<PAGE>
EXHIBIT 4.4
AMENDED
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF SERIES G
8% CONVERTIBLE PREFERRED STOCK
OF
ImaginOn, Inc.
(a Delaware corporation)
_______________________________________________________________________________
ImaginOn, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Company"):
DOES HEREBY CERTIFY:
1. No shares of the Series G 8% Convertible Preferred Stock of ImaginOn,
Inc. have been issued or are outstanding.
2. The following resolutions have been adopted by the board of directors
of the Company in accordance with Section 151(g) of the Delaware General
Corporation Law for the purpose of amending the Company's Certificate of
Designations, Preferences and Rights of Series G 8% Convertible Preferred Stock,
as amended to date. The resolutions setting forth the proposed amendments are
as follows:
RESOLVED, that the Certificate of Designations, Preferences and Rights of
Series G 8% Convertible Preferred Stock be amended by replacing Section
2(a) of the Company's Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock with the following:
(a) Holders shall be entitled to receive, out of funds legally
available therefor, and the Company shall pay, cumulative dividends at the
rate per share (as a percentage of the Stated Value per share ) of 8% per
annum, payable half yearly (and to the extent accrued but not yet paid upon
conversion) in cash or in Common Stock valued at the Conversion Price (as
defined in Section 5(c)(i) below). Subject to the terms and conditions
herein, the decision whether to pay for dividends in cash or Common Stock
shall be at the discretion of the Company. Dividends on the Preferred
Stock shall be calculated on the basis of a 360-day year, shall accrue
daily commencing on the Original Issue Date (as defined in Section 7
below), and shall be deemed to accrue from such date whether or not earned
or declared and whether or not there are profits, surplus or other funds of
the Company legally available for the payment of dividends. Any dividends
that are not paid within six Trading Days (as defined in Section 7 below)
of the dividend payment date shall continue to accrue and shall entail a
late fee, which must be paid in cash at the rate of 18% per annum or the
lesser rate permitted by applicable law (such fees to accrue daily, from
the date such dividends are due hereunder through and including the date of
payment).
-1-
<PAGE>
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by replacing Section
5(b)(i) of the Company's Certificate of Designations, Preferences and Rights of
Series G 8% Convertible Preferred Stock with the following:
(b)(i) Not later than three (3) business days if the address for
delivery is in the United States or five (5) business days if the address for
delivery is outside the United States after (a) the business day on which the
Company has received both a Conversion Notice (by facsimile or other delivery)
and the original certificate representing the Preferred Stock being converted
(and if the same are not delivered to the Company on the same date, the date of
delivery of the second of such items) or (b) the date an interest payment on the
Preferred Stock, which the Company has elected to pay by the issuance of Common
Stock, as contemplated by the Preferred Stock, was due, the Company shall
deliver to the Holder (x) a certificate or certificates which shall be free of
restrictive legends and trading restrictions (other than those required by
Section 5.7 of the Purchase Agreement) representing the number of shares of
Common Stock being acquired upon the conversion of shares of Preferred Stock,
(y) one or more certificates representing the number of shares of Preferred
Stock not converted and (c) a bank check in the amount of accrued and unpaid
dividends (if the Company has elected or is required to pay accrued dividends in
cash). If in the case of any Conversion Notice such certificate or certificates
are not delivered to or as directed by the applicable Holder by the third or
fifth business day as specified above, the Holder shall be entitled to elect by
written notice to the Company at any time on or before its receipt of such
certificate or certificates thereafter, to rescind such conversion, in which
event the Company shall immediately return the certificates representing the
shares of Preferred Stock tendered for conversion.
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by replacing Section
5(b)(ii) of the Company's Certificate of Designations, Preferences and Rights of
Series G 8% Convertible Preferred Stock with the following:
(b)(ii) If the Company fails to deliver to the Holder such
certificate or certificates pursuant to Section 5(b)(i), by the third or fifth
business day, the Holder shall be entitled on its next conversion of Preferred
Stock, to a 1% discount off the then Conversion Price for each Trading Day after
such third or fifth business day until such certificates are delivered. Upon
receipt of the late certificates, the Holder will cause to be sent to the
Company by facsimile a notice stating the date of receipt of the certificates
and the number of days beyond the third or fifth Trading Day by which the
certificates were late in substantially the form set forth as Exhibit B hereto.
Nothing herein shall limit a Holder's right to pursue actual damages for the
Company's failure to deliver certificates representing shares of Common Stock
upon conversion within the period specified herein and such Holder shall have
the right to pursue all remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief.
-2-
<PAGE>
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by replacing Section
5(c)(i) of the Company's Certificate of Designations, Preferences and Rights of
Series G 8% Convertible Preferred Stock with the following:
(c)(i) The conversion price for each share of Preferred Stock in
effect on any Conversion Date (the "Conversion Price") shall be determined as
----------------
follows: the Conversion Price shall equal the lower of $0.60, or 80% of the
Market Price on the Conversion Date (the "Initial Conversion Price"); provided,
------------------------
however, that in no event shall the Conversion Price be less than $0.10 (the
"Minimum Conversion Price"). The "Market Price" shall be defined as the average
------------
of the closing bid prices of the Company's Common Stock over the immediately
preceding five (5) consecutive Trading Days as reported by Nasdaq SmallCap
Market on the Conversion Date. Notwithstanding the foregoing, if the Company is
obligated to pay damages pursuant to Section 2(c)(i) of the Registration Rights
Agreement and fails to pay any such amount within five (5) days of its due date,
the Conversion Price shall immediately and automatically be adjusted to $0.25.
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by replacing Section
5(c)(iii) of the Company's Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock with the following:
(iii) Subject to the exclusions set forth below, if at any time
while any shares of Preferred Stock are outstanding (the "MFN Period"), the
Company sells any shares of its Common Stock at a per share selling price ("Per
Share Selling Price") lower than the Conversion Price then in effect, the
Conversion Price shall be adjusted downward to equal such lower Per Share
Selling Price; provided, however, that in no event shall the Conversion Price be
adjusted below the Minimum Conversion Price. The Company shall give to the
Investors written notice of any such sale within 24 hours of the closing of any
such sale and shall within such 24 hour period issue a press release announcing
such sale.
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by inserting Section 6(i)
of the Company's Certificate of Designations, Preferences and Rights of Series G
8% Convertible Preferred Stock with the following:
(i) If the Company shall at any time subdivide its outstanding shares
of Common Stock into a greater number of shares of Common Stock, or declare a
dividend or make any other distribution upon the Common Stock payable in shares
of Common Stock, the Conversion Price in effect immediately prior to such
subdivision or dividend or other distribution shall be proportionately reduced,
and conversely, in case the outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the Conversion Price in effect
immediately prior to such combination shall be proportionately increased. The
Minimum Conversion Price shall not be effected by this adjustment for stock
splits.
-3-
<PAGE>
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by replacing Section
6(a)(i) of the Company's Certificate of Designations, Preferences and Rights of
Series G 8% Convertible Preferred Stock with the following:
(i) the failure of an Underlying Shares Registration Statement
to be declared effective by the Commission on or prior to 120 days following the
Original Issue Date (or 150 days following the Original Issue Date in the case
of a registration statement which is subject to a full Commission review);
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by replacing Section
6(a)(ii) of the Company's Certificate of Designations, Preferences and Rights of
Series G 8% Convertible Preferred Stock with the following:
(ii) if, during the "Effectiveness Period" (as defined in the
Registration Rights Agreement), there is a "Blackout Period" (as that term is
defined in the Registration Rights Agreement) as between the Company and the
Holder of the Preferred Stock extending for longer than 120 days following the
Original Issue Date (or 150 days following the Original Issue Date in the case
of a registration statement which is subject to a full Commission review);
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by replacing Section
6(a)(iii) of the Company's Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock with the following:
(iii) The Company shall fail for any reason to deliver
certificates representing Underlying Shares issuable upon a conversion hereunder
that comply with the provisions hereof prior to the third or fifth day, as is
specified in Section 5(b)(i), or the Company shall provide notice to any Holder,
including by way of public announcement, at any time, of its intention not to
comply with requests for conversion of any shares of Preferred Stock in
accordance with the terms hereof;
FURTHER RESOLVED, that the Certificate of Designations, Preferences and Rights
of Series G 8% Convertible Preferred Stock be amended by replacing the
definition of "Mandatory Redemption Amount" in Section 7 of the Company's
Certificate of Designations, Preferences and Rights of Series G 8% Convertible
Preferred Stock with the following:
"Mandatory Redemption Amount" for each share of Preferred Stock
---------------------------
means the sum of 125% of the liquidation preference of the unconverted Preferred
Stock held by Holder plus all accrued but unpaid dividends on the Preferred
Stock through the date of payment of the Mandatory Redemption Amount.
-4-
<PAGE>
IN WITNESS WHEREOF, ImaginOn, Inc. has caused this certificate to be signed
by its duly authorized officer this the 16th Day of October, 2000.
ImaginOn, Inc.
________________________________________
David Schwartz, Chief Executive Officer
-5-
