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EXHIBIT 4.1
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER SPECIAL RIGHTS OF SERIES A
CONVERTIBLE PREFERRED STOCK
AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS THEREOF
OF
TEKINSIGHT.COM, INC.
(Under Section 151 of the Delaware General Corporation Law)
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CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER SPECIAL RIGHTS OF SERIES A
CONVERTIBLE PREFERRED STOCK
AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS THEREOF
OF
TEKINSIGHT.COM, INC.
(Under Section 151 of the Delaware General Corporation Law)
TekInsight.Com, Inc. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware and formerly known as Tadeo Holdings, Inc. and as Universal
Self Care, Inc., in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of
Directors by the Certificate of Incorporation of said Corporation, said Board of
Directors duly adopted a resolution providing for the authorization of a series
of preferred stock consisting of 7,500,000 shares designated Series A
Convertible Preferred Stock, which resolution is as follows:
RESOLVED: That, pursuant to Article FOURTH of the Certificate
of Incorporation of the Corporation, there be and hereby is authorized and
created a series of Preferred Stock, hereby designated as the Series A
Convertible Preferred Stock, to consist of 7,500,000, par value of $.0001 per
share, having the designations, preferences, relative participating, optional
and other special rights, qualifications, limitations and restrictions as
hereinafter set forth (the "Certificate of Designations"):
ARTICLE 1.
DEFINITIONS
SECTION 1.1. Definitions. The terms defined in this Article
whenever used in this Amendment have the following respective meanings:
(a) [Reserved]
(b) "Affiliate" has the meaning ascribed to such term in Rule
12b-2 under the Securities Exchange Act of 1934, as amended.
(c) "Average Price" means the average of the closing sale
prices per share of Common Stock as reported on The Nasdaq SmallCap Market for
the ten (10) consecutive trading days ending on the trading day that immediately
precedes the Closing Date.
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(d) "Business Day" means a day other than Saturday, Sunday or
any day on which banks located in the State of New York are authorized or
obligated to close.
(e) "Capital Shares" means the Common Shares and any other
shares of any other class or series of Common Stock, whether now or hereafter
authorized and however designated, which have the right to participate in the
distribution of earnings and assets (upon dissolution, liquidation or
winding-up) of the Corporation.
(f) "Closing Date" means the Closing Date as defined in the
Merger Agreement.
(g) "Common Shares" or "Common Stock" means shares of Common
Stock, $.0001 par value, of the Corporation.
(h) "Common Stock Issued at Conversion" when used with
reference to the securities issuable upon conversion of the Series A Preferred
Stock, means all Common Shares now or hereafter Outstanding and securities of
any other class or series into which the Series A Preferred Stock hereafter
shall have been changed or substituted, whether now or hereafter created and
however designated.
(i) "Conversion Date" means any day on which all or any
portion of shares of the Series A Preferred Stock is converted in accordance
with the provisions hereof.
(j) "Conversion Notice" has the meaning set forth in Section
6.2.
(k) "Conversion Rate" means on any date of determination the
applicable rate (e.g., one-for-one) for the conversion of shares of Series A
Preferred Stock into Common Shares on such day as set forth in Section 6.1.
(l) "Corporation" means TekInsight.Com, Inc., a Delaware
corporation, and any successor or resulting corporation by way of merger,
consolidation, sale or exchange of all or substantially all of the Surviving
Corporation's assets, or otherwise.
(m) "Current Conversion Date " means the first anniversary of
the Closing Date.
(n) "Holders" means any Persons who become the registered
owners of shares of Series A Preferred Stock pursuant to the terms and
conditions of the Merger Agreement, or any Persons to whom the Series A
Preferred Stock is subsequently transferred in accordance with the provisions
hereof.
(o) "Merger Agreement " means that certain Agreement and Plan
of Merger, dated February 18, 2000, between the Corporation, Astratek, Inc. and
Data Systems Network Corporation., as amended on April 4, 2000 and June 28,2000.
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(p) "Outstanding" when used with reference to Common Shares or
Capital Shares (collectively, "Shares"), means, on any date of determination,
all issued and outstanding Shares, and includes all such Shares issuable in
respect of outstanding scrip or any certificates representing fractional
interests in such Shares; provided, however, that any such Shares directly or
indirectly owned or held by or for the account of the Corporation or any
Subsidiary of the Corporation shall not be deemed "Outstanding" for purposes
hereof.
(q) "Person" means an individual, a corporation, a
partnership, an association, a limited liability company, a unincorporated
business organization, a trust or other entity or organization, and any
government or political subdivision or any agency or instrumentality thereof.
(r) "SEC" means the United States Securities and Exchange
Commission.
(s) "SEC Investigation" means the formal private investigation
by the SEC of accounting irregularities experienced by Data Systems Network
Corporation ("DSN") in DSN's 1996 and 1997 fiscal years, and of which DSN was
informed by the SEC on October 29, 1998.
(t) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder, all as in effect
at the time.
(u) "Subsidiary" means any entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are owned
directly or indirectly by the Corporation.
(v) "Surviving Corporation" means Astratek, Inc., a New York
corporation, and any successor or resulting corporation by way of merger,
consolidation, sale or exchange of all or substantially all of the Corporation's
asset, or otherwise.
All references to "cash" or "$" herein means currency of the
United States of America.
ARTICLE 2.
RESERVED
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ARTICLE 3.
RANK
The Series A Preferred Stock shall rank (i) prior to the
Common Stock, except as specifically provided for herein; (ii) prior to any
class or series of capital stock of the Corporation hereafter created other than
"Pari Passu Securities" (collectively, with the Common Stock, "Junior
Securities"); and (iii) pari passu with any class or series of capital stock of
the Corporation hereafter created specifically ranking on parity with the Series
A Preferred Stock ("Pari Passu Securities").
ARTICLE 4.
DIVIDENDS
SECTION 4.1. Dividends. (a) The Holders shall be entitled to receive, out of
funds legally available therefor, dividends in the same amount per share as
dividends are paid with respect to the Common Stock (treating each share of
Series A Preferred Stock as being equal to the number of shares of Common Stock
into which each such share of Series A Preferred Stock could be converted
pursuant to the provisions of Article 6 hereof, with such number determined as
of the record date for the determination of Holders of Common Stock entitled to
receive such dividend).
(b) As long as any shares of the Series A Preferred Stock are
Outstanding, no dividends shall be declared or paid or set apart for payment on
Pari Passu Securities for any period unless dividends in the same amount per
share as dividends are paid with respect to the Series A Preferred Stock and
Common Stock (with the Series A Preferred Stock being treated along with the
Common Stock in accordance with the requirements of Section 4.1(a)) have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series A Preferred Stock.
(c) As long as any shares of the Series A Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart for payment or
other distribution declared or made upon Junior Securities (other than the
Common Stock) nor shall any Junior Securities be redeemed, purchased or
otherwise acquired [other than a redemption, purchase or other acquisition of
shares of Common Stock made for purposes of an employee agreement, or incentive
or benefit plan (including a stock option plan), of the Corporation or any
subsidiary (all such dividends, distributions, redemptions or purchases being
hereinafter referred to as a "Junior Securities Distribution")] for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation, directly or
indirectly, unless in each case an equal amount of Junior Securities
Distribution per share as dividends, distributions, redemptions or purchase
amounts are paid with respect to the Series A Preferred Stock, any Pari Passu
Securities and the Common Stock (with the Series A Preferred Stock being treated
along with the Common Stock in accordance with the requirements of Section
4.1(a)).
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ARTICLE 5.
LIQUIDATION PREFERENCE
SECTION 5.1. Liquidation. (a) If the Corporation shall
commence the winding up, dissolution or liquidation of its affairs, and the
Corporation shall liquidate, dissolve or wind up (each such event being
considered a "Liquidation Event"), no distribution shall be made to the Holders
of any shares of capital stock of the Corporation upon liquidation, dissolution
or winding up unless prior thereto, the holders of shares of Series A Preferred
Stock, subject to Article 5, shall have received the Liquidation Preference (as
defined in Section 5.1(b)) with respect to each share. If upon the occurrence of
a Liquidation Event, the assets and funds available for distribution among the
Holders of the Series A Preferred Stock and Holders of Pari Passu Securities
shall be insufficient to permit the payment to such Holders of the preferential
amounts payable thereon, then the entire assets and funds of the Corporation
legally available for distribution to the Series A Preferred Stock and the Pari
Passu Securities shall be distributed ratably among such shares in proportion to
the ratio that the Liquidation Preference payable on each such share bears to
the aggregate Liquidation Preferences payable on all such shares.
(b) For purposes hereof, the "Liquidation Preference" with
respect to a share of the Series A Preferred Stock shall mean an amount equal to
the Average Price (adjusted appropriately for stock splits).
ARTICLE 6.
CONVERSION OF SERIES A PREFERRED STOCK
SECTION 6.1. Conversion. A Holder of any share or shares of
Series A Preferred Stock shall be entitled, at any time and from time to time
after the Current Conversion Date (unless a Liquidation Event has occurred prior
to that date) to cause any or all of such shares to be converted into shares of
Common Stock. The initial Conversion Rate for each share of Series A Preferred
Stock shall be equal to one of the following ratios: (i) in the event that the
closing bid price per share of Common Stock as reported on The Nasdaq SmallCap
Market for the trading date immediately preceding the Closing Date (the "Market
Price") is $3.50 or less , then the initial Conversion Rate for each share of
Series A Preferred Stock shall be equal to one share of Series A Preferred Stock
for-two and one-half (2.5) shares of Common Stock; (ii) in the event that the
Market Price is more than $3.50 but equal to or less than $4.50, then the
initial Conversion Rate for each share of Series A Preferred Stock shall be
equal to one share of Series A Preferred Stock for-one and one-half (1.5) shares
of Common Stock; and (iii) in the event that the Market Price is more than
$4.50, then the initial Conversion Rate for each share of Series A Preferred
Stock shall be equal to one share of Series A Preferred Stock for-one share of
Common Stock. Such initial Conversion Rate shall be adjusted as hereinafter
provided. If a Holder elects to convert Series A Preferred Stock at a time when
there are any declared and unpaid dividends or other amounts due on such shares,
to the extent permitted by applicable law (which the Corporation shall use its
best efforts to comply with in order to permit such payment of declared and
unpaid dividends or other amounts), such dividends and other amounts shall be
paid in full by the Corporation in connection with such conversion.
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SECTION 6.2. Exercise of Conversion Privilege. Conversion of
the Series A Preferred Stock may be exercised, in whole or in part, by the
Holder by telecopying an executed and completed notice of conversion in the form
annexed hereto as Annex I (the "Conversion Notice") to the Corporation. Each
date on which a Conversion Notice is telecopied to and received by the
Corporation in accordance with the provisions of this Section 6.2 shall
constitute a Conversion Date. The Corporation shall convert the Series A
Preferred Stock and issue the Common Stock Issued at Conversion effective as of
the Conversion Date. The Conversion Notice also shall state the name or names
(with addresses) of the persons who are to become the Holders of the Common
Stock Issued at Conversion in connection with such conversion. The Holder shall
deliver the shares of Series A Preferred Stock to the Corporation by express
courier within five (5) days following the date on which the telecopied
Conversion Notice has been transmitted to the Corporation. Upon surrender for
conversion, the Series A Preferred Stock shall be accompanied by a proper
assignment hereof to the Corporation or be endorsed in blank. As promptly as
practicable after the receipt of the Conversion Notice and the surrender of the
Series A Preferred Stock being converted as aforesaid, the Corporation shall (i)
issue the Common Stock Issued at Conversion in accordance with the provisions of
this Article 6, and (ii) cause to be mailed for delivery to the Holder (X) a
certificate or certificate(s) representing the number of Common Shares to which
the Holder is entitled by virtue of such conversion, (Y) cash, as provided in
Section 6.3, in respect of any fraction of a Share issuable upon such conversion
and (Z) cash in the amount of unpaid dividends as of the Conversion Date. Such
conversion shall be deemed to have been effected at the time at which the
Conversion Notice indicates so long as the Series A Preferred Stock shall have
been surrendered as aforesaid at such time, and at such time the rights of the
Holder of the Series A Preferred Stock, as such, shall cease and the Person and
Persons in whose name or names the Common Stock Issued at Conversion shall be
issuable shall be deemed to have become the Holder or Holders of record of the
Common Shares represented thereby. The Conversion Notice shall constitute a
contract between the Holder and the Corporation, whereby the Holder shall be
deemed to subscribe for the number of Common Shares which it will be entitled to
receive upon such conversion and, in payment and satisfaction of such
subscription (and for any cash adjustment to which it is entitled pursuant to
Section 6.4), to surrender the Series A Preferred Stock and to release the
Corporation from all liability thereon. No cash payment aggregating less than
$1.50 shall be required to be given to any Holder unless specifically requested
by the Holder.
SECTION 6.3. Fractional Shares. No fractional Common Shares or
scrip representing fractional Common Shares shall be issued upon conversion of
the Series A Preferred Stock. Instead of any fractional Common Shares which
otherwise would be issuable upon conversion of the Series A Preferred Stock, the
Corporation shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the Average Price (as adjusted for stock splits).
No cash payment of less than $1.50 shall be required to be given unless
specifically requested by the Holder.
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SECTION 6.4. Reclassification, Consolidation, Merger or
Mandatory Share Exchange. At any time while the Series A Preferred Stock remains
outstanding and any shares thereof have not been converted, in case of any
reclassification or change of Outstanding Common Shares issuable upon conversion
of the Series A Preferred Stock (other than a change in par value, or from par
value to no par value per share, or from no par value per share to par value or
as a result of a subdivision or combination of outstanding securities issuable
upon conversion of the Series A Preferred Stock) or in case of any
consolidation, merger or mandatory share exchange of the Corporation with or
into another corporation (other than a merger or mandatory share exchange with
another corporation in which the Corporation is a continuing corporation and
which does not result in any reclassification or change, other than a change in
par value, or from par value to no par value per share, or from no par value per
share to par value, or as a result of a subdivision or combination of
Outstanding Common Shares upon conversion of the Series A Preferred Stock), or
in the case of any sale or transfer to another corporation of the property of
the Corporation as an entirety or substantially as an entirety (any of which
shall be identified as a "Major Corporate Event"), the Corporation, or such
successor, resulting or purchasing corporation, as the case may be, shall,
without payment of any additional consideration therefor, execute a new Series A
Preferred Stock providing that the Holder shall have the right to convert such
new Series A Preferred Stock (upon terms and conditions not less favorable to
the Holder than those in effect pursuant to the Series A Preferred Stock) and to
receive upon such exercise, in lieu of each Common Share theretofore issuable
upon conversion of the Series A Preferred Stock, the kind and amount of shares
of stock, other securities, money or property receivable upon such
reclassification, change, consolidation, merger, mandatory share exchange, sale
or transfer by the Holder of one Common Share issuable upon conversion of the
Series A Preferred Stock had the Series A Preferred Stock been converted
immediately prior to such reclassification, change, consolidation, merger,
mandatory share exchange or sale or transfer. The provisions of this Section 6.4
shall similarly apply to successive reclassifications, changes, consolidations,
mergers, mandatory share exchanges and sales and transfers.
SECTION 6.5. Reservation of Common Stock. The Corporation
shall at all times reserve and keep available out of its authorized and unissued
Common Stock, solely for issuance upon the conversion of Series A Preferred
Stock as herein provided, free from any preemptive rights or other obligations,
such number of shares of Common Stock as shall from time to time be issuable
upon the conversion of all the Series A Preferred Stock then outstanding. The
Corporation shall prepare and shall use its best efforts to obtain and keep in
force such governmental or regulatory permits or other authorizations as may be
required by law, and shall comply with all requirements as to registration,
qualification or listing of the Common Stock, in order to enable the Corporation
lawfully to issue and deliver to each Holder of record of Series A Preferred
Stock such number of shares of its Common Stock as shall from time to time be
sufficient to effect the conversion of all Series A Preferred Stock then
outstanding and convertible into shares of Common Stock.
SECTION 6.6. Adjustments. The Conversion Rate in effect, or
the number of shares of Common Stock into which the Series A Preferred Stock is
convertible, from time to time shall be subject to adjustment as follows:
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(a) Stock Dividends, Subdivisions and Combinations. Upon the
issuance of additional shares of Common Stock as a dividend or other
distribution on outstanding Common Stock (unless also distributed to Holders of
Series A Preferred Stock in accordance with Section 4.1(a)), the subdivision of
outstanding shares of Common Stock into a greater number of shares of Common
Stock, or the combination of outstanding shares of Common Stock into a smaller
number of shares of Common Stock, the Conversion Rate shall, simultaneously with
the happening of such dividend, distribution, subdivision or combination be
adjusted by multiplying the then effective Conversion Rate by a fraction, the
numerator of which shall be the number of shares of Common Stock Outstanding
immediately prior to such event and the denominator of which shall be the number
of shares of Common Stock Outstanding immediately after such event. An
adjustment made pursuant to this Section 6.6(a) shall be given effect, in the
case of payment of such a dividend or distribution, as of the record date for
the determination of stockholders entitled to receive such dividend or
distribution (on a retroactive basis) and in the case of a subdivision or
combination shall become effective immediately as of the effective date thereof.
(b) Other Adjustments. (i) In event the Corporation shall make
or issue, or fix a record date for the determination of Holders of Common Stock
entitled to receive a dividend or other distribution payable in securities of
the Corporation other than shares of Common Stock, then and in each such event
lawful and adequate provision shall be made so that the Holders shall receive
upon conversion thereof in addition to the number of shares of Common Stock
receivable thereupon, the number of securities of the Corporation which they
would have received had their Series A Preferred Stock been converted into
Common Stock on the date of such event and had they thereafter, during the
period from the date of such event to and including the respective Conversion
Date, retained such securities receivable by them as aforesaid during such
period, giving application to all adjustments called for during such period
under this Section 6.6 as applied to such distributed securities.
(ii) If the Common Stock issuable upon the conversion of the
Series A Preferred Stock shall be changed into the same or different number of
shares of any class or classes of stock, whether by reclassification or
otherwise (other than a subdivision or combination of shares or stock dividend,
subdivision or combination provided for above, or a reorganization, merger,
consolidation or sale of assets provided for in Section 6.4), then and in each
such event the Holder shall have the right thereafter to convert such share into
the kind and amount of shares of stock and other securities and property
receivable upon such reclassification or other change, by Holders of the number
of shares of Common Stock into which such shares of Series A Preferred Stock
might have been converted immediately prior to such reclassification or change,
all subject to further adjustment as provided herein.
(iii) In the event that as a result of the SEC Investigation
the Corporation or the Surviving Corporation is notified that the SEC
Investigation will result in any form of monetary penalty or other assessment to
be assessed against the Corporation or the Surviving Corporation for payment by
either such company (the "Penalty"), the quotient found by dividing the dollar
amount of the assessed Penalty by the number of shares of Series A Preferred
Stock that became issuable to the Holders on the Closing Date shall be used as
the numerator, and the Average Price shall be used as the denominator, of a
ratio which when multiplied by the then applicable Conversion Rate shall result
in an adjusted Conversion Rate which will be applicable to all outstanding
shares of Series A Preferred Stock; provided, that to the extent that after
further negotiation the announced Penalty is reduced, the Conversion Rate shall
be further adjusted for all then outstanding shares of Series A Preferred Stock
to reflect the actual amount of the Penalty paid at the time that the SEC
Investigation results in a final order issued by the SEC.
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SECTION 6.7. Notices. In each case of an adjustment or
readjustment of the Conversion Rate, the Corporation will furnish each
registered Holder with a certificate, prepared by the President or Chief
Financial Officer of the Corporation, showing such adjustment or readjustment,
and stating in reasonable detail the facts upon which such adjustment or
readjustment is based.
SECTION 6.8. No Impairment. The Corporation will not, by
amendment of its Certificate of Incorporation, this Certificate of Designations,
or through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation, but will at
all times in good faith assist in the carrying out of all the provisions of this
Article 6 and in the taking of all such action as may be necessary or
appropriate in order to protect the conversion rights of the Holders of the
Series A Preferred Stock against unreasonable impairment.
SECTION 6.9. Automatic Conversion. In the event that on the
fifth anniversary of the Closing Date there are shares of Series A Preferred
Stock outstanding (the "Mandatory Conversion Date"), all Series A Preferred
Stock outstanding shall be converted to Common Stock at the then applicable
Conversion Rate ("Automatic Conversion").
SECTION 6.10. Notice of Automatic Conversion. Notice of
Automatic Conversion pursuant to Section 6.9 shall be provided by the
Corporation to the Holder in writing (by registered mail or overnight courier at
the Holder's last address appearing in the Corporation's security registry) not
fewer than ten (10) nor more than thirty (30) days prior to the Mandatory
Conversion Date.
SECTION 6.11. Surrender of Series A Preferred Stock. Upon
conversion of the Series A Preferred Stock pursuant to Sections 6.9, the Holder
shall either deliver the Series A Preferred Stock by hand to the Corporation at
its principal executive offices or surrender the same to the Corporation at such
address by express courier. Issuance of the Common Stock upon Automatic
Conversion of the Series A Preferred Stock shall be made by the Corporation to
the Holder against receipt of the Series A Preferred Stock.
SECTION 6.12. Reacquired Shares. Any shares of the Series A
Preferred Stock acquired by the Corporation by reason of purchase, conversion or
otherwise shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of
Preferred Stock, unclassified as to series, and may be reissued as part of any
series of Preferred Stock; provided, however, that no such shares shall be
reissued or sold as Series A Preferred Stock.
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ARTICLE 7.
VOTING RIGHTS
SECTION 7.1. Voting Rights.
(a) Except as otherwise expressly provided herein or as
required by law, the Holder of each share of Series A Preferred Stock shall be
entitled to vote on all matters for which Holders of Common Stock are entitled
to vote. Each share of Series A Preferred Stock shall entitle the Holder thereof
to such number of votes per share as shall equal the number of shares of Common
Stock into which each share of Series A Preferred Stock is convertible,
determined as of the date for determination of holders of Common Stock entitled
to vote with respect to such matter. Except as otherwise expressly provided
herein (including, without limitation, the provisions of Article 8 hereof) or as
required by law, the Holders of shares of Series A Preferred Stock and Common
Stock shall vote together as a single class on all matters.
(b) The Corporation shall provide each Holder of Series A
Preferred Stock with prior notification of any meeting of the stockholders (and
copies of proxy materials and other information sent to stockholders), which
notice would be provided pursuant to the Corporation's by laws and the Delaware
General Corporation Law ("GCL"). In the event of any taking by the Corporation
of a record of its stockholders for the purpose of determining stockholders who
are entitled to receive payment of any dividend or other distribution, any right
to subscribe for, purchase or otherwise acquire (including by way of merger,
consolidation or recapitalization) any share of any class or any other
securities or property, or to receive any other right, or for the purpose of
determining stockholders who are entitled to vote in connection with any
proposed liquidation, dissolution or winding up of the Corporation, the
Corporation shall mail a notice to each Holder, at least ten (10) days prior to
the consummation of the transaction or event, whichever is earlier), of the date
on which any such action is to be taken for the purpose of such dividend,
distribution, right or other event, and a brief statement regarding the amount
and character of such dividend, distribution, right or other event to the extent
known at such time.
(c) To the extent that under the GCL the vote of the Holders
of the Series A Preferred Stock, voting separately as a class or series as
applicable, is required to authorize a given action of the Corporation, the
affirmative vote or consent of the Holders of at least a majority of the shares
of the Series A Preferred Stock represented at a duly held meeting at which a
quorum is present or by written consent of a majority of the shares of Series A
Preferred Stock (except as otherwise may be required under the GCL) shall
constitute the approval of such action by the class. To the extent that under
the terms of the Company's Certificate of Incorporation and/or the GCL Holders
of the Series A Preferred Stock are entitled to vote on a matter with Holders of
Common Stock, voting together as one class, each share of Series A Preferred
Stock shall be entitled to a number of votes equal to the number of shares of
Common Stock into which it is then convertible using the record date for the
taking of such vote of stockholders as the date as of which the Conversion Rate
is calculated. Holders of the Series A Preferred Stock shall be entitled to
notice of all stockholder meetings or written consents (and copies of proxy
materials and other information sent to stockholders) with respect to which they
would be entitled to vote, which notice would be provided pursuant to the
Corporation's bylaws and the GCL.
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ARTICLE 8.
PROTECTIVE PROVISIONS
So long as shares of Series A Preferred Stock are outstanding,
the Corporation shall not, without first obtaining the approval (by vote or
written consent, as provided by the GCL) of the Holders of at least a majority
of the then outstanding shares of Series A Preferred Stock:
(a) alter or change the rights, preferences or privileges of
the Series A Preferred Stock;
(b) create any new class or series of capital stock having a
preference over the Series A Preferred Stock as to distribution of assets upon
liquidation, dissolution or winding up of the Corporation ("Senior Securities")
or alter or change the rights, preferences or privileges of any Senior
Securities so as to affect adversely the Series A Preferred Stock;
(c) increase the authorized number of shares of Series A
Preferred Stock; or
(d) do any act or thing not authorized or contemplated by this
Amendment which
would result in taxation of the Holders of shares of the Series A Preferred
Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any
comparable provision of the Internal Revenue Code as hereafter from time to time
amended).
In the event Holders of at least a majority of the then
outstanding shares of Series A Preferred Stock agree to allow the Corporation to
alter or change the rights, preferences or privileges of the shares of Series A
Preferred Stock, pursuant to subsection (a) above, so as to affect the Series A
Preferred Stock, then the Corporation will deliver notice of such approved
change to the Holders of the Series A Preferred Stock that did not agree to such
alteration or change (the "Dissenting Holders") and Dissenting Holders shall
have the right for a period of thirty (30) days to convert pursuant to the terms
of this Amendment as they exist prior to such alteration or change or continue
to hold their shares of Series A Preferred Stock.
ARTICLE 9.
MISCELLANEOUS
SECTION 9.1. Loss, Theft, Destruction of Series A Preferred
Stock. Upon receipt of evidence satisfactory to the Corporation of the loss,
theft, destruction or mutilation of shares of Series A Preferred Stock and, in
the case of any such loss, theft or destruction, upon receipt of indemnity or
security reasonably satisfactory to the Corporation, or, in the case of any such
mutilation, upon surrender and cancellation of the Series A Preferred Stock, the
Corporation shall make, issue and deliver, in lieu of such lost, stolen,
destroyed or mutilated shares of Series A Preferred Stock, new shares of Series
A Preferred Stock of like tenor. The Series A Preferred Stock shall be held and
owned upon the express condition that the provisions of this Section 9.1 are
exclusive with respect to the replacement of mutilated, destroyed, lost or
stolen shares of Series A Preferred Stock and shall preclude any and all other
rights and remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement of negotiable
instruments or other securities without the surrender thereof.
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<PAGE>
SECTION 9.2. Who Deemed Absolute Owner. The Corporation may
deem the Person in whose name the Series A Preferred Stock shall be registered
upon the registry books of the Corporation to be, and may treat it as, the
absolute owner of the Series A Preferred Stock for the purpose of receiving
payment of dividends on the Series A Preferred Stock, for the conversion of the
Series A Preferred Stock and for all other purposes, and the Corporation shall
not be affected by any notice to the contrary. All such payments and such
conversion shall be valid and effectual to satisfy and discharge the liability
upon the Series A Preferred Stock to the extent of the sum or sums so paid or
the conversion so made.
SECTION 9.3. Notice of Certain Events. In the case of the
occurrence of any event described in Sections 6.1, 6.4, 6.6 and 6.9 of this
Certificate of Designations, the Corporation shall cause to be mailed to the
Holder of the Series A Preferred Stock at its last address as it appears in the
Corporation's security registry, at least twenty (20) days prior to the
applicable record, effective or expiration date hereinafter specified (or, if
such twenty (20) days notice is not practicable, at the earliest practicable
date prior to any such record, effective or expiration date), a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend,
distribution, issuance or granting of rights, options or warrants, or if a
record is not to be taken, the date as of which the Holders of record of Series
A Preferred Stock to be entitled to such dividend, distribution, issuance or
granting of rights, options or warrants are to be determined or (y) the date on
which such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up is expected to become effective, and the date as of
which it is expected that Holders of record of Series A Preferred Stock will be
entitled to exchange their shares for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale transfer,
dissolution, liquidation or winding-up.
SECTION 9.4. Register. The Corporation shall keep at its
principal office a register in which the Corporation shall provide for the
registration of the Series A Preferred Stock. Upon any transfer of the Series A
Preferred Stock in accordance with the provisions hereof, the Corporation shall
register such transfer on the Series A Preferred Stock register.
The Corporation may deem the person in whose name the Series A
Preferred Stock shall be registered upon the registry books of the Corporation
to be, and may treat it as, the absolute owner of the Series A Preferred Stock
for the purpose of receiving payment of dividends on the Series A Preferred
Stock, for the conversion of the Series A Preferred Stock and for all other
purposes, and the Corporation shall not be affected by any notice to the
contrary. All such payments and such conversions shall be valid and effective to
satisfy and discharge the liability upon the Series A Preferred Stock to the
extent of the sum or sums so paid or the conversion or conversions so made.
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<PAGE>
SECTION 9.5. Withholding. To the extent required by applicable
law, the Corporation may withhold amounts for or on account of any taxes imposed
or levied by or on behalf of any taxing authority in the United States having
jurisdiction over the Corporation from any payments made pursuant to the Series
A Preferred Stock.
SECTION 9.6. Headings. The headings of the Articles and
Sections of this Amendment are inserted for convenience only and do not
constitute a part of this Certificate of Designations.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Designations this ___ day of __________, 2000.
TEKINSIGHT.COM, INC.
By:
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Attest:
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Secretary
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ANNEX I
[FORM OF CONVERSION NOTICE]
TO:
The undersigned owner of this Series A Convertible Preferred
Stock (the "Series A Preferred Stock") issued by TekInsight.Com, Inc. (the
"Corporation") hereby irrevocably exercises its option to convert __________
shares of the Series A Preferred Stock into shares of the common stock, $.0001
par value, of the Corporation ("Common Stock"), in accordance with the terms of
the Certificate of Designations to the Corporation's Certificate of
Incorporation for Series A Preferred Stock (the "Certificate"). The undersigned
hereby instructs the Corporation to convert the number of shares of the Series A
Preferred Stock specified above into Shares of Common Stock Issued at Conversion
in accordance with the provisions of Article 6 of the Certificate. The
undersigned directs that the Common Stock issuable and certificates therefor
deliverable upon conversion, the Series A Preferred Stock recertificated, if
any, not being surrendered for conversion hereby, together with any check in
payment for fractional Common Stock, be issued in the name of and delivered to
the undersigned unless a different name has been indicated below. All
capitalized terms used and not defined herein have the respective meanings
assigned to them in the Certificate.
Dated:
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-----------------------------------------
Signature
Fill in for registration of Series A Preferred Stock:
Please print name and address
(including zip code number) :
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