Registration No. 333-_____
As filed with the Securities and Exchange Commission on December 30, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OBJECTSOFT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 22-3091075
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
Continental Plaza III, 433 Hackensack Avenue
Hackensack, New Jersey 07601
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION PLAN
(Full Title of the Plan)
David E.Y. Sarna
ObjectSoft Corporation
Continental Plaza III, 433 Hackensack Avenue
Hackensack, New Jersey 07601
(Name and Address of Agent for Service)
(201) 343-2100
(Telephone Number, Including Area Code, of Agent for Service)
With a copy to:
Melvin Weinberg, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, NY 10036
(212) 704-6000
Approximate date of commencement of proposed sale to public: From time to time
after the effective date of this registration statement.
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities Amount to Offering Price Proposed Maximum Amount of
to be Registered be Registered per Share Aggregate Offering Price Registration Fee
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Common Stock, par value
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$.0001 per share............750,000 shares (2) $0.765625 (1) $574,218.75 $159.64
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h); based on the average ($.765625) of the
high ($0.875) and low ($0.65625) prices on the Nasdaq SmallCap Market
on December 23, 1998.
(2) Represents 750,000 shares of common stock, of the registrant, par value
$0.0001 per share, available under the Registrant's 1996 Stock Option Plan,
as amended (the "Plan"). Pursuant to Rule 416(b), there shall also be
deemed covered hereby all additional securities resulting from
anti-dilution adjustments under the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by the registrant with the
Securities and Exchange Commission (File No. 1-10751) pursuant to Section 13(a)
of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein
by reference:
(a) The registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997, as amended.
(b) The registrant's Quarterly Reports on Form 10-QSB for the fiscal
quarters ended March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The description of the registrant's Common Stock contained in the
registrant's Registration Statement on Form 8-A filed on October 16, 1996,
including any amendment or report filed for the purpose of updating such
descriptions.
All documents subsequently filed by the Company or the Plan pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 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 a part
hereof from the date of the filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 ("Section 145") of the General Corporation Law of the State
of Delaware ("DGCL") provides, in general, that a corporation incorporated under
the laws of the State of Delaware, such as the registrant, may indemnify 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 (other than a
derivative action by or in the right of the corporation) by reason of the fact
that such person 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 enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. In the case of a
derivative action, a Delaware corporation may indemnify any such person against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner
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such person reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or any other court in which such action was
brought determines such person is fairly and reasonably entitled to indemnity
for such expenses.
The Ninth Article of the Company's Certificate of Incorporation, as
amended, provides that the Company shall indemnify all persons whom the Company
shall have power to indemnify under Section 145 to the fullest extent permitted
by such Section. In addition, Article Eight of the Company's Certificate of
Incorporation provides, in general, that no director of the Company shall be
personally liable to the Company 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 Company 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 provides
that, under certain circumstances, directors may be jointly and severally liable
for willful or negligent violations of the DGCL provisions regarding the payment
of dividends or stock repurchases or redemptions), or (iv) for any transaction
from which the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Description
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4.1 Certificate of Incorporation of the Company. Incorporated by
reference to Exhibit 3.1(a) to the Company's Registration
Statement on Form SB-2 (File No. 333-10519).
4.2 Form of Amendment to Certificate of Incorporation of the
Company, filed with the Secretary of State of Delaware.
Incorporated by reference to Exhibit 3.1(b) to the Company's
Amendment No. 1 to the Registration Statement on Form SB-2
(File No. 333-10519)
4.3 (1) Certificate of Designation of Series C Convertible Preferred
Stock.
4.4 Amended and Restated Bylaws of the Company. Incorporated by
reference to Exhibit 3.2(b) to the Company's Amendment No. 1
Registration Statement on Form SB-2 (File No. 333-10519)
5.1 (1) Opinion of Parker Chapin Flattau & Klimpl, LLP as to the
legality of the Common Stock being offered, and consent.
23.1 (1) Consent of Parker Chapin Flattau & Klimpl, LLP ( included
in Exhibit 5.1 hereto).
23.2 (1) Consent of Richard A. Eisner & Company LLP.
24.1 Power of Attorney (See page 5 of this Registration Statement).
99.1 Registrant's 1996 Stock Option Plan, as amended. Incorporated
by reference to Exhibit 10.3 (b) to the
Company's Post Effective Amendment No. 2 to Registration
Statement on Form SB-2 (File No. 333-10519).
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(1) Filed herewith
Item 9. Undertakings
(A) 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:
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(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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
registration statement is on Form S-3, Form S-8, and 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in 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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
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 Hackensack, New Jersey, on this 30th day of December , 1998.
OBJECTSOFT CORPORATION
By: /s/ David E. Y. Sarna
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David E. Y. Sarna, Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David E. Y. Sarna his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement (including post-effective
amendments) and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact or his substitute or
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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/s/ David E. Y. Sarna Chairman of the Board of Directors December 30, 1998
------------------------------ and Secretary (Co-Principal Executive
David E. Y. Sarna Officer and Principal Financial Officer)
/s/ George J. Febish President, Treasurer and Director December 30, 1998
------------------------------ (Co-Principal Executive Officer and
George J. Febish Principal Accounting Officer)
/s/ Daniel E. Ryan Director December 30, 1998
------------------------------
Daniel E. Ryan
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Certificate of Incorporation of the Company. Incorporated by
reference to Exhibit 3.1(a) to the Company's Registration
Statement on Form SB-2 (File No. 333-10519).
4.2 Form of Amendment to Certificate of Incorporation of the
Company, filed with the Secretary of State of Delaware.
Incorporated by reference to Exhibit 3.1(b) to the Company's
Amendment No. 1 to the Registration Statement on Form SB-2
(File No. 333-10519)
4.3 (1) Certificate of Designation of Series C Convertible Preferred
Stock.
4.4 Amended and Restated Bylaws of the Company. Incorporated by
reference to Exhibit 3.2(b) to the Company's Amendment No. 1
Registration Statement on Form SB-2 (File No. 333-10519)
5.1 (1) Opinion of Parker Chapin Flattau & Klimpl, LLP as to the
legality of the Common Stock being offered, and consent.
23.1 (1) Consent of Parker Chapin Flattau & Klimpl, LLP ( included
in Exhibit 5.1 hereto).
23.2 (1) Consent of Richard A. Eisner & Company LLP.
24.1 Power of Attorney (See page 5 of this Registration Statement).
99.1 Registrant's 1996 Stock Option Plan, as amended. Incorporated
by reference to Exhibit 10.3 (b) to the
Company's Post Effective Amendment No. 2 to Registration
Statement on Form SB-2 (File No. 333-10519).
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(1) Filed herewith
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EXHIBIT 4.3
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Certificate of Designation of Series C
Convertible Preferred Stock of
OBJECTSOFT CORPORATION
It is certified that:
A. The name of the corporation is ObjectSoft Corporation, a Delaware corporation
(hereinafter the "Company").
B. The certificate of the incorporation of the Company, as amended, authorizes
the issuance of Five Million (5,000,000) shares of Preferred Stock, $.0001 par
value per share, and expressly vests in the Board of Directors of the Company
the authority provided therein to issue all of said shares in one or more series
and by resolution or resolutions to establish the designation and number and to
fix the relative rights and preferences of each series to be issued.
C. The Board of Directors of the Company, pursuant to the authority expressly
vested in it, has adopted the following resolutions creating a class of Series C
Preferred Stock:
RESOLVED, that a portion of the Five Million (5,000,000) authorized
shares of Preferred Stock of the Company shall be designated as a separate
series possessing the rights and preferences set forth below:
1. Designation and Amount. The shares of such series shall have a par
value of $.0001 per share and shall be designated as "Series C
Preferred Stock" (the "Series C Preferred Stock") and the number of
shares constituting the Series C Preferred Stock shall be Twenty
Thousand (20,000). The Series C Preferred Stock shall be offered for
sale at a purchase price of One-hundred ($100) per share (the "Purchase
Price").
2. Dividends. The holders of the outstanding shares of Series C Preferred
Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available therefor, dividends
at an annual rate of six percent (6%) of the Purchase Price. Such
dividends shall be deemed to accrue on the Series C Preferred Stock and
be cumulative, whether or not there are profits, surplus or other funds
of the Company legally available for the payment of dividends. If there
shall not have been a sum sufficient for the payment therefor set
apart, the deficiency shall first be paid before any dividend or other
distribution shall be paid or declared and set apart with respect to
any other class of the Company's capital stock, now or hereafter
outstanding. All accrued dividends shall be immediately due and payable
on the date such shares of Series C Preferred Stock are converted into
shares of Common Stock, par value $.0001 per share ("Common Stock") in
accordance with Section 5 hereof, or are redeemed in accordance with
Section 6 hereof. Dividends may be paid in cash or additional
registered shares of Common Stock of the Company, as may be determined,
from time to time, in the sole discretion of the Board of Directors.
The Company shall not be required to pay any dividends on the
outstanding shares of the Series C Preferred Stock prior to the
Conversion Date and/or Redemption Date (as defined below) for such
shares.
For purposes of Certificate, unless the context otherwise requires,
"distribution" shall mean the transfer of cash or property without
consideration, whether by way of dividend or otherwise, payable other
than in shares of Common Stock or other equity securities of the
Company, or the purchase or redemption of shares of Common Stock or
other equity securities of the Company (other than redemptions set
forth in Section 6 below or repurchases of Common Stock or other equity
securities held by employees or consultants of the Company upon
termination of their employment or services pursuant to agreements
providing for such repurchase) for cash or property payable other than
in shares of Common Stock or other equity securities of the Company.
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3. Liquidation, Dissolution or Winding Up
(a) Treatment at Liquidation, Dissolution or Winding Up. In the event
of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, before any distribution may be made with
respect to Common Stock or any other series of capital stock, holders
of each share of Series C Preferred Stock shall be entitled to be paid
out of the assets of the Company available for distribution to holders
of the Company's capital stock of all classes, whether such assets are
capital, surplus, or capital earnings, such amount per share of Series
C Preferred Stock as would have been payable had each such share been
converted into Common Stock immediately prior to such event of
liquidation, dissolution or winding up pursuant to the provisions of
Section 5 plus all accrued dividends and liquidated damages, if any
(collectively, the "Liquidation Amount").
(b) If the assets of the Company available for distribution to its
shareholders shall be insufficient to pay the holders of shares of
Series C Preferred Stock the full amount of the Liquidation Amount to
which they shall be entitled the holders of shares of Series C
Preferred Stock shall share ratably in any distribution of assets
according to the amounts which would be payable with respect to the
shares of Series C Preferred Stock held by them upon such distribution
if all amounts payable on or which respect to said shares were paid in
full.
(c) After the payment of the Liquidation Amount shall have been made
in full to the holders of the Series C Preferred Stock or in the event
the holders cannot be located by the Company funds necessary for such
payment shall have been set aside by the Company in trust for the
account of holders of the Series C Preferred Stock so as to be
available for such payments, the holders of the Series C Preferred
Stock shall be entitled to no further participation in the distribution
of the assets of the Company, and the remaining assets of the Company
legally available for distribution to its shareholders shall be
distributed among the holders of other classes of securities of the
Company in accordance with their respective terms.
(d) The holders of Series C Preferred Stock shall have no priority or
preference with respect to distributions made by the Company in
connection with the repurchase of shares of Common Stock issued to or
held by employees, directors or consultants upon termination of their
employment or services pursuant to agreements providing for the right
of said repurchase between the Company and such persons.
4. Voting Rights. Except as otherwise required by law, and except as set
forth in Section 8 of this Certificate, the holders of Series C
Preferred Stock shall not be entitled to vote upon any matter relating
to the business or affairs of the Company or for any other purpose.
5. Conversion Rights for the Series C Preferred Stock. The holders of
Series C Preferred Stock shall have conversion rights as follows
("Conversion Rights"):
(a) Right to Convert. Each holder of Series C Preferred Stock shall be
entitled (at the times and in the amounts set forth below) to convert,
in whole or in part, in multiples of two hundred fifty (250) shares,
shares of Series C Preferred Stock, at their option, as follows:
(i) up to one-half (1/2) of the shares of Series C Preferred
Stock initially issued to such holder at a particular closing
(a "Closing") any time after the date of such Closing (the
"Closing Date"), and any time thereafter; and
(ii) the remainder of such shares of Series C Preferred Stock
initially issued to such holder at any time beginning thirty
(30) days following the Closing Date, and at any time
thereafter; and
(b) Conversion Rate. Each share of Series C Preferred Stock may be
converted into the number of fully-paid and non-assessable shares of
Common Stock of the Company calculated in accordance with the following
formula ("Conversion Rate"):
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The number of shares issuable upon conversion of one (1) share
of Series C Preferred Stock shall be determined by dividing the
Purchase Price by the Conversion Price, where:
(i) The Purchase Price is defined in Section 1 hereof;
(ii) the Conversion Price equals the lesser of (x) 0.85 times
the average Closing Bid Price, as that term is defined below,
of the Common Stock for the five (5) trading days ending on
the day prior to the Conversion Date, as defined below, or (y)
$2.5313;
(iii) for purposes hereof the term "Closing Bid Price" shall
mean the closing bid price for the Common Stock as quoted by
Bloomberg, LP.
(iv) In the event the Common Stock is delisted from the
Nasdaq SmallCap Market and continues to be so delisted on the
Conversion Date, the Conversion Price shall be equal to 0.85
times the average Closing Bid Price for the last five (5)
trading days prior to the termination of trading, 0.85 times
the average Closing Bid Price for the last five (5) trading
days prior to the Conversion Date or $2.5313, whichever is
less.
(c) Forced Conversion. In the event the holders of the Series C
Preferred Stock have not exercised the Conversion Rights set forth
herein within two years after the date of issuance of the Series C
Preferred Stock, the Series C Preferred Stock shall automatically be
converted as if the holder had exercised their Conversion Rights. In
addition, in the event the Company closes on a public offering of its
shares of Common Stock at a price per share equal to or greater than
$5.0626, then at the election of the Company given by written notice,
each share of Series C Preferred Stock shall automatically convert into
shares of Common Stock on the date ("Offering Conversion Date") which
is seven (7) business days prior to the scheduled closing date of such
public offering at the applicable Conversion Rate above, and the
Offering Conversion Date shall be deemed the Conversion Date with
respect to such shares.
(d) Capital Reorganization or Reclassification. If the Common Stock
issuable upon the conversion of the Series C Preferred Stock shall be
changed into the same or different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification,
stock split, stock dividend, or similar event, then and in each such
event, the holder of each share of Series C Preferred Stock 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
capital reorganization, reclassification or other change which such
holder would have received had its shares of Series C Preferred Stock
been converted immediately prior to such capital reorganization,
reclassification or other change.
(e) Capital Reorganization Merger or Sale of Assets. If at any time or
from time to time there shall be a capital reorganization of the Common
Stock (other than a subdivision, combination, reclassification or
exchange of shares provided for in Section 5(d) above), or a merger or
consolidation of the Company with or into another corporation, or the
sale of all or substantially all of the Company's properties and/or
assets to any other person or entity (any of which events is herein
referred to as a "Reorganization"), then as a part of such
Reorganization, provision shall be made so that the holders of the
Series C Preferred Stock shall thereafter be entitled to receive upon
conversion of the Series C Preferred Stock, the number of shares of
stock or other securities or property of the Company, or of the
successor corporation resulting from such Reorganization, to which such
holder would have been entitled if such holder had converted its shares
of Series C Preferred Stock immediately prior to such Reorganization.
In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 5 with respect to the
rights of the holders of the Series C Preferred Stock after the
Reorganization, to the end that the provisions of this Section 5
(including adjustment of the number of shares issuable upon conversion
of the Series C Preferred Stock) shall be applicable after that event
in as nearly equivalent a manner as may be practicable.
(f) Certificate as to Adjustments; Notice by Company. Upon the
occurrence of each adjustment or readjustment of the Conversion Price
of the Series C Preferred Stock, the Company, at its expense, shall
promptly compute such adjustment or readjustment in accordance with the
terms hereof and prepare and furnish to each holder of such Series C
Preferred Stock a certificate executed by the president and chief
financial officer (or in the absence of a person designated as the
chief financial officer, by
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the treasurer) setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment
are based. The Company shall, upon written request at any time of any
holder of Series C Preferred Stock, furnish or cause to be furnished to
such holder a certificate setting forth (A) the Conversion Price at the
time in effect, and (B) the number of shares of Common Stock and the
amount, if any, of other property which at the time would be received
upon the conversion of a share of Series C Preferred Stock.
(g) Exercise of Conversion Rights. Holders of Series C Preferred
Stock may exercise their right to convert the Series C Preferred Stock
by telecopying an executed and completed Notice of Conversion to the
Company and delivering the original Notice of Conversion in the form
annexed hereto as Exhibit A ("Notice of Conversion") and the
certificate representing the Series C Preferred Stock by express
courier. Each business date on which a Notice of Conversion is
telecopied to and received by the Company along with a copy of the
originally executed Series C Preferred Stock certificates in accordance
with the provisions hereof shall be deemed a "Conversion Date." The
Company will transmit, or instruct its transfer agent to transmit, the
certificates representing shares of Common Stock issuable upon
conversion of any share of Series C Preferred Stock (together with the
certificates representing the Series C Preferred Stock not so
converted) to the holder thereof via express courier, by electronic
transfer or otherwise, within three (3) business days after the
Conversion Date provided the Company has received the original Notice
of Conversion and Series C Preferred Stock certificate being so
converted on the Conversion Date. In addition to any other remedies
which may be available to the holders of shares of Series C Preferred
Stock, in the event that the Company fails to deliver, or has failed to
contact its transfer agent within two (2) business days to deliver,
such shares of Common Stock within such three (3) business day period,
the holder will be entitled to revoke the relevant Notice of Conversion
by delivering a notice to such effect to the Company whereupon the
Company and the holder shall each be restored to their respective
positions immediately prior to delivery of such Notice of Conversion.
The Notice of Conversion and Series C Preferred Stock certificates
representing the portion of the Series C Preferred Stock converted
shall be delivered as follows:
To the Company: ObjectSoft Corporation
Continental Plaza III
433 Hackensack Avenue
Hackensack, New Jersey 07601
Fax: (201) 343-0056
In the event that shares representing the Common Stock issuable upon
conversion of the Series C Preferred Stock (the "Conversion Shares") are not
delivered by the Company, within three (3) business days of receipt by the
Company of a valid Notice of Conversion and the Series C Preferred Stock
certificates to be converted, the Company shall pay to the holders thereof, in
immediately available funds, upon demand, as liquidated damages for such failure
and not as a penalty, for each $100,000 of Series C Preferred Stock sought to be
converted, $1000 for each of the first ten (10) days and $2000 per day
thereafter that the Conversion Shares are not delivered, which liquidated
damages shall run from the fourth business day after the Conversion Date
provided that the Company shall not be responsible for or required to pay such
liquidated damages if such failure to deliver or convert was not caused by any
actions or omissions of the Company or counsel to the Company. Any and all
payments required pursuant to this paragraph shall be payable in cash.
(h) Lost or Stolen Certificates. Upon receipt by the Company of
evidence of the loss, theft, destruction or mutilation of any Series C
Preferred Stock certificate(s), and (in the case of loss, theft or
destruction) of indemnity or security reasonably satisfactory to the
Company, and upon the cancellation of the Series C Preferred Stock
certificate(s), if mutilated, the Company shall execute and deliver new
certificates for Series C Preferred Stock of like tenure and date.
However, the Company shall not be obligated to reissue such lost or
stolen certificates for shares of Series C Preferred Stock if the
holder contemporaneously requests the Company to convert such Series C
Preferred Stock into Common Stock.
(i) Fractional Shares. No shares of Common Stock shall be issued upon
conversion of shares of Series C Preferred Stock. In lieu of any
fractional share to which the holder would be entitled for this
paragraph, the Company shall pay cash in an amount equal to the same
fraction of the Conversion Price of one share of Common Stock
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(j) Partial Conversion. In the event some but not all of the shares of
Series C Preferred Stock represented by a certificate or certificates
surrendered by a holder are converted, the Company shall execute and
deliver to or to the order of the holder, at the expense of the
Company, a new certificate representing the number of shares of Series
C Preferred Stock which were not converted.
(k) Reservation of Common Stock. The Company 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 C Preferred Stock, such number of its shares of
Common Stock as shall from time to time be sufficient or as may be
available to effect the conversion of all outstanding shares of the
Series C 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 the then outstanding shares of the Series C
Preferred Stock, the Company shall use its best efforts to take such
corporate 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.
6. Redemption.
a. The Company may redeem any or all of the outstanding shares
of the Series C Preferred Stock on any date (the "Redemption Date") set
by the Board of Directors of the Company for such redemption at any
time at a redemption price for each share of Series C Preferred Stock,
to be paid in cash on the Redemption Date, equal to the number of
shares issuable upon conversion of such shares of Series C Preferred
Stock on the Redemption Date multiplied by the average Closing Bid
Price of the Common Stock for the last five (5) trading days prior to
the Redemption Date ("Redemption Price") plus an amount equal to all
accrued but unpaid dividends, whether or not declared, to but excluding
the Redemption Date.
b. Not less than 10 days prior to the Redemption Date, the
Company shall send, by facsimile transmission and by first class mail,
postage prepaid, a notice (the "Redemption Notice") to each holder of
Series C Preferred Stock, which notice shall contain all instructions
and materials necessary to enable such holders to tender Series C
Preferred Stock pursuant to the redemption. Such notice shall (i) state
that a redemption is being effected, (ii) specify the Redemption Date,
(iii) state that holders will be required to surrender the certificate
or cer tificates representing such shares, properly endorsed, in the
manner and at the place specified in the notice prior to the close of
business on the business day prior to the Redemption Date, (iv) state
that any shares of Series C Preferred Stock not converted into shares
of Common Stock by the holder on or prior to the close of business on
the business day prior to the Redemption Date shall be deemed to have
been redeemed by the Company on the Redemption Date at the Redemption
Price plus all accrued but unpaid dividends whether or not declared. In
the event the Company fails to deliver the Redemption Price plus
accrued and unpaid dividends on or before the Redemption Date, the
Redemption Notice shall be null and void and the Company will
relinquish its Redemption rights provided by this section.
c. On the Redemption Date, unless the Company defaults in
the payment for the shares of Series C Preferred Stock tendered
pursuant to the redemption, dividends will cease to accrue with respect
to the shares of Series C Preferred Stock tendered. All rights of
holders of such tendered shares will terminate, except for the right to
receive payment therefor, on the Redemption Date.
d. The holders of Series C Preferred Stock may convert such
shares into shares of Common Stock on or prior to the close of business
on the business day prior to the Redemption Date.
7. No Reissuance of Series C Preferred Stock. Any share or shares of
Series C Preferred Stock acquired by the Company by reason of
redemption, purchase, conversion or otherwise shall be canceled, shall
return to the status of authorized but unissued preferred stock of no
designated series, and shall not be reissuable by the Company as Series
C Preferred Stock.
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<PAGE>
8. Restrictions and Limitations
a. Amendments to Charter. The Company shall not amend its
certificate of incorporation without the approval by the holders of at
least a majority of the then outstanding shares of Series C Preferred
Stock if such amendment would:
(i) change the relative seniority rights of the holders of
Series C Preferred Stock as to the payment of dividends in relation to
the holders of any other capital stock of the Company, or create any
other class or series of capital stock entitled to seniority as to the
payment of dividends in relation to the holders of Series C Preferred
Stock;
(ii) reduce the amount payable to the holders of Series C
Preferred Stock upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company, or change the relative
seniority of the liquidation preferences of the holders of Series C
Preferred Stock to the rights upon liquidation of the holders of other
capital stock of the Company, or change the dividend rights of the
holders of Series C Preferred Stock;
(iii) cancel or modify the conversion rights of the holders
of Series C Preferred Stock provided for in Section 5 herein; or
(iv) cancel or modify the rights of the holders of the Series
C Preferred Stock provided for in this Section 8.
9. Notices of Record Date. In the event of:
a. any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof
who are entitled to receive any dividend or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of
stock of any class or any other securities or property, or to receive
any other right, or
b. any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company, any merger of the Company, or any transfer of all or
substantially all of the assets of the Company to any other
corporation, or any other entity or person, or
(THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK)
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<PAGE>
c. any voluntary or involuntary dissolution, liquidation
or winding up of the Company,
then and in each such event the Company shall mail or cause to be mailed to each
holder of Series C Preferred Stock a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right and a description of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
merger, dissolution, liquidation or winding up is expected to become effective
and (iii) the time, if any, that is to be fixed, as to when the holders of
record of Common Stock (or other securities) shall be entitled to exchange their
shares of Common Stock (or other securities) for securities or other property
deliverable upon such reorganization, reclassification, recapitalization,
transfer, merger, dissolution, liquidation or winding up. Such notice shall be
mailed at least ten (10) days prior to the date specified in such notice on
which such action is to be taken.
10. The statements contained in the foregoing, creating and designating the said
Series C issue of Preferred Stock and fixing the number, powers, preferences and
relative, optional, participating, and other special rights and the
qualifications, limitations and restrictions shall, upon the effective date of
said series, be deemed to be included in and be a part of the Certificate of
Incorporation of the Corporation pursuant to the provisions of Sections 104 and
151 of the General Corporation Law of the State of Delaware.
Signed and attested to on September 29, 1998.
/s/ George Febish
-----------------------------------
George Febish, President
Attest:
/s/ David E.Y. Sarna
- -----------------------------------
David E.Y. Sarna, Secretary
Signed on September 29, 1998
-7-
<PAGE>
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in order
to Convert the Series C Preferred Stock)
The undersigned hereby irrevocably elects to convert ___ shares of Series C
Preferred Stock, Certificate No. ___ (the "Preferred Stock") into shares of
Common Stock of OBJECTSOFT CORPORATION (the "Company") according to the
conditions hereof, as of the date written below.
The undersigned represents and warrants that
(i) All offers and sales by the undersigned of the shares of
Common Stock issuable to the undersigned upon conversion of
the Series C Preferred Stock shall be made in compliance with
Regulation D, pursuant to an exemption from registration under
the Securities Act of 1933, as amended (the "Securities Act"),
or pursuant to registration of the Common Stock under the Act,
subject to any restrictions on sale or transfer set forth in
the [Preferred Stock Purchase Agreement] between the Company
and the original holder of the Certificate submitted herewith
for conversion.
(ii) Upon conversion pursuant to this Notice of Conversion, the
undersigned will not own or deemed to beneficially own (within
the meaning of the Securities Exchange Act of 1934, as
amended) 4.9% or more of the then issued and outstanding
shares of the Company.
------------------------------- ----------------------------
Date of Conversion Applicable Conversion Price
------------------------------- ----------------------------
Number of shares of Common Stock $ Amount of Conversion
issuable upon Conversion
--------------------------- ----------------------------
Signature Name
Address: Delivery of Shares to:
EXHIBIT 5.1
------------
December 30, 1998
ObjectSoft Corporation
Continental Plaza III
433 Hackensack Avenue
Hackensack, New Jersey
Ladies and Gentlemen:
We have acted as counsel to ObjectSoft Corporation, a
corporation incorporated under the laws of the State of Delaware (the
"Company"), in connection with its filing of a registration statement
on Form S-8 (the "Registration Statement") being filed with the
Securities and Exchange Commission under the Securities Act of 1933,
relating to the offering of stock options to purchase up to 750,000
shares (the "Shares") of Common Stock, par value $.0001 per share (the
"Common Stock"), granted to certain key employees of the Company
(including directors and officers who are key employees) and to
consultants and advisors and directors who are not employees of the
Company, pursuant to the Company's Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined,
among other things, the Plan, the Registration Statement, and originals
or copies, satisfactory to us, of all such corporate records and of all
such agreements, certificates and other documents as we have deemed
relevant and necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals and the conformity with the original documents of documents
submitted to us as copies. As to any facts material to such opinion, we
have, to the extent that relevant facts were not independently
established by us, relied on certificates of public officials and
certificates, oaths and declarations of officers or other
representatives of the Registrant.
Based upon and subject to the foregoing, we are of the opinion
that the Shares to be issued pursuant to the exercise of options
granted or to be granted under the Plan will be, when issued pursuant
to the provisions of the Plan, validly issued, fully paid and
non-assessable.
We hereby consent to the filing of a copy of this opinion as
an exhibit to the Registration Statement.
Very truly yours,
/s/ Parker Chapin Flattau & Klimpl, LLP
---------------------------------------
Parker Chapin Flattau & Klimpl, LLP
EXHIBIT 23.2
--------------
Consent of Independent Accountants
We consent to the incorporation by reference in the Form S-8
Registration Statement of our report, dated February 20, 1998 with respect to
our audit of the financial statements included in the Company's Annual Report
(Form 10-KSB) for the year ended December 31, 1997.
/s/ Richard A. Eisner & Company, LLP
------------------------------------
Florham Park, New Jersey
December 29, 1998
