<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------
ENTERPRISE SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 68-0158367
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
38705 Seven Mile Road, Suite 435, Livonia, Michigan 48152, (248) 380-6070
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ENTERPRISE SOFTWARE, INC.
1998 Employee Stock Option Plan
(Full title of the plan)
Andre A. Blay
Chief Executive Officer and Chairman of the Board
Enterprise Software, Inc.
38705 Seven Mile Road, Suite 435
Livonia, Michigan 48152
(248) 380-6070
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------
Copy to:
David D. Joswick, Esq.
Miller, Canfield, Paddock and Stone, P.L.C.
150 West Jefferson, Suite 2500
Detroit, Michigan 48226
(313) 963-6420
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED OFFERING PRICE PER SHARE(1) AGGREGATE OFFERING REGISTRATION FEE
PRICE(1)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 540,000 shares $6.3125 $3,408,750 $947.62
$.001 par value
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(h)(1) under the Securities Act, the offering
price is based upon the average high and low sales prices of the Common Stock as
reported on the National Association of Securities Dealers National Market
System on February 1, 1999.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Enterprise Software, Inc.
("Registrant") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), hereby are incorporated in this Registration Statement by
reference: (a) Registrant's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 1998, filed with the Commission on June 30, 1998, as amended by
Forms 10-KSB/A, filed on August 13 and August 17, 1998; (b) Registrant's
Quarterly Report on Form 10-QSB for the quarter ended June 30, 1998, filed with
the Commission August 12, 1998; (c) Registrant's Quarterly Report on Form 10-QSB
for the quarter ended September 30, 1998, filed with the Commission November 16,
1998, as amended by Form 10-QSB, filed on December 29, 1998; (d) Registrant's
Current Report on Form 8-K, filed with the Commission August 11, 1998; (e)
Registrant's Current Report on Form 8-K, filed with the Commission September 16,
1998, as amended by Form 8-K/A, filed on November 16, 1998; (f) Registrant's
Current Report on Form 8-K, filed with the Commission January 4, 1999; (g)
Registrant's Current Report on Form 8-K, filed with the Commission January 21,
1999; (h) Registrant's Current Report on Form 8-K, filed with the Commission
January 21, 1999; and (i) the description of Registrant's common stock, $0.01
par value, included in Registrant's Exchange Act Registration Statement on Form
8-A filed with the Commission October 12, 1989, including any amendment or
reports subsequently filed by the Registrant for the purpose of updating that
description. All documents subsequently filed by Registrant pursuant to Sections
13(a), 14, or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law ("DGCL") provides that a Delaware
corporation, such as the Registrant, may indemnify a director or officer against
his or her expenses and judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with any action, suit or proceeding (other
than an action by or in the right of the corporation) involving such person by
reason of the fact that such person is or was a director or
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officer, concerning actions taken in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the corporation and,
with respect to any criminal action or proceeding, if such director or officer
had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also provides that in a derivative action, a Delaware
corporation may indemnify its directors and officers against expenses actually
and reasonably incurred to the extent that such director or officer acted in
good faith and in a manner such director or officer reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification may be made with respect to any claim, issue or matter as to
which such director or officer is adjudged to be liable to the corporation
unless and only to the extent that the court determines upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such director or officer is fairly and reasonably entitled to
indemnity for such expenses which the court deems proper.
In either of the two preceding cases, if the director or officer is
successful on the merits or otherwise in defense of the action, suit or
proceeding, or in defense of a claim, issue or matter therein, the DGCL requires
a Delaware corporation to indemnify the director or officer against expenses
actually and reasonably incurred by him or her in connection therewith.
The DGCL also generally permits the advancement of a director's or
officer's expenses.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
may not eliminate or limit the liability of a director (i) for any breach of the
director's 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 DGCL (which relates to
liability for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) or (iv) for any transaction from which the director derived an
improper personal benefit.
Article X of Registrant's Certificate of Incorporation, as amended,
implements the foregoing provisions and provides as follows:
ARTICLE X
INDEMNIFICATION/LIMITATION OF LIABILITY
1. The corporation shall indemnify its directors, officers,
employees, fiduciaries, and agents to the full extent permitted by the
Delaware General Corporation Law as it may be amended from time to
time.
2. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, and any procedure provided for
by any of the foregoing, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
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<PAGE> 4
continue as to a person who has ceased to be a director, officer,
employee, fiduciary or agent and shall inure to the benefit of heirs,
executors, and administrators of such a person.
3. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee,
fiduciary or agent of the corporation or who is or was serving at the
request of the corporation as a director, officer, employee, fiduciary
or agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under provisions of this Article.
4. To the maximum extent permitted by Section 102(b)(7) of the
General Corporation Law of Delaware, a director of this 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 director's 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 an improper personal benefit.
In addition, Article Six of Registrant's Bylaws implements the
foregoing provisions and provides as follows:
ARTICLE VI
Indemnification of Certain Persons
Section 1. Indemnification Against Third Party Claims. Any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he
is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by the
corporation against expenses (including attorneys, fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted
in good faith and, in the case of conduct in his official capacity, in
a manner he reasonably believed to be in the best interests of the
corporation or, in all other cases, in a manner that was at least not
opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
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<PAGE> 5
Section 2. Indemnification Against Derivative Claims. Any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, OFFICER, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be
indemnified by the corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith
and, in the case of conduct in his official capacity, in a manner he
reasonably believed to be in the best interests of the corporation or,
in all other cases, in a manner that was at least not opposed to the
corporation's best interests; but no indemnification shall be made in
connection with a proceeding in which such person has been adjudged to
be liable to the corporation.
Section 3. Indemnification Against Claims Involving - Improper
Personal Benefit. Notwithstanding the provisions of Sections 1 and 2 of
this Article VI, no indemnification shall be made to any director in
connection with any proceeding charging improper personal benefit to
the director, whether or not involving action in his official capacity,
in which he was adjudged liable on the basis that he or she derived an
improper personal benefit.
Section 4. Rights to Indemnification. To the extent that a
director, officer, employee or agent of the corporation has been
successful on the merits in defense of any action, suit or proceeding
referred to in Section 1, 2 or 3 of this Article VI or in defense of
any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith without the necessity of any action
being taken by the corporation other than the determination in good
faith that such defense has been successful. In all other cases, any
indemnification under Section 1, 2 or 3 of this Article VI (unless
ordered by a Court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in this
Article VI. Such determination shall be made by (a) the board of
directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (b) if a quorum
cannot be obtained, by a majority vote of a committee of the board
designated by the board, which committee shall consist of two or more
directors not parties to the proceeding, except that directors who are
parties to the proceeding may participate in the designation of
directors for the committee, or (c) if the quorum cannot be obtained or
the committee cannot be established under Subsection (b) of this
Section 4 or, even if a quorum is obtained or a committee designated,
if a majority of the directors constituting such quorum or committee so
directs, the determination required to be made by this Section 4 shall
be made by (i) independent legal counsel selected by a vote of the
board of directors or the committee in the manner specified in i
Subsection (b) or (c) of this Section 4 or, if a quorum of the full
board cannot be obtained and a
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<PAGE> 6
committee cannot be established, by independent legal counsel selected
by a majority of the full board or (ii) by the shareholders.
Section 5. Indemnification by Court Order. A director,
officer, employee or agent who is or was a party to a proceeding may
apply for indemnification to the court conducting the proceeding or to
another court of competent jurisdiction. On receipt of an application,
the court, after giving any notice the court considers necessary, may
order indemnification in the following manner: (a) if it determines the
person is entitled to mandatory indemnification under Section 4 of this
Article VI, the court shall order indemnification, in which case the
court shall also order the corporation to pay the person's reasonable
expenses incurred to obtain court-ordered indemnification; or (b) if it
determines that the person is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or
not he met the standard of conduct set forth in Section 1 or 2 of this
Article VI or was adjudged liable on the circumstances described in
Section 2 or 3 of this Article VI, the court may order such
indemnification as the court deems proper; except that the
indemnification with respect to any proceeding in which liability shall
have been adjudged in the circumstances described in Section 2 or 3 of
this Article VI is limited to reasonable expenses incurred in
connection with the proceeding and reasonable expenses incurred to
obtain court-ordered indemnification.
Section 6. Effect of Termination of Action. The termination of
any action, suit or proceeding by judgment, order, settlement or
conviction or upon a plea of nolo contendere or its equivalent shall
not of itself create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he
reasonably believed to be in the best interests of the corporation and,
with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful. Entry of a judgment by
consent as part of a settlement shall not be deemed a final
adjudication of liability, nor of any other issue or matter.
Section 7. Advance of Expenses. Expenses (including attorneys'
fees) incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized in Section
4 of this Article VI if: (a) the director, officer, employee or agent
furnishes the corporation a written affirmation of his good-faith
belief that he has met the standard of conduct described in Sections 1
and 2 of this Article VI, (b) the director, officer, employee or agent
furnishes the corporation a written undertaking, executed personally or
on his behalf, to repay the advance if it is determined that he did not
meet such standard of conduct and (c) a determination is made that the
facts then known to those making the determination would not preclude
indemnification under this Article VI.
Section 8. Other Indemnification Rights. The indemnification
provided hereby shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any bylaw, agreement,
vote of shareholders or
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disinterested directors, or otherwise, and any procedure provided for
by any of the foregoing, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of heirs, executors
and administrators of such a person. However, the indemnification
provisions provided hereby or otherwise concerning the corporation's
indemnification of or advance for expenses to directors (except for
insurance policies) shall be valid only if and to the extent the
provision is consistent with the provisions of Section 145 of the
Delaware General Corporation Law.
Section 9. Report to Shareholders. Any indemnification of or
advance of expenses to a director in accordance with this Article VI,
if arising out of a proceeding by or on behalf of the corporation,
shall be reported in writing to the shareholders with or before the
notice of the next shareholders' meeting. If the next shareholder
action is taken without a meeting at the instigation of the board of
directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such
action.
The Registrant also has entered into indemnification agreements with
each of its directors and executive officers. All of those agreements contain
identical substantive terms and generally require the Registrant to indemnify
and advance expenses to the director or executive officer party thereto whenever
such indemnification or advancement is permitted under the DGCL.
Pursuant to the Enterprise Software, Inc. 1998 Employee Stock Option
Plan, no member of the Registrant's Compensation Committee, which administers
the Plan, is liable for any action or determination made by him in good faith.
Also pursuant to such Plan, the Company is required to indemnify and hold
harmless each member of that Committee from and against any cost, liability or
expense imposed or incurred in connection with that person's or the Committee's
taking or failing to take any action under the Plan.
The Registrant maintains insurance on a regular basis (and not
specifically in connection with this offering) against liabilities arising on
the part of directors and officers out of their performance in such capacities
or arising on the part of the Registrant out of the foregoing indemnification
provisions, subject to certain exclusions and to the policy limits.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
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<PAGE> 8
ITEM 8. EXHIBITS.
The following exhibits are furnished with this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
(4)(a) Registrant's Certificate of Incorporation (Incorporated by reference to Exhibit 3.1 of
the Registration Statement on Form S-3 (File No. 333-1205))
(4)(b) Amendment to Registrant's Certificate of Incorporation
(4)(c) Certificate of Designation of Series A Preferred Stock (Incorporated by reference to
Exhibit 4.1 of Registration Statement on Form S-3 (File No. 333-1205))
(4)(d) Certificate of Designation of Series C Preferred Stock (Incorporated by
reference to Appendix A of Proxy Statement (File No. 333-1205))
(4)(e) Registrant's Bylaws (Incorporated by reference to Exhibit No. 3.2 of Registration
Statement on Form S-3 (File No. 333-1205))
(5) Miller, Canfield, Paddock and Stone, P.L.C. opinion and consent
(23)(a) Consent of KPMG LLP
(23)(b) Consent of BDO Seidman, LLP
(23)(c) Consent of Miller, Canfield, Paddock and Stone, P.L.C. (included in exhibit (5))
(24) Powers of attorney (contained in the signature pages hereto)
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference into
the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Livonia, Michigan, on January 27, 1999.
ENTERPRISE SOFTWARE, INC.
By /s/ Andre A. Blay
--------------------------------
Andre A. Blay
Chief Executive Officer
and Chairman of the Board
S-1
<PAGE> 11
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on the dates indicated below. By so signing, each of
the undersigned, in his capacity as a director or officer, or both, as the case
may be, of the Registrant, does hereby appoint each of Andre A. Blay and H.
Bradley Eden, or either of them severally, his true and lawful attorney to
execute in his name, place and stead, in his capacity as a director or officer,
or both, as the case may be, of the registrant, any and all amendments to this
Registration Statement including post-effective amendments thereto and all
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission. Each of said attorneys shall
have full power and authority to do and perform in the name and on behalf of
each of the undersigned, in any and all capacities, every act whatsoever
requisite or necessary to be done in the premises as fully, and for all intents
and purposes, as each of the undersigned might or could do in person, the
undersigned hereby ratifying and approving the acts of said attorneys and each
of them.
<TABLE>
<S> <C> <C>
/s/ Andre A. Blay Chief Executive Officer and January 27, 1999
- ---------------------------------- Chairman of the Board
Andre A. Blay of Directors
/s/ David Martin Chief Financial Officer (principal January 27, 1999
- ---------------------------------- financial officer and principal
David Martin accounting officer)
/s/ Thomas H. Baur Director January 27, 1999
- ----------------------------------
Thomas H. Baur
/s/ H. Bradley Eden Director January 27, 1999
- ----------------------------------
H. Bradley Eden
/s/ Robert Beauregard Director January 27, 1999
- ----------------------------------
Robert Beauregard
/s/ Richard L. Schleufer Director January 27, 1999
- ----------------------------------
Richard L. Schleufer
/s/ Joseph J. Porfeli Director January 27, 1999
- ----------------------------------
Joseph J. Porfeli
</TABLE>
S-2
<PAGE> 12
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
(4)(a) Registrant's Certificate of Incorporation (Incorporated by reference to Exhibit 3.1 of
the Registration Statement on Form S-3 (File No. 333-1205))
(4)(b) Amendment to Registrant's Certificate of Incorporation
(4)(c) Certificate of Designation of Series A Preferred Stock (Incorporated by reference to
Exhibit 4.1 of Registration Statement on Form S-3 (File No. 333-1205))
(4)(d) Certificate of Designation of Series B Preferred Stock
(4)(e) Certificate of Designation of Series C Preferred Stock (Incorporated by
reference to Appendix A of Proxy Statement (File No. 333-1205))
(4)(f) Registrant's Bylaws (Incorporated by reference to Exhibit No. 3.2 of Registration
Statement on Form S-3 (File No. 333-1205))
(5) Miller, Canfield, Paddock and Stone, P.L.C. opinion and consent
(23)(a) Consent of KPMG LLP
(23)(b) Consent of BDO Seidman, LLP
(23)(c) Consent of Miller, Canfield, Paddock and Stone, P.L.C. (included in exhibit
(5))
(24) Powers of attorney (contained in the signature pages hereto)
</TABLE>
E-1
<PAGE> 1
EXHIBIT 4(b)
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE
Or AMENDMENT OF "INDENET, INC.", CHANGING ITS NAME FROM "INDENET, INC." TO
"ENTERPRISE SOFTWARE, INC.", FILED IN THIS OFFICE ON THE THIRTEENTH DAY OF
JULY, A.D. 1998, AT 11:30 O'CLOCK A.M.
[SEAL] Edward J. Freel
------------------------------------
EDWARD J. FREEL, SECRETARY OF STATE
AUTHENTICATION: 9270714
DATE: 08-25-98
<PAGE> 2
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 07/13/1998
981270488 - 2524991
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
INDENET, INC.
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
IndeNet, Inc. (the "Corporation"), a corporation organized and existing by
virtue of the General Corporation Law of the State of Delaware, as amended (the
"Delaware GCL"), by its duly authorized officers, hereby certifies as follows:
FIRST: That the Board of Directors of the Corporation, acting pursuant to
Section 141(f) of the Delaware GCL, has duly adopted a resolution authorizing
the Corporation to reclassify, change and convert each four (4) outstanding
shares of the Corporation's Common Stock, par value $.001 per share, into one
(1) share of Common Stock, par value $.001 per share.
SECOND: That the Board of Directors of the Corporation, acting pursuant to
Section 141(f) of the Delaware GCL, has duly adopted a resolution authorizing
the Corporation to change the name of the Corporation to "Enterprise Software,
Inc."
THIRD: That, pursuant to authorization by the affirmative vote, in accordance
with the provisions of the Delaware GCL, of the holders of a majority of the
outstanding Common Stock of the Corporation entitled to vote thereon at a
special meeting of stockholders of the Corporation held on July 2, 1998, the
Certificate of Incorporation of the Corporation be amended as follows:
1. By striking out the title and Article I and inserting a new title
and new Article I to read as follows: "Certificate of Incorporation of
Enterprise Software, Inc." and Article I to read: "The name of the Corporation
shall be Enterprise Software, Inc."
3. By adding a new paragraph to Article IV to read as follows:
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<PAGE> 3
"(d) Each four shares of the Common Stock, par value $.001 per share,
of the Corporation issued and outstanding or held in treasury as of
12:00 a.m. New York time on July 15, 1998 (the "Effective Time") shall
be reclassified as and changed into one (1) share of Common Stock, par
value $.001 per share, of the Corporation, without any action by the
holders thereof. Each stockholder who, immediately prior to the
Effective Time, owns a number of shares of Common Stock which is not
evenly divisible by four shall, with respect to such fractional
interest, be entitled to receive from the Corporation cash in an amount
equal to such fractional interest multiplied by the average of the
closing bid and closing asked prices of the Common Stock as reported on
the Nasdaq Bulletin Board at the Effective Time."
FOURTH: That the amendments to the Corporation's Certificate of Incorporation
set forth herein have been duly adopted in accordance with the provisions of
Section 242 of the Delaware GCL.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed on its behalf by Andre A. Blay, its Chief Executive Officer, on July 2,
1998, hereby declaring and certifying that this is the act and deed of the
Corporation and that the facts herein stated are true.
Andre A. Blay
-------------------------------
Name: Andre A. Blay
Title: Chief Executive Officer
ATTEST:
Robert A. Blay
- -------------------------
Name: Robert A. Blay
Title: Assistant Secretary
2
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EXHIBIT 4(d)
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE PAGE 1
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "INDENET, INC.", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY OF
AUGUST, A.D. 1995, AT 9 O'CLOCK A.M.
Edward Freel
[SEAL] --------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9270710
DATE: 08-25-98
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 08/31/1995
950198676 - 2524991
AMENDED CERTIFICATE OF DESIGNATION,
RIGHTS AND PREFERENCES
OF THE
SERIES B PREFERRED STOCK
OF INDENET, INC.
------------------------------------------
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
------------------------------------------
INDENET, INC. (the "Corporation"), a company organized and existing
under and by virtue of the provisions of the General Corporation Law of the
State of Delaware (the "DGCL"), certifies that pursuant to the authority
contained in Article IV of its Certificate of Incorporation, and in accordance
with the provisions of Section 151 of the DGCL, its Board of Directors has
adopted the following resolution creating a series of its Preferred Stock
designated as the Series B Preferred Stock:
"RESOLVED, that a separate series of the class of authorized Preferred
Stock of the Corporation be hereby created, and that the designation and the
amount thereof and the voting powers, preferences and relative, participating,
optional and other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as follows:
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DESIGNATION
of
SERIES B PREFERRED STOCK
1. Designation and Amount. The shares of one series of Preferred
Stock of the Corporation created and authorized hereby shall be designated as
"Series B Preferred Stock" (hereinafter referred to as the "Series B Preferred
Stock") and the number of shares constituting such series shall be 250,000., par
value $.0001 per share.
2. Dividends.
(a) Each holder of record of a share of Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds of the Corporation legally available therefor pursuant
to the DGCL (the "Legally Available Funds"), mandatory preferential cumulative
dividends during each Monthly Dividend Period (as hereinafter defined) that such
share of Series B Preferred Stock is outstanding at a rate determined by
multiplying 1% times the Liquidation Preference (as hereinafter defined) of
such Series B Preferred Stock. Such dividends shall be payable on the first
Business Day (as hereinafter defined) succeeding the last day of the preceding
Monthly Dividend Period (each, a "Dividend Payment Date"), commencing July 1,
1995. Such dividends shall be fully cumulative and shall accrue on a monthly
basis (whether or not declared) from the first day of each Monthly Dividend
Period as to which such dividend may be payable as herein provided to the date
on which such Series B Preferred Stock ceases to be outstanding.
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(b) Dividends accrued on the Series B Preferred Stock shall be
paid in cash on each Dividend Payment Date, subject to the availability of
Legally Available Funds. If at any time the Corporation distributes less than
the total amount of dividends then accrued with respect to the Series B
Preferred Stock, such payment will be distributed among the holders of Series B
Preferred Stock so that an equal amount will be paid (as nearly as possible)
with respect to each outstanding share of Series B Preferred Stock. If for any
reason or no reason for any Monthly Dividend Period all or a portion of the
dividends are not paid in cash on or before the Dividend Payment Date next
succeeding the Dividend Payment Date on which such dividends were payable, then
the rate at which dividends shall be computed shall immediately be increased to
1.5% per month until all accrued but unpaid dividends have been paid in full and
such accrued but unpaid dividends shall be added (solely for the purpose of
calculating dividends payable on the Series B Preferred Stock) to the
Liquidation Preference of the Series B Preferred Stock effective at the
beginning of the Monthly Dividend Period succeeding the Monthly Dividend Period
as to which such dividends were not paid and shall thereafter accrue additional
dividends in respect thereof ("Additional Dividends") at the rate of 1.5% per
month until such unpaid dividends have been paid in full. At such time as all
accrued but unpaid dividends have been paid in full at the adjusted rate the
dividend rate for future dividends shall return to the initial rate of 1% per
month, unless and until the occurrence of a subsequent failure to make in full a
monthly dividend payment, at which time the rate of dividends shall immediately
be increased in accordance with the preceding sentence.
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(c) Each such dividend shall be paid to the holders of record of
shares of Series B Preferred Stock as they appear on the stock register of the
Corporation on such record date as shall be fixed by the Board of Directors of
the Corporation or a duly authorized committee thereof, which date shall be not
more than 30 days nor less than 10 days preceding the Dividend Payment Date
relating thereto.
(d) If dividends are not paid in full or declared in full and sums are
not set apart for the payment thereof upon the Series B Preferred Stock and any
other preferred stock ranking on a parity as to dividends with the Series B
Preferred Stock, all dividends declared upon shares of Series B Preferred Stock
and any other preferred stock ranking on a parity as to dividends shall be
declared pro rata so that in all cases the amount of dividends declared per
share on the Series B Preferred Stock and such other preferred stock shall bear
to each other the same ratio that accumulated dividends per share, including
Additional Dividends or accrued dividends, as the case may be, on the shares of
Series B Preferred Stock and such other preferred stock shall bear to each
other. Except as provided in the preceding sentence, unless full cumulative
dividends on the Series B Preferred Stock have been paid or declared in full and
set aside for payment, no dividends or other distribution shall be declared or
paid upon the Common Stock of the Corporation or any such other capital stock of
the Corporation ranking junior to or on parity with the Series B Preferred Stock
as to distribution or liquidation rights nor shall shares of any such capital
stock be redeemed or purchased by the Corporation or any subsidiary thereof, nor
shall any money be paid to or made available for a sinking fund for redemption
or purchase of any shares
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of capital stock ranking junior to or on a parity with the Series B Preferred
Stock as to distribution or liquidation rights until all cumulative dividends on
the Series B Preferred Stock shall have been paid and the dividend for the then
current Monthly Dividend Period shall have been paid or declared and sufficient
funds set aside for payment thereof.
(e) Notwithstanding anything to the contrary contained herein, upon
any conversion pursuant to either Section 3 or Section 4 hereof of the Series B
Preferred Stock, all accrued and unpaid dividends on the Series B Preferred
Stock to and until the date of such conversion shall be due and payable.
(f) The following terms shall have the meanings as set forth below:
"Business Day" means any day other than a Saturday, Sunday or any day
on which the New York Stock Exchange is closed.
"Monthly Dividend Period" means the period from the first day through
the last day of each calendar month, provided that the first Monthly Dividend
Period shall mean the period commencing the day shares of Series B Preferred
Stock are originally issued and ending on July 31, 1995.
3. Conversion At Option of Corporation.
(a) General. Provided that the conditions set forth in Section 3(b)
shall be satisfied, at the option of the Corporation, upon giving the notice
provided in Section 3(d) below, as of the Effective Date (as hereinafter
defined) the Series B Preferred Stock shall be converted in whole or in part
into fully paid and non-
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assessable shares of Common Stock. The number of shares of Common Stock to which
a holder of Series B Preferred Stock shall be entitled to receive upon
conversion shall be the product obtained by multiplying (i) the Applicable
Conversion Rate (determined as provided in Section 3(c)) times (ii) the number
of shares of Series B Preferred held by such holder which are being converted.
(b) Conditions. No shares of Series B Preferred Stock shall be
converted into Common Stock pursuant to Section 3(a) unless each of the
following conditions shall be satisfied as of the Effective Date:
(i) Immediately prior to authorizing any conversion pursuant to this
Section 3 of the Corporation, by resolution of its Board of Directors shall, to
the extent of any Legally Available Funds, declare a dividend on the Series B
Preferred Stock payable on the Effective Date in an amount equal to any accrued
and unpaid dividends (including Additional Dividends) on the Series B Preferred
Stock as of the Effective Date.
(ii) The issuance to the holders of Series B Preferred Stock of all
shares of Common Stock upon conversion of the Series B Preferred Stock pursuant
to Section 3(a) shall have been registered or the resale of such common stock
shall have been registered under a currently effective registration statement
under the Securities Act of 1933, as amended, and either registered under all
applicable securities or blue sky laws of any state in which a holder resides or
such issuance shall be exempt from the registration provisions of such
applicable state securities laws.
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(iii) The Common Stock shall be (a) listed for trading on either the
American Stock Exchange or (b) the New York Stock Exchange, or (c) quoted on
NASDAQ (the "Market Price") and on the date of the notice of the conversion, the
stock shall have traded at or above $5.00 per share.
(c) Applicable Conversion Rate. The conversion rate in effect at any
time for the conversion of the Series B Preferred Stock pursuant to this Section
3 (the "Applicable Conversion Rate") shall be one share of common stock for each
share of Series B Preferred Stock converted.
(d) Notice of Conversion. At least 30 days but not more than 60 days
prior to the date fixed for the conversion of shares of the Series B Preferred
Stock pursuant to Section 3(a), written notice of such conversion shall be
mailed to each holder of record of shares of Series B Preferred Stock to be
converted in a postage prepaid envelope addressed to such holder at such
holder's post office address as shown on the records of the Corporation. Each
such notice shall state: (i) the effective date of such conversion (the
"Effective Date"); (ii) the number of shares of Series B Preferred Stock to be
converted and, if less than all shares held by such holder are to be converted,
the method of calculating such number; (iii) the Applicable Conversion Rate;
(iv) the place or places where certificates for such shares are to be
surrendered in exchange for a certificate or certificates representing the
Common Stock into which the shares of Series B Preferred Stock are to be
converted (the "Conversion Shares"); and (v) that dividends on the shares to be
converted shall cease to accrue on the Effective Date of the conversion. On or
after the Effective Date each
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holder of shares of Series B Preferred Stock to be converted shall present and
surrender such holder's certificate or certificates for such shares of Series B
Preferred Stock to the Corporation at the place designated in such notice. As
promptly as practicable after the Effective Date, the Corporation shall issue
and deliver to the holder of the shares of Series B Preferred Stock being
converted, or on its written order, such certificate(s) as it may request for
the number of whole shares of Common Stock issuable upon conversion of such
shares of Series B Preferred Stock in accordance with the provisions of this
Section 3 and cash as provided in Section 3(f), in respect of any fraction of a
share of Common Stock issuable upon such conversion. Such conversion shall be
deemed to have been effected immediately prior to the close of business on the
Effective Date, and at such time the rights of the holder as holder of the
converted shares of Series B Preferred Stock shall cease and the person(s) in
whose name(s) any certificate(s) 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 of Common Stock represented thereby. In the event some but
not all of the shares of Series B Preferred Stock represented by a certificate
or certificates being surrendered by a holder are converted, the Corporation
shall execute and deliver to or on the order of the holder, at the expense of
the Corporation, a new certificate representing the number of shares of Series B
Preferred Stock which are not converted. From and after the Effective Date, all
dividends on the shares of Series B Preferred Stock designated for conversion in
such notice shall cease to accrue and all rights of the holders thereof, except
the right to receive a
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certificate or certificates for Conversion Shares and the right to receive the
accrued and unpaid dividends up to the Effective Date and any cash in payment of
fractional shares, without interest, upon the surrender of certificates
representing the Series B Preferred Stock, shall cease and terminate and such
shares shall not be deemed to be outstanding for any purpose whatsoever. A
notice hereunder shall be deemed to be given on the date it is deposited in
first class United States mail in a sealed envelope, postage prepaid.
(e) Selection of Shares to be Converted. If less than all of the
shares of Series B Preferred Stock are to be converted, the Board of Directors
of the Corporation shall allocate the aggregate Liquidation Preference of shares
to be converted pro rata (or as nearly pro rata as practicable) or by lot at
the direction of the Board of Directors of the Corporation. Regardless of the
method used, the calculation of the number of shares to be converted shall be
based upon whole shares, such that the Corporation shall in no event be required
to issue fractional shares of Series B Preferred Stock or cash in lieu thereof.
(f) Cash in Lieu of Fractional Shares. No fractional shares of Common
Stock or scrip representing fractional shares shall be issued upon the
conversion of shares of Series B Preferred Stock pursuant to this Section 3.
Instead of any fractional shares of Common Stock which would otherwise be
issuable upon conversion of Series B Preferred Stock, the Corporation shall pay
to the holder of the shares of Series B Preferred Stock which were converted a
cash adjustment in respect of such fractional shares in an amount equal to the
same fraction of the Market Price per share
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of the Common Stock at the close of business on the Effective Date. The
determination as to whether or not any fractional shares are issuable shall be
based upon the aggregate number of shares of Series B Preferred Stock being
converted at any one time by any holder thereof, not upon each share of Series B
Preferred Stock being converted.
4. Conversion At the Option of Holder.
(a) General. Subject to and in compliance with the provisions of this
Section 4, at any time after July 1, 1997, the shares of the Series B Preferred
Stock may at the option of the holder be converted at any time and from time to
time into fully paid and nonassessable shares of Common Stock. The number of
shares of Common Stock to which a holder of Series B Preferred Stock shall be
entitled to receive upon conversion pursuant to this Section 4 shall be the
product obtained by multiplying (i) the Applicable Conversion Rate (determined
as provided in Section 4(c)) by the number of shares of Series B Preferred Stock
being converted at any time.
(b) Notwithstanding Section 4(a) above (more particularly the July 1,
1997 date), should the Corporation be in default at any time in the payment of
dividends or Additional Dividends and the holder has given notice of default and
the Corporation remains in default for thirty (30) days after notice, then the
holder may immediately, at its option, convert all or any part of its Series B
Preferred Stock to common stock in accordance with Section 4(a) hereinabove.
(c) Applicable Conversion Rate. The conversion rate in effect at any
time for the conversion of the Series B Preferred Stock pursuant to this Section
4 (the
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"Applicable Conversion Rate") shall be the quotient obtained by dividing (i) the
Liquidation Preference of the Series B Preferred Stock plus any accrued but
unpaid dividends and Additional Dividends by (ii) the Applicable Conversion
Value (as defined in the next sentence). The "Applicable Conversion Value" in
the case of conversions pursuant to this Section 4 means the average of the
Market Prices of the Common Stock for the period of the 20 consecutive Business
Days on which the Common Stock was traded ending on the Business Day immediately
preceding (but not including) the date the notice referred to in Section 4(d) is
deemed given or $3. per common share, whichever is less.
(d) Exercise of Conversion Privilege in Accordance with Section 4(a)
Absent a Default by the Corporation.
To exercise its conversion privilege, a holder of Series B
Preferred Stock shall surrender the certificate(s) representing the shares being
converted to the Corporation at its principal office, and shall give written
notice to the Corporation at that office that such holder elects to convert such
shares. Such notice shall also state the name or names (with address or
addresses) in which the certificate(s) for shares of Common Stock issuable upon
such conversion shall be issued. The certificate(s) for shares of Series B
Preferred Stock surrendered for conversion shall be accompanied by proper
assignment thereof to the Corporation or in blank. A notice hereunder shall be
deemed to be given on the date it is deposited in first class United States mail
in a sealed envelope, postage prepaid. The date when such written notice is
received by the Corporation, together with the certificate(s) representing the
shares of Series B Preferred Stock being converted, shall be the "Conversion
Date". Any
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voluntary conversion of Series B Preferred Stock by any holder shall be for at
least 100 shares of Common Stock. As promptly as practicable after the
Conversion Date, the Corporation shall issue and shall deliver to the holder of
the shares of Series B Preferred Stock being converted, or on its written order,
such certificate(s) as it may request for the number of whole shares of Common
Stock issuable upon the conversion of such shares of Series B Preferred Stock in
accordance with the provisions of this Section 4, and cash, as provided in
Section 4(e), in respect of any fraction of a share of Common Stock issuable
upon such conversion.
(e) Cash in Lieu of Fractional Shares. No fractional shares of Common
Stock or scrip representing fractional shares shall be issued upon the
conversion of shares of Series B Preferred Stock pursuant to this Section 4.
Instead of any fractional shares of Common Stock which would otherwise be
issuable upon conversion of Series B Preferred Stock, the Corporation shall pay
to the holder of the shares of Series B Preferred Stock which were converted a
cash adjustment in respect of such fractional shares in an amount equal to the
same fraction of the Market Price per share of the Common Stock at the close of
business on the Conversion Date. The determination as to whether or not any
fractional shares are issuable shall be based upon the aggregate number of
shares of Series B Preferred Stock being converted at any one time by any holder
thereof, not upon each share of Series B Preferred Stock being converted.
(f) Partial Conversion. In the event some but not all of the shares of
Series B Preferred Stock represented by a certificate or certificates
surrendered by a
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holder are converted, the Corporation shall execute and deliver to or on the
order of the holder, at the expense of the Corporation, a new certificate
representing the number of shares of Series B Preferred Stock which were not
converted.
(g) Reservation of Common Stock. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of effecting the conversion of the shares of the
Series B Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of the Series B Preferred Stock, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the Series B Preferred Stock,
the Corporation shall take such action as may be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purpose.
(h) Option to Purchase Common Stock in Satisfaction of Accrued But
Unpaid Dividends
In the event the holder exercises its option in accordance with
Section 4(b) to purchase common stock, the purchase price shall be paid by the
holder's agreement to the cancellation of an amount of accrued but unpaid
dividends on the Series B Preferred Stock equal to the aggregate purchase price
of the shares of Common Stock purchased. Notwithstanding anything to the
contrary contained herein, no holder may exercise any option hereunder to the
extent that the purchase price for shares of Common Stock to be purchased
pursuant thereto exceeds the amount of Legally Available Funds for the payment
of dividends.
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(i) Exercise of Option. To exercise its option under Section 4(b), a
holder of Series B Preferred Stock shall give written notice to the Corporation
at the principal office of the Corporation that such holder elects to exercise
its option. A notice under Section 4(b) shall be deemed to be given on the date
it is deposited in first class United States mail in a sealed envelope, postage
prepaid.
(j) Reservation of Common Stock. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of issuing shares of the Series B Preferred Stock
upon exercise of options pursuant to Section 5(h), such number of its shares of
Common Stock as shall from time to time be sufficient to issue the maximum
number of shares of Common Stock issuable upon exercise of such options, and if
at any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to issue the maximum number of shares of Common Stock issuable
upon exercise of such options, the Corporation shall take such action as may be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purpose.
5. Voting Rights.
(a) The holders of Series B Preferred Stock shall not, except as
required by law or as otherwise set forth herein, have any right or power to
vote on any question in any proceeding or to be represented at, or to receive
notice of, any meeting of the Corporation's stockholders. On any matters on
which the holders of the Series B Preferred Stock shall be so entitled to vote,
they shall be entitled to one
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vote for each share held.
(b) So long as any shares of the Series B Preferred Stock are
outstanding and unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of a majority
of all of the outstanding shares of Series B Preferred Stock (given in person or
by proxy, at a special meeting of stockholders called for such purpose or at any
annual meeting of stockholders, with the holders of Series B Preferred Stock
voting as a class and with each share of Series B Preferred Stock having one
vote) shall be necessary for (i) authorizing, effecting or validating the
amendment, alteration or repeal of any of the provisions of this Certificate of
Designation or of any amendment thereto, or of any resolution or resolutions
providing for the issue of any stock, that would have an adverse effect on the
designations, rights, preferences or privileges of shares of Series B Preferred
Stock or (ii) the creation of any class or series of capital stock ranking prior
to the Series B Preferred Stock with respect to rights to receive dividends,
redemption payments or distributions upon liquidation or winding up of the
Corporation.
(c) Nothing herein contained shall be construed so as to require a
class vote or the consent of the holders of the outstanding shares of Series B
Preferred Stock (i) in connection with any increase in the total number of
authorized or issued shares of Common Stock, or (ii) in connection with the
authorization or increase or issuance of any class or series of capital stock
ranking on parity with or junior to the Series B Preferred Stock as to
dividends, redemption payments and distributions upon
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liquidation, dissolution or winding up of the Corporation. Nothing herein
contained shall in any way limit the right and power of the Corporation to issue
any bonds, notes, mortgages, debentures, and other obligations, or to incur
indebtedness to banks and to other lenders.
6. Priority of Series B Preferred Stock in Event of Liquidation or
Dissolution.
In the event of any liquidation, dissolution, or winding up of the
affairs of the Corporation, whether voluntary or otherwise, after payment or
provision for payment of the debts and other liabilities of the Corporation, the
holders of the Series B Preferred Stock shall be entitled to receive, out of the
remaining net assets of the Corporation, the amount of Three Dollars ($3.00) in
cash for each share of Series B Preferred Stock (the "Liquidation
Preference"), plus an amount equal to all dividends accrued and unpaid on each
such share up to the date fixed for distribution, before any distribution of any
kind shall be made to the holders of the Common Stock of the Corporation or any
other stock ranking (as to any such distribution) junior to the Series B
Preferred Stock. In the event of any involuntary or voluntary liquidation,
dissolution or winding up the affairs of the Corporation, the Corporation by
resolution of its Board of Directors shall, to the extent of any Legally
Available Funds, declare a dividend on the Series B Preferred Stock payable on
the date of distribution before any distribution is made to any holder of any
series of preferred stock or common stock or any other stock of the Corporation
ranking junior to the Series B Preferred Stock as to liquidation, dissolution or
winding up, in an amount equal to any accrued and unpaid
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dividends on the Series B Preferred Stock as of such date. If the Corporation
does not have sufficient Legally Available Funds to declare and pay all
dividends accrued at the time of such liquidation, any remaining accrued and
unpaid dividends shall be added to the payment to be received by the holders of
the Series B Preferred Stock for such Series B Preferred Stock in such
liquidation. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets distributable among the holders of any series of
preferred stock ranking (as to any such distribution) on a parity with the
Series B Preferred Stock shall be insufficient to permit the payment in full to
the holders of all such series of preferred stock of all preferential amounts
payable to all such holders, then the entire assets of the Corporation thus
distributable shall be distributed ratably among the holders of the Series B
Preferred Stock and all series of the preferred stock ranking (as to any such
distribution) on a parity with the Series B Preferred Stock in proportion to the
respective amounts that would be payable per share if such assets were
sufficient to permit payment in full. Except as otherwise provided in this
Section 5, holders of Series B Preferred Stock shall not be entitled to any
distribution in the event of liquidation, dissolution or winding up of the
affairs of the Corporation.
For the purposes of this Section 6, neither the voluntary sale, lease,
conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all the property or assets of the
Corporation, nor the consolidation or merger of the Corporation with one or more
other corporations, shall be deemed to be a liquidation, dissolution or winding
up, voluntary or
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involuntary.
7. Ranking of Series B Preferred Stock. Except with respect to the
Series A Preferred Stock which shall be superior to this Series B and except as
permitted in accordance with Section 5(b), with regard to rights to receive
dividends, mandatory redemption payments and distributions upon liquidation,
dissolution or winding up of the Corporation, the Series B Preferred Stock shall
rank prior to any other equity securities of the Corporation, including all
classes of the Common Stock, $.001 par value per share, of the Corporation.
RESOLVED, FURTHER, that the appropriate officers of the Corporation are
hereby authorized to execute and acknowledge a certificate setting forth these
resolutions and to cause such certificate to be filed and recorded, all in
accordance with the requirements of Section 151(g) of the Delaware General
Corporation Law. No shares of the Series B Preferred Stock have been issued.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
duly executed on its behalf, this 30th day of August, 1995.
INDENET, INC.
By: Robert W. Lautz, Jr.
-------------------------------
Robert W. Lautz, Jr., President
and Chief Executive Officer
Attest:
Lewis K. Eisaguirre
- ------------------------------
Lewis K. Eisaguirre, Secretary
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STATE OF NEW YORK,
COUNTY OF NEW YORK.
BE IT REMEMBERED, that on this 30th day of August, 1995, before me the
subscriber, a notary public, personally appeared Lewis K. Eisaguirre who, being
by me duly sworn on his oath, doth depose and make proof to my satisfaction,
that he is the Secretary of IndeNet Inc., the corporation named in the within
instrument; that Robert W. Lautz, Jr. is the President and Chief Executive
Officer of said corporation; that the execution, as well as the making of this
instrument, has been duly authorized by a proper resolution of the board of
directors of said corporation; that deponent well knows the corporate seal of
said corporation; and the seal affixed to said instrument is such corporate
seal.
Lewis K. Eisaguirre,
------------------------------
Lewis K. Eisaguirre, Secretary
Sworn to and subscribed before me,
the date aforesaid
Ellen M. Walker
- -----------------------
Notary Public
ELLEN M. WALKER
NOTARY PUBLIC, STATE OF NEW YORK
NO. 31-4709400
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES OCTOBER 31, 1995
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EXHIBIT 5
[MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. LETTERHEAD]
February 4, 1999
Enterprise Software, Inc.
38705 Seven Mile Road
Livonia, Michigan 48152
Gentlemen:
With respect to the registration statement on Form S-8 (the
"Registration Statement") being filed today with the Securities and Exchange
Commission (the "Commission") by Enterprise Software, Inc., a Delaware
corporation (the "Company"), for the purpose of registering under the Securities
Act of 1933, as amended (the "Act"), 540,000 shares of the common stock, $.001
par value, of the Company (the "Registered Shares") that may be acquired upon
exercise of options granted under the Enterprise Software, Inc. 1998 Employee
Stock Option Plan (the "Plan") (which Registered Shares may consist of shares
already issued or newly issued shares), we, as your counsel, have examined such
certificates, instruments, and documents and have reviewed such questions of law
as we have considered necessary or appropriate for the purpose of this opinion,
and, on the basis of such examination and review, we advise you that, in our
opinion:
1. The Registered Shares have been legally authorized.
2. When the Registration Statement has become effective and any newly
issued Registered Shares have been acquired upon exercise of options granted
under the Plan and payment of the exercise price therefor, said newly issued
Registered Shares will be validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission.
Very truly yours,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
/s/ MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
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EXHIBIT 23(a)
The Board of Directors
Enterprise Software, Inc.
We consent to incorporation by reference in this registration statement on Form
S-8 to be fled by Enterprise Systems, Inc. of our report dated May 29, 1998,
relating to the consolidated balance sheet of Enterprise Software, Inc. as of
March 31, 1998 and the related consolidated statements of operations, changes of
stockholders' equity, and cash flows for the year then ended, which report
appears in the March 31, 1998 annual report on Form 10-KSB of Enterprise
Software, Inc.
KPMG LLP
/s/ KPMG LLP
----------------------
KPMG LLP
Detroit, Michigan
February 3, 1999
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Enterprise Software, Inc.
Livonia, Michigan
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Enterprise Software, Inc. of our report dated June 18, 1997 relating
to the consolidated balance sheet of Enterprise Software, Inc. (formerly known
as IndeNet, Inc.) and Subsidiaries as of March 31, 1997, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
the year then ended, which report appears in the March 31, 1998 annual report on
Form 10-KSB of Enterprise Software, Inc. and Subsidiaries
/s/ BDO Seidman, LLP
-----------------------
BDO Seidman, LLP
Los Angeles, California
February 4, 1999
