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Exhibit 2(i)
Articles of Incorporation
CERTIFICATE OF INCORPORATION
OF
THE GENEVA AMERICAN GROUP, INC.
ARTICLE I
NAME
The name of this Corporation is The Geneva American Group, Inc.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware is
located at 1209 Orange Street, Wilmington, county of New Castle, Delaware 19801.
The name of its registered agent is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be now or hereafter organized under the General
Corporation Law of Delaware.
ARTICLE IV
CAPITALIZATION
The total number of shares of capital stock which this Corporation shall
have authority to issue is Five Million (5,000,000) share of $0.01 (one cent)
par value common shares. All or any part of the shares of the common stock may
be issued by the Corporation from time to time and for such consideration as may
be determined and fixed by the Board of Directors, as provided by law, with due
regard to the interest of the existing shareholders; and when such consideration
has been received by the Corporation, such shares shall be deemed fully paid and
non-assessable.
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ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator is as follows:
Name Address
---- -------
Charles R. Brown 47 West 200 South, #300
Salt Lake City UT 84101
ARTICLE VI
DIRECTORS
The names and mailing addresses of the persons who are to serve as the
directors until the first annual meeting of the stockholders or until their
successors are elected and qualified are as follows:
Name Address
---- -------
Charles E. Campbell 2148 Evans Road
Flossmoor, Illinois 60422
Charles P. Villeneuve 4117 Lavoisier
Boisbriand Quebec, Canada J7E4H5
Louis H. Elwell, III 499 Thornall Street
Edison, New Jersey 08837
ARTICLE VII
NUMBER OF DIRECTORS
The number of directors constituting the Board of Directors shall be that
number as shall be fixed by, or in the manner provided in, the bylaws of the
Corporation.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter or repeal the
bylaws of the Corporation, subject to such restrictions upon such powers as may
be imposed by the stockholders in any bylaws adopted by them from time to time.
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ARTICLE VIII
LIMITATION ON DIRECTORS LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the directors
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
ARTICLE IX
INDEMNIFICATION
1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a proceeding), by reason of the fact that he or she is or was a
director, officer or employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans (hereinafter an
indemnitee), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitees heirs, executors and administrators; provided,
however, that, except as provided in paragraph (b) hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereto)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
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an advancement of expenses); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery of the Corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal that such indemnitee is not entitled to be indemnified for such expenses
under this Article or otherwise (hereinafter an undertaking.)
2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under paragraph 1 of
this Article is not paid in full by the Corporation within sixty (60) days after
a written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty (20) days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) any suit by the Corporation to recover any advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
the applicable standard of conduct set forth in the Delaware General Corporation
Law. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right hereunder, or by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden or providing that the indemnitee is not entitled to be indemnified or to
such advancement of expenses under this Article or otherwise shall be on the
Corporation.
3. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Article shall not be exclusive of any
other rights which any person may have or hereafter acquire under any statute,
this Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
4. INSURANCE. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
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5. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The Corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification and to the advancement of expenses, to any agent of the
Corporation to the fullest extent of the provisions of this Article with respect
to the indemnification and advancement of expenses of directors, officers and
employees of the Corporation.
ARTICLE X
CONTRACTS
No contract or other transaction between this Corporation and any other
corporation shall be affected by the fact that a Director or officer of this
Corporation is interested in or is a Director or officer of such other
corporation; and any Director, individually or jointly, may be a party to or may
be interested in any corporation or transaction of this Corporation or in which
this Corporation is interested; and no contract or other transaction of this
Corporation with any person, firm or corporation shall be affected by the fact
that any Director of this Corporation is a party to or is interested in such
contract, act or transaction or any way connected with such person, firm or
corporation, and every person who may become a Director of this Corporation is
hereby relieved from liability that might otherwise exist from contracting with
the Corporation for the benefit of himself or any firm, association or
corporation in which he may be in any way interested, provided said Director
acts in good faith.
ARTICLE XI
AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by the laws of Delaware, and all rights and powers
conferred herein upon stockholders and directors are granted subject to this
reservation.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that the facts herein stated are true, and accordingly, have hereunto set my
hand and seal this 12th day of January, 1990.
----------------------------------
Charles R. Brown
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STATE OF UTAH )
:ss.
COUNTY OF SALT LAKE )
On the 12th day of January, 1990, before me personally came Charles R.
Brown, the person who signed the foregoing Certificate of Incorporation, known
to me personally to be such, and acknowledged that said Certificate is his act
and deed and that the facts stated therein are true.
-----------------------------
Notary Public
Residing at:
-----------------
My Commission Expires:
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF THE GENEVA AMERICAN GROUP, INC.
The Geneva American Group, Inc. a corporation organized and existing under
and by virtue of the General Corporation law of the State of Delaware. DOES
HEREBY CERTIFY:
FIRST: That a meeting of the Board of Directors of The Geneva American
Group, Inc. resolutions were duly adopted setting forth proposed amendments to
the Certificate of Incorporation of said corporation, declaring said amendments
to be advisable and calling a meeting of the stockholders of said corporation
for consideration thereof. The resolutions setting forth the proposed amendments
are as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing Article I thereof so that, as amended said Article shall be
and read as follows:
The name of this Corporation is QRS Music, Inc.
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing Article IV thereof so that, as amended said Article shall be
and read as follows:
The total number of shares of all classes of capital stock which this
Corporation has authority to issue is Forty-two Million (42,000,000) shares
which are divided into two classes as follows:
40,000,000 of $0.01 par value common shares.
2,000,000 $0.01 of par value Class A preferred stock.
All or any part of the shares of capital stock may be issued by the
Corporation from time to time and for such consideration as may be determined
and fixed by the Board of Directors, as provided by law, with due regard to the
interest of the existing shareholders; and when such consideration has been
received by the Corporation, such shares shall be deemed fully paid and
non-assessable.
The designations, powers, preferences, rights, qualifications, limitation,
and restrictions of and on the Class A preferred stock shall be as determined by
resolution of the Board of Directors, which authority is hereby expressly
granted in the maximum scope and to the maximum extend allowed by law.
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SECOND: That thereafter, pursuant to resolution of its Board of Directors,
a special meeting of the stockholders of said corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation law
of the State of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation law of the State of
Delaware.
IN WITNESS WHEREOF, said the Geneva American Group, Inc. has caused this
certificate to be signed by Charles F. Campbell, its President, and attested by
Louis H. Elwell, III, its Secretary, the _____ day of _________, 1996.
By:
-----------------------------
Charles E. Campbell
President
ATTEST:
By:
--------------------------
Louis H. Elwell, III
Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION OF QRS MUSIC, INC.
QRS Music, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That by unanimous consent the Board of Directors of QRS Music, Inc.
adopted resolutions duly setting forth proposed amendments to the Certificate of
Incorporation of said corporation, declaring said amendments to be advisable and
calling a meeting of shareholders of said corporation for consideration thereof.
The resolutions setting forth the proposed amendment is as follows:
RESOLVED, that the Company shall amend its Certificate of Incorporation to
change its name to QRS Music Technologies, Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of the shareholders of said corporation was duly called and
held, upon notice in accordance
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with Section 222 of the General corporation law of the State of Delaware at
which meeting the necessary number of shares as required by statute were voted
in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said QRS Music, Inc. has caused this certificate to be
signed by its President, Richard R. Dolan and attested by Ann A. Jones, Its
Secretary, this _____ day of ____________________, 1997.
By:
----------------------------
Richard R. Dolan
President
ATTEST:
By:
------------------------
Ann A. Jones
Secretary
----------------------------
Notary Public
Residing at:
-----------------
My Commission Expires:
------------------------
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STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
QRS MUSIC TECHNOLOGIES, INC., a corporation organized under the laws of
Delaware, the charter of which was voided for non-payment of taxes, now desires
to procure a restoration, renewal and revival of its charter, and hereby
certifies as follows:
1. The name of this corporation is QRS MUSIC TECHNOLOGIES, INC.
2. Its registered office in the State of Delaware is located at 30 Old
Rudnick Lane, City of Dover, zip code 19901, County of Kent. The name
and address of its registered agent is Lexis Document Services, Inc.,
30 Old Rudnick Lane, Suite 100, Dover, Delaware 19901.
3. The date of filing of the original Certificate of Incorporation in
Delaware was January 16, 2000.
4. The date when restoration, renewal and revival of the charter of this
company is to commence is the 28th day of February, same being prior
to the date of the expiration of the charter. This renewal and revival
of the charter of this corporation is to be perpetual.
5. This corporation was duly organized and carried on the business
authorized by its charter until the 1st day of March 1999, at which
time its charter became inoperative and void for non-payment of taxes
and this certificate for renewal and revival is filed by authority of
the duly elected directors of the corporation in accordance with the
laws of the State of Delaware.
IN TESTIMONY WHEREOF, and in compliance with the provisions of Section 312
of the General Corporation Law of the State of Delaware, as amended, providing
for the renewal, extension and restoration of charters, Ann A. Jones, the last
and acting authorized officer hereunto set her hand to this certificate this 1st
day of February 2000.
By
--------------------------------
Authorized Officer
Name Ann A. Jones
Title Treasurer
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CERTIFICATE OF DESIGNATION
QRS MUSIC, INC.
Formerly known as
The Geneva American Group, Inc.
QRS Music, Inc. (formerly known as The Geneva American Group, Inc.), a
corporation organized and existing under the laws of the State of Delaware, the
Certificate of Incorporation of which was filed in the office of the Secretary
of State of Delaware on January 16, 1990, and recorded in the office of the
Recorder of Deeds for the County of Kent, State of Delaware, on January 16,
1990, does, by its president and its secretary, hereby certify as follows:
FIRST: That by amendment to the Certificate of Incorporation duly filed on
July 24, 1996, the total number of shares which this corporation may issue is
slated by paragraph IV to be as follows: "The total number of shares of capital
stock authorized and which may be issued by the corporation is 42,000,000
shares, all with $.01 par value, of which 40,000,000 shares shall be common
stock and 2,000,000 shares shall be Class A preferred stock"; and, by said
amendment to the Certificate of Incorporation, the shares of preferred stock are
authorized to be issued in one or more series as may be determined from time to
time by the board of directors, each of such series to be distinctly designated.
SECOND: That pursuant to the authority so vested in the board of directors
by the Certificate of Incorporation and amendment thereto, the board of
directors, by unanimous written consent, adopted the following resolutions:
NOW THEREFORE BE IT RESOLVED AS FOLLOWS: The Class A preferred stock shall
consist of 2,000,000 shares, $0.01 par value. All shares of Class A preferred
stock shall be identical with each other in all respects.
FURTHER RESOLVED:
I.
PART 1. DIVIDENDS.
1.01 General Dividend Obligation. The corporation shall pay to the Holders
of the Class A preferred stock out of the assets of the Corporation at any time
available for the payment of dividends, under the provisions of the General
Corporation Law of the State of Delaware, dividends at the times and in the
amounts provided for in this Part.
1.02 Accrual of Dividends. Dividends on each share of Class A preferred
stock shall be cumulative from the date of issuance of such share of Class A
preferred stock, whether or not at the time such dividend shall accrue or become
due or at any other time there shall be profits, surplus or other funds of the
Corporation legally available for the payment of dividends. Dividends shall
accrue on each share of Class A preferred stock (at the rate and in the manner
prescribed by Sections 1.02 and 1.03) from and including the date of issuance of
such share to and until such shares are not outstanding. For purposes of this
Section, the date on which the Corporation shall initially issue any
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Class A preferred stock share shall be deemed to be the "date of issuance" of
such share, regardless of how many times transfer of such share shall be made on
stock records maintained by or for the Corporation and regardless of the number
of certificates which may be issued to evidence such share (whether by reason of
transfers of such share or for any other reason).
1.03 Payment of Dividends. Dividends shall accrue on each share of Class A
preferred stock at the rate of 6% per annum of the Liquidation Value. Dividends
shall be payable on Class A preferred stock on the last day of each June and
December, and each such day is herein called a "Dividend Payment Date" On each
Dividend Payment Date, all dividends which should have accrued on each Class A
preferred stock share then outstanding during the calendar quarter ending upon
such Dividend Payment Date shall be deemed to become "due" for all purposes of
this Section, regardless of whether the Corporation shall be able or legally
permitted to pay such dividend on such Dividend Payment Date. If any dividend on
any Class A preferred stock share shall for any reason not be paid at the time
such dividend shall become due, then such dividend in arrears shall be paid as
soon as payments of same shall be permissible under the provisions of the
General Corporation Law of the State of Delaware. Until such dividend in arrears
is paid, and so long as the Class A preferred stock is outstanding, dividends
shall continue to accrue on each Class A preferred stock share but the
percentage rate expressed herein shall be applied only to the Liquidation Value
thereof and not upon all dividends in arrears thereon (including dividends
computed pursuant to this sentence).
1.04 Distribution of Partial Dividend Payments. If at any time the
Corporation shall pay less than the total amount of dividends due on outstanding
Class A preferred stock at the time of such payment, such payment shall be
distributed among the holders of Class A preferred stock so that an equal amount
shall be paid with respect to each outstanding share of Class A preferred stock.
PART 2. RESERVED.
PART 3. LIQUIDATION.
3.01 Rights of Holders of Class A Preferred Stock. In the event of any
voluntary or involuntary liquidation (whether complete or partial), dissolution
or winding up of the Corporation, the holders of Class A preferred stock shall
be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings, an
amount in cash equal to the sum of $4 per share (the "Liquidation Value"), plus
all unpaid dividends accrued thereon to the date of final distribution. No
distribution shall be made on any Junior Securities by reason of any voluntary
or involuntary liquidation (whether complete or partial), dissolution or winding
up of the Corporation unless each holder of any Class A preferred stock shall
have received all amounts to which such holder shall be entitled under this
Section 3.01.
3.02 Allocation of Liquidation Payments Among Holders of Class A Preferred
Stock. If upon any dissolution, liquidation (whether complete or partial), or
winding up of the Corporation, the assets of the Corporation available for
distribution to holders of Class A preferred stock (hereinafter in this Section
3.02 called the "Total Amount Available") shall be insufficient to pay the
holders of outstanding Class A preferred stock, the full amounts to which they
shall be entitled under Section 3.01, each holder of Class A preferred stock
shall be entitled to receive an amount
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equal to the product derived by multiplying the Total Amount Available times a
fraction the numerator of which shall be the number of shares of Class A
preferred stock held by such holder and the denominator of which shall be the
total number of shares of Class A preferred stock then outstanding.
PART 4. ADDITIONAL PROVISIONS GOVERNING CLASS A PREFERRED STOCK.
4.01 Voting Rights. Each share of Class A preferred stock shall be entitled
to one vote with respect to all matters submitted to a vote of the Corporation's
shareholders, such voting rights to be indistinguishable from the voting rights
attributed to shareholders of the Corporation's common stock except the
affirmative vote of the holders of each share of Class A preferred stock then
outstanding shall be required to authorize each of the following: (1) the
issuance of any additional shares of Class A preferred stock, (ii) the issuance
of any additional shares of a class or series of stock (but not the issuance of
any form of debt) ranking prior to or on a parity with the Class A preferred
stock as to dividends or as to distribution upon liquidation, dissolution or
winding up, (iii) any amendment, alteration or repeal of any of the provisions
of these resolutions or of the Corporation's Certificate of Incorporation so as
to alter or change the preferences, special rights, privileges or voting or
other powers of the Class A preferred stock ; or (iv) any proposed consolidation
or merger of the Corporation with or into any other corporation or corporations,
any proposed reincorporation, liquidation, dissolution or winding up of the
Corporation or any proposed sale, lease, transfer or other disposition of all or
substantially all of the assets of the Corporation.
4.02 Method of Payment. (a) Ordinary Payments. Except as provided below,
any payment at any time due with respect to any share of Class A preferred stock
(including but not limited to any payment of any dividend due on such share, and
any payment due on such share under Part 3) shall be made by means of a check
(drawn upon funds which are immediately available not later than the due date of
the payment being made by such check) to the order of the record holder of such
share at the address for such record holder shown on the Corporation's records,
which check shall be mailed by United States mail (by first class or any other
class reasonably expected to effect earlier delivery at such time so that such
check should reasonably be expected to arrive at the address to which it is
required under this sentence to be mailed) not later than the due date of the
payment being made by such check. (b) Optional Dividend Payment. The holder of
shares of Class A preferred stock may notify the Corporation that he elects to
receive dividend payments in additional shares of Class A preferred stock. Upon
receipt by the Corporation of such election by a holder, such election shall
become permanent and irrevocable. Dividend payment in shares shall be calculated
based upon a $4 per share of Class A preferred stock value and the Corporation
shall thereafter issue additional shares of Class A preferred stock in a number
calculated by dividing the total cash amount of the dividend when due by four.
The resulting number shall represent the number of new Class A preferred shares
to be issued which shall be identical in all respects to the prior Class A
preferred shares. As a condition to issuance, the Corporation may require holder
to execute and deliver suitable securities documents. (c) When Payment Deemed to
Have Been Made. Any payment at any time due with respect to any share of Class A
preferred stock (including but not limited to any payments of any dividend due
on such share (including payment pursuant to Section 4.02(b)) and any payment
due on such share under Part 3) shall be deemed to have been paid by the
Corporation (subject to collection by the preferred shareholder) at the time
such payment (whether in the form
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of funds or shares) shall have been deposited in the mail addressed to the
registered holder at his registered address.
4.03 Amendment and Waiver. No change in the provision of this Section
affecting any interests of the holders of any shares of Cumulative Preferred
Stock shall be binding or effective unless such change shall have been approved
in writing by the holders of at least 66-2/3% of the Class A preferred stock
outstanding at the time such change shall be made.
PART 5. CONVERSION RIGHTS.
5.01 Conversion Period. Except as expressly herein provided otherwise, the
registered holder of the Class A preferred stock may exercise all or a portion
of the conversion rights at any time or from time to time after the date of
issuance.
5.02 Exercise Procedure. The conversion rights of the Class A preferred
stock shall be deemed to have been exercised (the "Exercise Time") when the
Corporation shall have received the certificate evidencing such shares
appropriately endorsed to reflect conversion thereof; whereupon, the Corporation
shall issue so many shares of its common stock ("Conversion Stock") computed on
the basis of one share of commons stock for one share of Class A preferred stock
(the "Exchange Ratio"). The conversion shall be deemed to have occurred upon
receipt of the Class A preferred stock certificates endorsed for conversion and
the holder at such time shall be deemed to be a registered holder of the
appropriate number of shares of the Corporation's common stock.
5.03 Delivery of New Certificates. Certificates for Conversion Stock shall
be delivered to the holder named therein within 21 days after the Exercise Time.
Unless all of the Class A preferred stock evidenced by the certificate delivered
shall have converted, the Corporation shall, within a 14-day period after
receipt of the Class A preferred stock certificates from the stockholder,
prepare a new certificate substantially identical to that surrendered
representing the balance of the Class A preferred stock formerly represented by
the certificate which shall not have been converted and shall, within the said
30-day period, deliver such certificate to the person designated as the holder
thereof.
5.04 Dividends. Effective at the Exercise Time, all obligations of the
Corporation with respect to the Class A preferred stock, including the
obligation to pay dividends, shall cease. The shares of Cumulative Preferred
Stock remaining outstanding shall continue to earn cumulative dividends at the
percentage rates and in the manner provided herein.
5.05 Antidilution. Any capital reorganization, reclassification,
consolidation, merger or sale of all or substantially all of the Corporation's
assets to another person or entity which is effected in such a way that holders
of the Corporation's common stock are entitled to receive, at their election in
their sole and exclusive discretion (either directly or upon subsequent
liquidation), stock, securities or assets with respect to or in exchange for the
Corporation's common stock is referred to herein as an "Organic Change." If,
prior to conversion, an Organic Change shall have occurred, the holder shall be
entitled to receive, upon conversion of the Class A preferred shares, the
highest amount of securities, cash or other property to which the holder would
actually have been entitled as a stockholder upon consummation of the
transaction resulting in the Organic Change if the holder
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had converted to Class A preferred shares immediately prior to the consummation
of said transaction (subject to adjustments from and after the consummation as
nearly equivalent as possible to the other adjustments provided for in this
"Antidilution section"). If, however, a purchase, tender or exchange offer shall
have been mad to and accepted by the holders of more than 50% of the outstanding
shares of common stock and if the holder so designates in its notice of election
to convert given to the Corporation, the holder shall be entitled to receive, in
lieu of the amount specified in the immediately preceding sentence, the highest
amount of securities, cash or other property of which the holder would actually
have been entitled to as stockholder if the holder had converted the Class A
preferred shares prior to the expiration of such purchase, tender or exchange
offer and accepted such offer (subject to adjustments from and after the
consummation of such purchase, tender or exchange offer as nearly equivalent as
possible to the adjustments provided for in this "Antidilution" section). The
Corporation will not effect any such consolidation, merger or sale, unless prior
to the consummation thereof the successor corporation (if other than the
Corporation) resulting from consolidation or merger or the Corporation
purchasing such assets assumes by written instrument (in form and substance
satisfactory to holder) the obligation to deliver such holder of shares of
stock, securities or assets as, in accordance with the foregoing provisions,
holder many be entitled to acquire. Nothing herein contained with respect to the
conversion rights set forth in the Conversion or Antidilution clause shall
require or imply that a Class A preferred holder has waived, released or aided
any designations, powers, preferences, rights, qualifications, limitations and
restrictions applicable to the Class A preferred shares.
If the Corporation at any time (i) subdivides (by a stock split, stock
dividend or otherwise) one or more classes of its outstanding shares of common
stock into a greater number of shares, the Exchange Ratio in effect immediately
prior to such subdivision will be proportionately adjusted, and (ii) if the
Corporation at any time combines (by reverse stock split or otherwise) one or
more classes of its outstanding shares of common stock into a smaller number of
shares, the Exchange Ratio in effect immediately prior to such combination will
be proportionately adjusted.
In case the Corporation at any time while any Class A preferred shares are
outstanding shall dissolve, liquidate or wind up its affairs other than in
connection with an Organic Change, holder shall have the right, but not the
libation, to exercise the conversion rights contained herein for a period of 60
days after the later of (i) such event having occurred, and (ii) receipt by
holder of a notice from the Corporation indicating the kind and amount of
securities or assets issuable or distributable to holders of shares of common
stock with respect to such event, and upon exercise of the conversion rights set
forth herein during such period, receive in lieu of the Conversion Stock the
same kind and amount of any securities or assets as may be issuable,
distributable or payable upon any such dissolution, liquidation or winding up of
with respect to each of the shares of the Corporation's common stock. For
purposes of this section, an Organic Change will not be deemed to be a
dissolution, liquidation or winding up of the Corporation.
PART 6. INTERPRETATION OF THIS INSTRUMENT.
6.01 Definitions. Each term defined in this Section 6 has the meaning
indicated in this instrument whenever such term is used in this instrument.(a)
Junior Securities. The term "Junior Securities" shall mean any equity security
of any kind which the Corporation or any subsidiary shall at any time issue or
be authorized to issue other than Cumulative Preferred Stock. (b) Common
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Stock and Existing Common Stock. The term "Common Stock" or Common Shares
designates and includes the Corporation's existing common stock of all classes
and any capital stock of any class of the Corporation authorized after the date
of the Agreement which shall not be limited to a fixed sum or a percentage of
part value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon the voluntary or involuntary
liquidation or winding up of the Corporation. The term "Existing Common Stock"
designates the Corporation-authorized Common Stock, par value ($0.01) per share,
of all classes, as constituted on the Closing Date as set forth in the
Agreement.
THIRD: That the said resolutions of the board of directors and creation and
authorization of issuance thereby of said series of cumulative preferred stock
and determination thereby of the dividend rate, redemption price, dividend
payment dates, sinking fund provisions, and provisions in respect to conversion
or exchange of said stock, if any, were duly made by the board of directors
pursuant to authority as aforesaid and in accordance with Section 151 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said QRS Music, Inc. has caused this certificate to be
executed by its officers thereto duly authorized this 22nd day of July 1996.
QRS MUSIC, INC.
--------------------------
Charles E. Campbell
President
--------------------------
Louis H. Elwell, III
Secretary
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