjustment. Upon any adjustment of
the Conversion Price, then and in each such case the Corporation shall
give written notice thereof, by first class mail, postage prepaid,
addressed to each holder of shares of Preferred Stock at the address of
such holder as shown on the books of the Corporation, which notice
shall state the Conversion Price resulting from such adjustment,
setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
5J. Other Notices. In case at any time:
(1) the Corporation shall declare any dividend
upon its Common Stock payable in cash or stock or make any
other distribution to the holders of its Common Stock;
(2) the Corporation shall offer for subscription
pro rata to the holders of its Common Stock any additional
shares of stock of any class or other rights;
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(3) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation, or a
consolidation or merger of the Corporation with, or a sale of
all or substantially all its assets to, another corporation,
or any acquisition of beneficial ownership by any person or
group of voting stock of the Corporation representing more
than 50% of the voting power of all outstanding shares of such
voting stock, whether by way of merger or consolidation or
otherwise;
(4) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Corporation; or
(5) the Corporation shall take any action or
there shall be any event which would result in a redemption of
the Series C Preferred Stock pursuant to subparagraph 3A,
then, in any one or more of said cases, the Corporation shall give, by
first class mail, postage prepaid, addressed to each holder of any
shares of Series C Preferred Stock at the address of such holder as
shown on the books of the Corporation, (a) at least 20 days' prior
written notice of the date on which the books of the Corporation shall
close or a record shall be taken for such dividend, distribution or
subscription rights or for determining rights to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least 20 days' prior written
notice of the date when the same shall take place, and (c) in the case
of any event which would result in an automatic conversion of the
Series C Preferred Stock pursuant to subparagraph 5H, at least 20 days'
prior written notice of the date on which the same is expected to be
completed. Such notice in accordance with the foregoing clause (a)
shall also specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holders of Common Stock
shall be entitled thereto, and such notice in accordance with the
foregoing clause (b) shall also specify the date on which the holders
of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation
or winding up, as the case may be.
5K. Stock to be Reserved. The Corporation will
at all times reserve and keep available out of its authorized Common
Stock or its treasury shares, solely for the purpose of issue upon the
conversion of the Series C Preferred Stock as herein provided, such
number of shares of Common Stock as shall then be issuable upon the
conversion of all outstanding shares of Series C Preferred Stock. The
Corporation covenants that all shares of Common Stock which shall be so
issued shall be duly and validly issued and fully paid and
nonassessable and free from all taxes, liens and charges with respect
to the issue thereof and, without limiting the generality of the
foregoing, the Corporation
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covenants that it will from time to time take all such action as may be
requisite to assure that the par value per share of the Common Stock is
at all times equal to or less than the effective Conversion Price. The
Corporation will take all such action as may be necessary to assure
that all such shares of Common Stock may be so issued without violation
of any applicable law or regulation, or of any requirements of any
national securities exchange upon which the Common Stock of the
Corporation may be listed. The Corporation will not take any action
which results in any adjustment of the Conversion Price if the total
number of shares of Common Stock issued and issuable after such action
upon conversion of the Series C Preferred Stock would exceed the total
number of shares of Common Stock then authorized by the Corporation's
Articles of Incorporation.
5L. No Reissuance of Series C Preferred Stock.
Shares of Series C Preferred Stock which are converted into shares of
Common Stock as provided herein shall not be reissued.
5M. Issue Tax. The issuance of certificates for
shares of Common Stock upon conversion of the Series C Preferred Stock
shall be made without charge to the holders thereof for any issuance
tax in respect thereof, provided that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name
other than that of the holder of the Series C Preferred Stock which is
being converted.
5N. Closing of Books. The Corporation will at no
time close its transfer books against the transfer of any Series C
Preferred Stock or of any shares of Common Stock issued or issuable
upon the conversion of any shares of Series C Preferred Stock in any
manner which interferes with the timely conversion of such Series C
Preferred Stock.
5O. Definition of Common Stock. As used in this
paragraph 5, the term "Common Stock" shall mean and include the
Corporation's authorized Common Stock, $.0001 par value as constituted
on the date of filing these Second Amended and Restated Articles of
Incorporation and shall also include any capital shares of any class of
the Corporation thereafter authorized which shall not be limited to a
fixed sum or percentage of par value in respect of the rights of the
holders thereof to participate in dividends or in the distribution of
assets upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation; provided however, that the Common Stock
receivable upon conversion of shares of the Class A Preferred Stock of
the Corporation, or in case of any reorganization or reclassification
of the outstanding shares of the Corporation, the stock, securities or
assets provided for in paragraph 5G, shall include only shares
designated as Common Stock of the Corporation on the date of filing
these Second Amended and Restated Articles of Incorporation.
6. Voting. Except as otherwise required by law or these
by the Articles of Incorporation of the Corporation or this Series C
Designation, the holders of the Series C
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<PAGE> 36
Preferred Stock and the holders of Common Stock shall be entitled to notice of
any stockholders meeting in accordance with the By-laws of the Corporation and
to vote together as a single class upon any matter submitted to the stockholders
for a vote as follows: (i) the holders of Series C Preferred Stock shall have
one vote for each full share of Common Stock into which their respective shares
of Series C Preferred Stock are convertible on the record date for the vote and
(ii) the holders of Common Stock shall have one vote per share of Common Stock.
7. Restrictions. At any time when shares of Series C
Preferred Stock are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or
by this Series C Designation, and in addition to any other vote required by law,
without the prior consent (which consent shall not be unreasonably withheld in
the case of clause (d) below) of the holders of a majority of the shares of
outstanding Series C Preferred Stock, given in person or by proxy, either in
writing within 20 days after notice from the Company or at a special meeting
called for that purpose, at which meeting the holders of the shares of such
Series C Preferred Stock shall vote together as a class:
(a) The Corporation will not (i) create or
authorize the creation of any additional class or series of shares
unless the same ranks junior to the Series C Preferred Stock as to the
distribution of assets upon the liquidation, dissolution or winding up
of the Corporation, (ii) increase the authorized amount of the Series C
Preferred Stock or the authorized amount of any additional class or
series of shares unless the same ranks junior to the Series C Preferred
Stock as to the distribution of assets upon the liquidation,
dissolution or winding up of the Corporation, or (iii) create or
authorize any obligation or security convertible into shares of Series
C Preferred Stock or into shares of any other class or series unless
the same ranks junior to the Series C Preferred Stock as to the
distribution of assets upon the liquidation, dissolution or winding up
of the Corporation, whether any such creation or authorization or
increase shall be by means of amendment of the Articles of
Incorporation, designation of a series of the Serial Preferred Stock of
the Corporation, merger, consolidation or otherwise.
(b) The Corporation will not amend, alter or
repeal its Articles of Incorporation or By-laws in any manner, or file
any directors' resolutions pursuant to OCGA 14-2-602 containing any
provision, in either case, which adversely affects the respective
preferences, qualifications, special or relative rights or privileges
of the Series C Preferred Stock or which in any manner adversely
affects the Series C Preferred Stock or the holders thereof.
(c) The Corporation will not (i) consolidate or
merge with or into any other corporation or other entity, (ii) sell or
otherwise dispose of all or substantially all of its properties and
assets as an entirety to any other person, or (iii) liquidate, dissolve
or wind up its business.
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<PAGE> 37
(d) The Corporation will not, directly or
indirectly, acquire any other business entity, or the assets of any
other business entity as a going concern.
(e) The Corporation will not, directly or
indirectly, enter into any material transaction with any affiliate (as
defined in Rule 405 under the Securities Act of 1933, as amended) of
the Corporation unless such affiliate is a wholly-owned subsidiary of
the Corporation.
(f) The Corporation will not, directly or
indirectly, engage in any business other than the business in which it
was engaged immediately after the initial issuance of the Series C
Preferred Stock.
(g) The Corporation will not enter into any
agreement after the date of filing of these Amended and Restated
Articles of Incorporation which would restrict its right to pay
dividends on the Series C Preferred Stock in shares of Series C
Preferred Stock.
(h) The Corporation will not repurchase, redeem
or retire any shares of capital stock of the Corporation other than
shares of Series C Preferred Stock, provided that no such vote shall be
required for the redemption of the Corporation's Class A Convertible
Preferred Stock in accordance with the terms of the Corporation's
Articles of Incorporation, and provided, further, that no such vote
shall be required for the redemption of (i) the Series D Senior
Redeemable Preferred Stock, (ii) the Corporation's Class A Convertible
Preferred Stock, (iii) the Warrants or (iv) the shares of Common Stock
issuable upon exercise of the Warrants.
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<PAGE> 38
APPENDIX C
DESIGNATION IN RESPECT OF
SERIES D SENIOR REDEEMABLE PREFERRED STOCK
1. Establishment and Designation of Series. There is hereby
established a series of Preferred Stock designated "Series D Senior Redeemable
Preferred Stock" ("Series D Preferred Stock"), to consist of an aggregate of
100,000 shares, no par value, and to have the preferences, limitations and
relative rights, including voting rights, as set forth herein.
2. Dividends. The holders of Series D Preferred Stock shall be
entitled to receive out of funds legally available for the declaration of
dividends, cumulative dividends in cash, when, as and if declared by the Board
of Directors, at the annual rate of $8.00 per share, payable quarterly on the
last day of each January, April, July and October of each year, beginning
January 31, 2000, except if such date is a Saturday, Sunday or legal holiday
then such dividend shall be payable on the first immediately preceding day which
is not a Saturday, Sunday or legal holiday (the date such dividends are payable
hereunder is referred to as a "Dividend Payment Date"). Such dividends shall
commence to accrue on the shares of Series D Preferred Stock and be cumulative
from and after the date of issuance of such shares of Series D Preferred Stock
and shall be deemed to accumulate and shall be payable for any period less than
a full quarter on the basis of a year of 360 days with equal 30 day months. So
long as any of the Series D Preferred Stock remains outstanding, no cash
dividends shall be paid upon, or declared or set apart for, the Common Stock,
$.01 par value per share of the Corporation ("Common Stock") or any other
capital stock of the Corporation ("Common Stock") or any other capital stock of
the Corporation (including all other classes of preferred Stock), unless and
until all cumulative dividends on the then outstanding shares of Series D
Preferred Stock for all past dividend periods at all times shall have been paid
in full in cash and not by PIK Dividends (as defined below). Subject to the
limitation set forth in the following sentence, at the option of the Company,
the dividends pursuant to Section 2 shall be payable by the issuance and
delivery on the applicable Dividend Payment Date of additional Series D
Preferred Stock in an aggregate number of shares equal to (a) the aggregate
number of outstanding shares of Series D Preferred Stock on the Dividend Payment
Date times $11.00, (b) divided by $100, rounded up to the nearest whole share of
Series D Preferred Stock (the "PIK Dividends"). The right of the Company to make
PIK Dividends shall only be available with respect to dividends payable on or
prior to October 31, 2001 and for all dividends payable after October 31, 2000,
the Company shall pay all such dividends in cash on the due date thereof
3. Preference on Liquidation, Dissolution or Winding Up.
A. Definition. A consolidation or merger of the
Corporation or a sale or transfer of substantially all of its assets as
an entirety, may at the option of the holders of a majority of the
issued and outstanding Series D Preferred Stock, be regarded as
"liquidation, dissolution or winding up of the affairs of the
Corporation" within the meaning of this Section 3.
B. Ranking. With respect to the payment of dividends,
redemption rights and the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the Series D Preferred Stock shall rank senior to all
other capital stock of the Corporation.
<PAGE> 39
C. Liquidation. During any proceedings for the voluntary
or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of the Series D Preferred Stock shall be
entitled to receive $100 in cash for each share of Series D Preferred
Stock (together with all accrued and unpaid dividends on each such
share of Series D Preferred Stock) (the "Liquidation Value"), before
any distribution of the assets of the Corporation shall be made to the
holders of any shares of the other capital stock of the Corporation, or
funds necessary for such payment shall have been set aside in trust for
the account of the holders of the outstanding Series D Preferred Stock
so as to be and continue available therefor. If upon such liquidation,
dissolution or winding up, the assets distributable to the holders of
the Series D Preferred Stock shall be insufficient to permit the
payment to them of the Liquidation Value per share, the assets of the
Corporation shall be distributed to the holders of the Series 1)
Preferred Stock ratably until they shall have received the full amount
to which they would otherwise be entitled in accordance with the terms
of Articles of Incorporation of the Corporation. If the assets of the
Corporation are sufficient to permit the payment of such amounts to the
holders of the Series D Preferred Stock, the remainder of the assets of
the Corporation, if any, after the distributions as aforesaid shall be
distributed and divided ratably among the holders of the other capital
stock of the Corporation then outstanding according to their respective
shares.
4. Voting Rights. In addition to any voting rights provided by
law, the holders of shares of Series D Preferred Stock shall have the following
voting rights
A. Except as otherwise provided herein, the holder of
the Preferred Stock shall have the exclusive right, voting separately
as a single class, to elect one director of the Corporation.
B. In addition to any other vote or consent of
shareholders required by law or by the Articles of Incorporation of the
Corporation, the consent of the holders of the Preferred Stock, voting
separately as a single class, shall be necessary in advance for:
(1) The issuance of any additional sham (or options,
warrants or other rights to acquire such shares or securities
Convertible into such shares) of Series D Preferred Stock or other
classes of preferred stock which rank senior or on parity with the
Series D Preferred Stock as to dividends, redemption rights and/or
liquidation preferences; and
(2) Any waiver or amendment of the Securities Purchase
Agreement dated on or about November 1, 1999, by and among the
Corporation, Stratford Capital Partners, L.P. and Stratford Equity
Partners, L.P. (the "Securities Purchase Agreement") or any other
Transaction Document (as defined in the Securities Purchase Agreement).
C. The foregoing rights of holders of shares of Series D
Preferred Stock to take any actions as provided in this Section 4 may
be exercised at any annual meeting of shareholders or at a special
meeting of I shareholders held for such purpose or at any adjournment
thereof or by written consent of the holders of the number of shares of
Series D Preferred Stock required to authorize such action at an annual
or special meeting of shareholders.
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<PAGE> 40
5. Redemption. The Corporation may redeem, and shall be required
to redeem, shares of Series D Preferred Stock, as provided in this Section 5;
provided the at the Corporation is legally permitted to then redeem shares of
Series D Preferred Stock in accordance with the applicable provisions of the
Georgia Business Corporation Code:
A. Mandatory Redemption. Any holder of Series D
Preferred Stock may require, at such holder's sole discretion, the
Corporation to redeem all of its shares of Series D Preferred Stock at
a price equal to the Liquidation Value per share on the date fixed for
redemption ("Redemption Price"), upon the occurrence of one or more of
the following events or dates:
(1) an Event of Default (as defined in tie Securities
Purchase Agreement) other than a Sale (as defined in the
Securities Purchase Agreement)
(2) a Qualified Public Offering (as defined in the
Securities Purchase Agreement);
(3) November 1, 2006; or
(4) any Sale.
B. Optional Redemption. The Corporation may, at its sole
discretion, redeem shares of Series D Preferred Stock at any time at
the Redemption Price, provided, that, any partial redemption shall be
an amount not less than $750,000 and in an amount which is an integral
multiple of $50,000.
C. Notice of redemption. At least 20 days prior to the
redemption of any shares of Series D Preferred Stock the Corporation
shall transmit notice to each holder of record of the shares of Series
D Preferred Stock to be redeemed at such holder's address set forth in
the stock records of the Corporation sent by first class mail postage
prepaid. Such notice shall state the date fixed for redemption (the
"Redemption Date") and the redemption price and shall call upon the
holder to surrender to the Corporation on the Redemption Date at the
place designated in the notice of such holder's certificate or
certificates representing shares of Series D Preferred Stock to be
redeemed. In case of redemption of only a portion of the outstanding
Series D Preferred Stock, the redemption shall be made pro rata. On or
after the Redemption Date, each holder of shares of Series D Preferred
Stock called for redemption shall surrender the certificate or
certificates evidencing such shares to the Corporation at the place
designated in such notice in exchange for payment of the Redemption
Price. If funds legally available for such purpose are not sufficient
for the redemption, then the certificates representing shares of Series
D Preferred Stock surrendered for redemption shall be deemed not to be
surrendered and such shares shall remain outstanding. If such notice of
redemption shall have been duly given, and if on the Redemption Date
funds necessary for the redemption (including an amount equal to the
accrued but unpaid dividends through the Redemption Date) shall have
been deposited by the Corporation with a bank or trust company,
designated in such notice, having capital, surplus and undivided
profits aggregating at least $50,000,000 according to its then latest
published statement of condition, in trust for the pro rata benefit of
the holders of the shares
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<PAGE> 41
so called for redemption, and the Corporation may otherwise redeem
shares of Series D Preferred Stock pursuant to this Section 5, then,
notwithstanding that any certificate evidencing shares of Series D
Preferred Stock called for redemption shall not have been surrendered,
the shares so called for redemption and represented by such certificate
shall be deemed to be no longer outstanding and, except for the right
of the holder thereof to receive the redemption price upon surrender of
such certificate, all rights with respect to the shares so called for
redemption shall forthwith cease and terminate as of the Redemption
Date. Notwithstanding the foregoing, in the event of any redemption
pursuant to Section 5.A (1) and (3) above, the Redemption Price may, at
the election of the Company, be paid by delivery of a Put Note (as
defined in the Securities Purchase Agreement) to the holders of the
Series D Preferred Stock.
6. Retirement of Shares. Any shares of Series D Preferred Stock
redeemed, purchased or otherwise acquired by the Corporation shall be deemed
retired and shall be canceled and may not under any circumstances thereafter be
reissued or otherwise disposed of by the Corporation.
7. Conversion. The shares of Series D Preferred Stock are not
convertible into Common Stock.
4
