<PAGE>
EXHIBIT 3
OPINION RESEARCH CORPORATION
DESIGNATION OF SERIES C PREFERRED STOCK
The undersigned duly authorized officer of Opinion Research Corporation, a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the "Company"), in accordance with the provisions of Section
151 thereof, DOES HEREBY CERTIFY:
That the Certificate of Incorporation of the Company provides that the
Company is authorized to issue one million (1,000,000) shares of Preferred
Stock, par value $.01 per share (the "Preferred Stock"), issuable in series by
the Board of Directors of the Company (the "Board"). On September 13, 1996, the
Company authorized the issuance of ten thousand (10,000) shares of Junior
Participating Preferred Stock, Series A, which constitute a separate series of
Preferred Stock, which shares are reserved for issuance. Such shares are the
only shares of Preferred Stock authorized by the Board to be issued.
That pursuant to the authority conferred upon the Board by the Restated
Certificate of Incorporation of the Company, the Board on September 1, 2000
adopted the following resolution creating a series of shares of Preferred Stock
designated as Series C Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board by the
Company's Restated Certificate of Incorporation, the Board hereby approves
the creation by the Company of a new series of Preferred Stock, Series C,
such series of Preferred Stock to have the terms and conditions as set
forth in a Designation of Series C Preferred Stock as follows:
Series C Preferred Stock. 588,229 shares of the Series C Preferred Stock
------------------------
(the "Series C Preferred Stock") are hereby authorized and the Series C
Preferred Stock shall have the preferences or other special rights,
qualifications, limitations and restrictions applicable thereto as follows:
1. Dividends. (a) Each issued and outstanding share of Series C
---------
Preferred Stock shall entitle the holder of record thereof to receive dividends
at an annual rate of $2.04 per share (the "Dividend Rate") (provided that if
there shall have occurred an Extraordinary Stock Event (as hereinafter defined)
between the date of the purchase agreement between the Company, LLR Equity
Partners, L.P. and LLR Equity Partners Parallel, L.P. dated September 1, 2000
(the "Purchase Agreement") and the date the shares of Common Stock issued
pursuant to the Purchase Agreement were converted into shares of Series C
Preferred Stock, the Dividend Rate shall be adjusted by multiplying the Dividend
Rate by a fraction the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such Extraordinary Stock Event and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately after such Extraordinary Stock Event, the Dividend Rate,
as so adjusted, shall be readjusted in the same manner upon the occurrence of
any subsequent Extraordinary Stock Event) which shall be declared and set apart
or paid on a pari passu basis with the Series B Preferred Stock and before
dividends of any kind may be declared upon the
<PAGE>
Common Stock or any other capital stock of the Company (collectively referred to
as the "Junior Stock"), and before distributions of any kind may be made upon
the issued and outstanding Junior Stock. The aforesaid quarterly dividends shall
accrue from the later of (i) the date of issuance of such share of Series C
Preferred Stock and (ii) September 1, 2005 and shall be paid on a quarterly
basis on the last business day of March, June, September and December (the
"Dividend Payment Date") to each holder of record 15 days prior to such payment
date beginning on the first Dividend Payment Date after the later of (i) the
date of the issuance of the first share of Series C Preferred Stock ("Series C
Preferred Original Issuance Date") and (ii) September 1, 2005.
(b) Notwithstanding anything to contrary contained herein, no dividend
on the Series C Preferred Stock shall be payable on any Dividend Payment Date
unless either: (i) the Company's maximum ratio of Indebtedness to Adjusted
EBITDA (as each such term is defined in the Investment Agreement dated as of May
26, 1999 by and among the Company, Allied Capital Corporation and Allied
Investment Corporation in effect as of September 1, 2000 (the "Investment
Agreement")) for the 12 month period ending on the last day of the fiscal
quarter immediately preceding such Dividend Payment Date, does not exceed 2.5 to
1 and there exists no other Default or Event of Default under the Investment
Agreement; or (ii) the Obligations (as defined in the Investment Agreement) have
been indefeasibly paid in full in cash.
(c) Dividends (or amounts equal to accrued and unpaid dividends)
payable on the Series C Preferred Stock for any period less than a full
quarterly dividend period will be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days elapsed in any period less
than one month. In the event that the Company shall be unable to pay all
dividends which the Series C Preferred Stock (and holders of Preferred Stock
which is equivalent in right of payment of dividends and/or upon Liquidation,
the issuance of which has been approved by the holders of a majority of the
Series B and C Preferred Stock then outstanding ("Pari Passu Stock")) are
entitled, then the Company shall distribute any partial payment ratably to the
holders of all of the issued and outstanding shares of Series C Preferred Stock
and holders of Pari Passu Stock in proportion to the full amounts to which they
are entitled. The dividends shall be cumulative. As used herein, the term
"Extraordinary Stock Event" shall mean (i) the issuance of additional shares of
Common Stock as a dividend or other distribution on outstanding Common Stock,
(ii) a subdivision of outstanding shares of Common Stock into a greater number
of shares of Common Stock (i.e., a stock split), or (iii) a combination of
outstanding shares of Common Stock into a smaller number of shares of Common
Stock (i.e., a reverse stock split).
(d) In the event the Company shall declare a distribution payable in
securities of other persons, evidences of indebtedness issued by the Company or
other persons, assets (excluding cash dividends) or options or rights, then, in
each such case, the holders of the Series C Preferred Stock shall be entitled to
a proportionate share of any such distribution as though the holders of the
Series C Preferred Stock were the holders of the number of shares of Common
Stock into which their shares of Series C Preferred Stock are convertible as of
the record date fixed for the determination of the holders of Common Stock
entitled to receive such distribution.
2
<PAGE>
2. Liquidation. Subject to the pari passu rights of the Series B
-----------
Preferred Stock, in the event of any Liquidation (as hereinafter defined), after
payment or provision for the payment of the debts and other liabilities of the
Company, each issued and outstanding share of Series C Preferred Stock shall
entitle the holder of record thereof to payment at the rate per share of $17.00
(the "Preference Amount") (provided that if there shall have occurred an
Extraordinary Stock Event between the date of the Purchase Agreement and the
date the shares of Common Stock issued pursuant to the Purchase Agreement were
converted into shares of Series C Preferred Stock, the Preference Amount shall
be adjusted by multiplying the Preference Amount by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such Extraordinary Stock Event and the denominator of which shall be
the number of shares of Common Stock outstanding immediately after such
Extraordinary Stock Event, the Preference Amount, as so adjusted, shall be
readjusted in the same manner upon the occurrence of any subsequent
Extraordinary Stock Event) plus an amount equal to all accrued but unpaid
dividends, without interest, on a pari passu basis with the Series B Preferred
Stock and before any payment or distribution of the net assets of the Company
shall be made to or set apart for the holders of record of the issued and
outstanding Junior Stock. However, if after the payment or provision for the
payment of the debts and other liabilities of the Company, the net assets of the
Company shall be insufficient to pay in full the preferential amounts to which
the holders of record of all the outstanding shares of the Series B and the
Series C Preferred Stock (and other holders of Pari Passu Stock) are entitled,
the entire net assets of the Company shall be distributed ratably to the holders
of all the outstanding shares of the Series B Preferred Stock and the Series C
Preferred Stock (and other holders of Pari Passu Stock) in proportion to the
full amounts to which they are entitled, and the holders of the Junior Stock
shall in no event be entitled to participate in the distribution of said net
assets in respect of their Junior Stock. "Liquidation" shall mean (i) any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Company, other than any dissolution, liquidation or winding up in
connection with any reincorporation of the Company in another jurisdiction, and
(ii) any Corporate Transaction (as hereinafter defined). As used herein,
"Corporate Transaction" shall mean (i) any consolidation or merger of the
Company with or into any other corporation or other entity or Person (as
hereinafter defined), or any other corporate reorganization, in which the
stockholders of the Company immediately prior to such consolidation, merger or
reorganization own less than fifty percent (50%) of the Company's voting power
immediately after such consolidation, merger or reorganization, (ii) any
transaction or series of related transactions in which in excess of fifty
percent (50%) of the Company's voting power is transferred to one or more
affiliated Persons, or (iii) a sale, lease, transfer or other disposition of all
or substantially all of the assets of the Company. A "Person" means an
individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
3. Call Option. The Company shall have a call option (the "Call Option")
-----------
to purchase all of the outstanding shares of Series C Preferred Stock. At any
time and from time to time the Company can exercise its Call Option by sending
written notice (the "Call Notice") to
3
<PAGE>
the holders (the "Called Holders") of outstanding shares of Series C Preferred
Stock. The Company shall send the Call Notice to the Called Holders at least 30
days prior to the date specified in the Call Notice as the Exercise Date. The
closing of the purchase of the Series C Preferred Stock pursuant to the exercise
of the Call Option shall take place on the Exercise Date. At the Closing, the
Company shall purchase the outstanding shares of Series C Preferred Stock at a
per share amount equal to the greater of (a) fair market value, or (b) the
Preference Amount, as adjusted pursuant to the terms set forth in this
Designation of Series C Preferred Stock, multiplied by 25.0% per annum,
compounded annually from September 1, 2000, plus any accrued but unpaid
----
dividends per share (the "Call Amount"). For purposes hereof, "fair market
value" shall be determined on an as-converted basis based upon the average of
the fair market value of the Common Stock for the 30 trading days prior to the
Exercise Date, as follows:
(i) If the Company's Common Stock (or any other Common Stock having
the same economic rights) is listed on a national securities exchange or
admitted to unlisted trading privileges on such an exchange or, if not so listed
or admitted to unlisted trading privileges, listed on the National Market System
("NMS") of the National Association of Securities Dealers Automated Quotation
System ("NASDAQ"), the fair market value shall be the last reported sale price
of the Common Stock on such exchange or on the NMS on such day; or
(ii) If the Common Stock (or any other Common Stock having the same
economic rights) is not listed on a national securities exchange or on the NMS
or admitted to unlisted trading privileges on a national securities exchange,
the fair market value shall be the mean of the last bid and asked prices
reported on such day or (B) if reports are unavailable under clause (i) above by
the National Quotation Bureau Incorporated; or
(iii) If the Common Stock (or any other Common Stock having the same
economic rights) is not so listed or admitted to unlisted trading privileges and
bid and asked prices are not so reported, the fair market value shall be an
amount determined in good faith to be the fair market value of a share of Common
Stock (without taking into account any minority discount) in such reasonable
manner as may be prescribed by the Board of Directors of the Company, based on
the fair market enterprise value of the Company and its subsidiaries, if any,
taken as a whole, net of all debt and other senior securities, and shall be
determined in accordance with the following procedures:
(A) The Company shall promptly notify the Called Holders of such
fair market value determination by its Board of Directors and shall send the
Called Holders data forming the basis of the valuation, together with an
explanation thereof.
(B) The Called Holders shall have 15 Business Days after receipt
of notice of such determination in which to consult with the Company and request
further information. As used herein, the term "Business Day" means any day
except a Saturday, Sunday or other day on which commercial banks in the city of
Wilmington, Delaware are authorized or required by law to close.
4
<PAGE>
(C) At the end of any consulting period, if a majority of the
Called Holders voting either as a class, elect to contest the determination of
the Board of Directors (the "Contesting Holders"), such Contesting Holders shall
by notice in writing (the "Appraisal Notice") request an independent appraisal.
In such event, determination of fair market value shall be made by an appraiser
who shall be a nationally recognized independent investment bank jointly
appointed by the Company and the Contesting Holders. If the Contesting Holders
and the Company are unable to agree upon the selection of a nationally
recognized independent investment banker within 20 days after delivery of the
Appraisal Notice, the Contesting Holders and the Company shall, within 20 days
after delivery of the Appraisal Notice, each select a nationally recognized
independent investment banker who shall select a third nationally recognized
independent investment banker to determine the fair market value, which third
investment banker's valuation shall be final and binding upon the Contesting
Holders and the Company with respect to the determination of the fair market
value. The cost and expenses of any appraiser or investment banker shall be
borne by the Company. The Contesting Holders shall have the right and be given
the opportunity to participate in the appraiser's valuation process. The Company
shall use its reasonable best efforts, and the Contesting Holders shall
cooperate, to cause the determination of the appraiser to be made within 15
Business Days of its appointment. The determination of the appraiser shall be
final and binding on the parties.
In the event the Company enters into an agreement to be sold, merged or
consolidated into or with any other company (the "Sale") or the closing of such
sale occurs within one year from the Exercise Date, the Called Holders shall
receive from the Company, within 15 days of the closing of the Sale, in addition
to the Call Amount, an amount equal to the difference, if any, between the Call
Amount and the amount the Called Holders would have received in the sale of the
Company if the Called Holders were the holders of the number of shares of Common
Stock into which their shares of Series C Preferred Stock were convertible
immediately prior to the closing of the Sale. In the event that any of the
amount received by stockholders of the Company is property other than cash, the
fair value of such property shall be determined in accordance with Section
4(b)(xiii) hereof.
4. Conversion.
----------
(a) Optional Conversion. Subject to any conditions herein contained,
-------------------
each share of Series C Preferred Stock shall be convertible at any time and from
time to time, at the option of each holder of record thereof into fully paid and
nonassessable shares of Common Stock upon surrender to the Company of the
certificate or certificates representing the Series C Preferred Stock to be
converted; and, upon receipt by the Company of such surrendered certificate or
certificates with any appropriate endorsement thereon, as may be prescribed by
the Board of Directors, and written notice to the Company (the "Conversion
Notice") by the holder of his or her election to convert the same and setting
forth the name or names in which the shares of Common Stock are to be issued,
such holder shall be entitled to receive a certificate or certificates
representing the shares of Common Stock into which such shares of Series C
5
<PAGE>
Preferred Stock are convertible. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of such surrender of
the shares of Series C Preferred Stock to be converted, and the person or
persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock as of such date; provided, however that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person or persons entitled to receive the shares of
Common Stock issuable upon such conversion as the record holder or holders of
such shares of Common Stock for all purposes at the close of business on the
next succeeding day on which such stock transfer books are open. If the
conversion is in connection with an underwritten public offering of securities
registered pursuant to the Securities Act of 1933, as amended, the conversion
may, at the option of any holder tendering Series C Preferred Stock for
conversion, be conditioned upon the closing with the underwriter of the sale of
securities pursuant to such offering, in which event the person or persons
entitled to receive the Common Stock issuable upon such conversion of the Series
C Preferred Stock shall not be deemed to have converted such Series C Preferred
Stock until immediately prior to the closing of such sale of securities.
(b) Conversion Rate and Conversion Price. The basis for each
------------------------------------
conversion shall be the "Series C Conversion Rate" in effect at the time of
conversion, which for the purposes hereof shall mean the number of shares of
Common Stock issuable for each share of Series C Preferred Stock surrendered for
conversion. As of September 1, 2000, the Series C Conversion Price shall be
$8.50 (provided that if there shall have occurred an Extraordinary Stock Event
between the date of the Purchase Agreement and the date the shares of Common
Stock issued pursuant to the Purchase Agreement were converted into shares of
Series C Preferred Stock, the Series C Conversion Price shall be adjusted by
multiplying the Series C Conversion Price by a fraction the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior to
such Extraordinary Stock Event and the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such Extraordinary Stock
Event, the Series C Conversion Price, as so adjusted, shall be readjusted in the
same manner upon the occurrence of any subsequent Extraordinary Stock Event).
No fractional shares of Common Stock shall be issued upon conversion of the
Series C Preferred Stock. Instead of any fractional shares of Common Stock
which otherwise shall be issuable upon conversion of any shares of Series C
Preferred Stock, the Company shall pay an amount equal to the Series C
Conversion Price of such fractional share (computed to the nearest one hundredth
of a share) in effect at the close of business on the date of conversion. As
used herein, the term "Series C Conversion Rate" shall be an amount computed by
dividing the sum of $17.00 (the "Conversion Amount") (provided that if there
shall have occurred an Extraordinary Stock Event between the date of the
Purchase Agreement and the date the shares of Common Stock issued pursuant to
the Purchase Agreement were converted into shares of Series C Preferred Stock,
the Conversion Amount shall be adjusted by multiplying the Conversion Amount by
a fraction the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such Extraordinary Stock Event and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after such Extraordinary Stock Event, the Conversion Amount, as so
adjusted, shall be readjusted in the same manner upon the occurrence of any
subsequent Extraordinary Stock Event) by the Series C Conversion Price to
determine the number of shares of Common Stock into which one share of the
Series C Preferred Stock is
6
<PAGE>
convertible at the Series C Conversion Price then in effect. Any shares of
Series C Preferred Stock which have been converted shall be canceled. The Board
of Directors of the Company shall at all times reserve a sufficient number of
authorized but unissued shares of Common Stock, which shall be issued only in
satisfaction of the conversion rights and privileges aforesaid.
The Series C Conversion Price shall be subject to adjustment from time to
time after September 1, 2000 as follows:
(i) (A) If the Company shall issue any securities by recapitalization
or reclassification of the Common Stock, each share of Common Stock into which a
share of the Series C Preferred Stock may immediately prior thereto be converted
shall be replaced for the purposes hereof by the securities issuable or
distributable in respect to each such share of Common Stock upon such
recapitalization or reclassification and appropriate adjustment of the Series C
Conversion Rate in effect immediately prior to such recapitalization or
reclassification shall be made, such adjustment to become effective immediately
after the opening of business on the day on which such recapitalization or
reclassification shall become effective.
(B) Upon the happening of an Extraordinary Stock Event, the
Series C Conversion Price then in effect shall, simultaneously with the
happening of such Extraordinary Stock Event, be adjusted by multiplying the then
effective Series C Conversion Price by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding immediately prior to such
Extraordinary Stock Event and the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such Extraordinary Stock
Event, and the product so obtained shall thereafter be the Series C Conversion
Price. The Series C Conversion Price, as so adjusted, shall be readjusted in the
same manner upon the happening of any subsequent Extraordinary Stock Event or
Events.
(ii) Adjustments to Conversion Price for Diluting Issues.
---------------------------------------------------
(A) Special Definitions. For purposes of this Section 4(b)(ii),
the following definitions shall apply:
(1) "Convertible Securities" shall mean any evidence of
indebtedness, stock (other than the shares of Series C Preferred Stock) or other
securities convertible into or exchangeable for Common Stock (other than any
shares of Common Stock that are excluded from the definition of "Additional
Shares of Common Stock" by Section 4(b)(ii)(A)(3) hereof).
(2) "Options" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire (1) shares of any class or series
of Common Stock or Preferred Stock now or hereafter authorized (other than any
shares of Common Stock that are excluded from the definition of "Additional
Shares of Common Stock" by Section 4(b)(ii)(A)(3) hereof) or (2) any Convertible
Securities.
7
<PAGE>
(3) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to Section 4(b)(ii)(C) hereof,
deemed to be issued) by the Company after the Series C Preferred Original
Issuance Date other than shares of Common Stock issued or issuable at any time:
(I) upon the conversion of shares of the Series C
Preferred Stock;
(II) to officers, directors, employees of, or
consultants to, or third parties doing business with, the Company or its
subsidiaries, if any, pursuant to a stock grant, warrant grant, stock option
plan, stock warrant plan, stock option agreement, stock purchase plan, stock
purchase agreement or other similar stock agreement or arrangement approved by
the Board of Directors;
(III) as a dividend or distribution on the Common
Stock;
(IV) in connection with a purchase of, or merger with
another Company approved by the Board of Directors; or
(V) pursuant to a stock option or warrant outstanding
on September 1, 2000 scheduled in the Purchase Agreement.
(B) No Adjustment of Conversion Price. No adjustment of the
Conversion Price shall be made in respect of the issuance of Additional Shares
of Common Stock unless the consideration per share for an Additional Share of
Common Stock issued or deemed to be issued by the Company is less than the
applicable Conversion Price in effect on the date of, and immediately prior to,
such issue.
(C) Deemed Issue of Additional Shares of Common Stock.
(1) If the Company at any time or from time to time after
the Series C Preferred Original Issuance Date shall issue any Options or
Convertible Securities, then the maximum number of shares (as set forth in the
instrument relating thereto without regard to any provisions contained therein
for a subsequent adjustment of such number) of Common Stock issuable upon the
exercise of such Options or, in the case of Convertible Securities and Options
therefor, upon the conversion or exchange of such Convertible Securities, shall
be deemed to be Additional Shares of Common Stock issued as of the date upon
which such Options are granted or the Convertible Securities are actually
issued, provided that Additional Shares of Common Stock shall not be deemed to
have been issued unless the consideration per share (determined pursuant to
Section 4(b)(ii)(D) hereof) of such Additional Shares of Common Stock would be
less than the Series C Conversion Price in effect on the date of and immediately
prior to such grant or issue, and provided further that in any such case in
which Additional Shares of Common Stock are deemed to be issued:
8
<PAGE>
(I) no further adjustment to the Series C Conversion
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities, except as provided in Section
4(b)(ii)(C)(1)(II) below;
(II) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any change in
the amount of consideration payable to the Company, or change in the number of
shares of Common Stock issuable, upon the exercise, conversion or exchange
thereof, the Conversion Price shall, upon any such change becoming effective, be
recomputed to reflect an appropriate increase or decrease reflecting such change
insofar as it affects such Options or the rights of conversion or exchange under
such Convertible Securities, but only if as a result of such adjustment such
Series C Conversion Price as then in effect is not increased above the Series C
Conversion Price which would then have been in effect had such Options and such
Convertible Securities never been granted or issued;
(III) upon the expiration of any such Options or rights
of conversion or exchange under such Convertible Securities which shall not have
been exercised, the Conversion Price shall, upon such expiration, be recomputed
(taking into account, without limitation, all issuances or deemed issuances of
Common Stock during the applicable period) as if:
(X) in the case of Convertible Securities or
Options for Common Stock, the only Additional Shares of Common Stock issued were
the shares of Common Stock, if any, actually issued upon the exercise of such
Options or upon the conversion or exchange of such Convertible Securities, and
the consideration received therefor was the consideration actually received by
the Company for the issue of all such Options, whether or not exercised, plus
the consideration actually received by the Company upon the exercise of all such
Options, plus the consideration actually received by the Company for the issue
of all such Convertible Securities which were actually converted or exchanged,
plus the additional consideration, if any, actually received by the Company upon
such conversion or exchange; and
(Y) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually issued upon the
exercise thereof were issued at the time of issue of such Options, and the
consideration received by the Company for the Additional Shares of Common Stock
deemed to have been issued was the consideration actually received by the
Company for the issue of all such Options, plus the consideration deemed to have
been received by the Company upon the issue of the Convertible Securities with
respect to which such Options were actually exercised;
(IV) no readjustment pursuant to Sections
4(b)(ii)(C)(1)(II) or (III) above shall have the effect of increasing the Series
C Conversion Price to an amount which exceeds the lower of (i) such Series C
Conversion Price on the original
9
<PAGE>
adjustment date, or (ii) the Series C Conversion Price that would have resulted
from any issuance of Additional Shares of Common Stock between the original
adjustment date and such readjustment date; and
(V) in the case of any Options which expire by their
terms not more than thirty (30) days after the date of issue thereof, no
adjustment of the Series C Conversion Price shall be made until the expiration
or exercise of all such Options, whereupon such adjustment shall be made in the
same manner provided in Section 4(b)(ii)(C)(1)(III) above.
(D) Determination of Consideration. For purposes of this Section
4(b)(ii), the consideration received by the Company for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(1) Such consideration shall:
(I) insofar as it consists of cash, be computed at
the aggregate amount of cash received by the Company (after reduction for
applicable selling expenses and sales commissions) excluding amounts paid or
payable for accrued interest or accrued dividends;
(II) insofar as it consists of property other than
cash, be computed at the fair value thereof received by the Company at the time
of such issue (after reduction for applicable selling expenses and sales
commissions and related fees and costs), as determined in accordance with
Section 4(b)(xiii) hereof; and
(III) in the event Additional Shares of Common Stock
are issued together with other shares of securities or other assets of the
Company for consideration which covers both, be the proportion of such
consideration so received, computed as provided in Sections 4(b)(ii)(D)(1)(I)
and (II) above, as determined in accordance with Section 4(b)(xiii).
(2) The consideration per share received by the Company for
Additional Shares of Common Stock deemed to have been issued pursuant to Section
4(b)(ii)(C)(1) hereof, relating to Options and Convertible Securities, shall be
determined by dividing:
(I) the total amount, if any, received or receivable
by the Company as consideration for the issue of such Options or Convertible
Securities (after reduction for applicable selling expenses and sales
commissions and related fees and costs), plus the minimum aggregate amount of
additional consideration (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a subsequent adjustment of
such consideration) payable to the Company upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or, in the case of
Options for Convertible Securities,
10
<PAGE>
the exercise of such Options for Convertible Securities and the conversion or
exchange of such Convertible Securities, by
(II) the maximum number of shares of Common Stock
(as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such number) issuable
upon exercise of such Options or the conversion or exchange of such Convertible
Securities.
(3) Any Additional Shares of Common Stock deemed to have
been issued relating to stock dividends and stock subdivisions shall be deemed
to have been issued for no consideration and will be treated as an Extraordinary
Stock Event under Section 4(b)(i)(B) hereof.
(E) Adjustment of Series C Conversion Price upon Issuance of
Additional Shares of Common Stock. If the Company shall issue Additional Shares
of Common Stock (including Additional Shares of Common Stock deemed to be issued
pursuant to Section 4(b)(ii)(C) hereof) without consideration or for a
consideration per share less than the Series C Conversion Price in effect on the
date of and immediately prior to such issue, then, and in each such event, the
then existing Series C Conversion Price shall be reduced, as of the opening of
the business on the date of such issue, to a price determined by multiplying the
Series C Conversion Price by a fraction (i) the numerator of which shall be (A)
the number of shares of Common Stock outstanding immediately prior to such
issue, plus (B) the number of shares of Common Stock which the aggregate
consideration received by the Company for the total number of Additional Shares
of Common Stock so issued would purchase at such Series C Conversion Price, and
(ii) the denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issue plus the total number of Additional
Shares of Common Stock so issued.
(iii) Upon each adjustment of the Series C Conversion Price under
the provisions of Section 4(b)(i) or (ii) the Series C Conversion Rate shall be
adjusted to an amount determined by dividing the Conversion Amount, as adjusted
pursuant to the terms set forth in this Designation of Series C Preferred Stock,
by such adjusted Series C Conversion Price. No reduction of the Series C
Conversion Price shall be made if the amount of any such reduction would be an
amount less than $.01, but any such amount shall be carried forward and
reduction with respect thereto shall be made at the time of and together with
any subsequent reduction which, together with such amount and any other amount
or amounts so carried forward, shall aggregate $.01 or more.
(iv) In case of any consolidation or merger of the Company with or
into another company, or in case of any sale, lease, mortgage, pledge,
conveyance or other disposition to another company of all or substantially all
the property of the Company, each holder of a share of Series C Preferred Stock
then outstanding and thereafter remaining outstanding shall have the right
thereafter to convert each share held into the kind and amount of shares, other
securities, cash and property receivable upon such transaction by a holder of
the
11
<PAGE>
number of shares of Common Stock into which such share might have been converted
immediately prior to such transaction; in any such event, effective provision
shall be made, in the certificate of incorporation of the resulting or surviving
company or otherwise, so that the provisions set forth herein for the protection
of the conversion rights of the Series C Preferred Stock shall thereafter be
applicable, as nearly as reasonably may be, to any such other shares, other
securities, cash and property deliverable upon conversion of the shares of
Series C Preferred Stock remaining outstanding or other convertible shares or
securities received by the holders in place thereof, and any such resulting or
surviving company shall expressly assume the obligation to deliver, upon the
exercise of the conversion privilege, such shares, other securities, cash or
property as the holders of the shares of Series C Preferred Stock remaining
outstanding, or other convertible shares of securities received by the holders
in place thereof, shall be entitled to receive pursuant to the provisions
hereof, and to make provision for the protection of the conversion right as
above provided.
(v) Notwithstanding anything contained herein to the contrary, the
Company will not effect any capital reorganization or reclassification of
outstanding shares of Common Stock or any Corporate Transaction unless, prior to
the consummation thereof, (a) proper provision is made to ensure that the
holders of Series C Preferred Stock will be entitled to receive the benefits
afforded by this Section 4 and (b) if, following such capital reorganization or
reclassification of outstanding shares of Common Stock or Corporate Transaction,
one or more entities other than the Company shall be required to deliver
securities or other property upon the conversion of the Series C Preferred
Stock, such entity or entities shall assume, by written instrument delivered to
each holder of Series C Preferred Stock, the obligation to deliver to such
holder the securities and property to which, in accordance with the foregoing
provisions, such holder is entitled.
(vi) If any event occurs of the type contemplated by the provisions
of Section 4(b)(i) or (ii) but not expressly provided for by such provision,
then the Board of Directors shall make an appropriate adjustment in the Series C
Conversion Price and the number of shares of Common Stock obtainable upon
conversion of the Series C Preferred Stock so as to protect the rights of the
holders of Series C Preferred Stock; provided that no such adjustment shall
increase the applicable Series C Conversion Price or decrease the number of
shares of Common Stock obtainable as otherwise determined pursuant to this
Section 4.
(vii) The Company shall reserve, and at all times from and after the
respective dates of issuance keep reserved, free from preemptive rights, out of
its authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of Series C Preferred Stock, sufficient
shares of Common Stock to provide for the conversion of all outstanding shares
of Series C Preferred Stock.
(viii) Whenever the Series C Conversion Rate and Series C Conversion
Price is adjusted as herein provided, the Treasurer of the Company shall compute
the adjusted Series C Conversion Rate and Series C Conversion Price in
accordance with the foregoing provisions and shall prepare a written instrument
setting forth such adjusted Series C Conversion Rate and
12
<PAGE>
Series C Conversion Price and showing in detail the facts upon which such
adjustment is based, and such written instrument shall promptly be delivered to
the holders of the Series C Preferred Stock.
(ix) In case: (a) the Company shall declare a dividend (or any
other distribution) on the Common Stock payable otherwise than in shares of
Common Stock; or (b) the Company shall authorize the granting to the holders of
Common Stock rights to subscribe for or purchase any shares of capital stock of
any class or any other rights; or (c) of any reclassification of the capital
stock of the Company (other than a subdivision or combination of outstanding
shares of Common Stock), or of any consolidation or merger to which the Company
is party or of the sale, lease, mortgage, pledge, conveyance or other
disposition of all or substantially all of the property of the Company; or (d)
of the voluntary or involuntary dissolution, liquidation or winding up of the
Company; then the Company shall cause to be mailed to the record holders of the
Series C Preferred Stock at least 20 days prior to the applicable record date
hereinafter specified, a notice stating the date on which a record is to be
taken for the purpose of such dividend, distribution or rights, or, if a record
is not to be taken, the date as of which the holders of record of Common Stock
to be entitled to such dividend, distribution or rights are to be determined or
the date on which such reclassification, consolidation, merger, sale, lease,
mortgage, pledge, conveyance, other disposition, dissolution, liquidation or
winding up is expected to become effective, and the date as of which it is
expected that holders of record of Common Stock shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, consolidation, liquidation, merger, sale, lease,
mortgage, pledge, conveyance, other disposition, dissolution or winding-up.
(x) The Company shall pay all issue taxes, if any, incurred in
respect of the issue of shares of Common Stock on conversion. If a holder of
shares surrendered for conversion specifies that the shares of Common Stock to
be issued on conversion are to be issued in a name or names other than the name
or names in which such surrendered shares stand, the Company shall not be
required to pay any transfer or other taxes incurred by reason of the issuance
of such shares of Common Stock to the name of another, and if the appropriate
transfer taxes shall not have been paid to the Company or the transfer agent for
the Series C Preferred Stock at the time of surrender of the shares involved,
the shares of Common Stock issued upon conversion thereof may be registered in
the name or names in which the surrendered shares were registered, despite the
instructions to the contrary.
(xi) The reference to Common Stock herein shall be deemed to include
shares of any class into which said Common Stock may be changed.
(xii) In the case of any dispute with respect to a conversion, the
Company shall promptly issue such number of shares of Common Stock as are not
disputed in accordance with the provisions hereof. If such dispute involves the
calculation of the Series C Conversion Price, the Company shall submit the
disputed calculations, and shall permit any Series C Preferred Stockholder to
simultaneously submit its data and views, to an independent accounting firm of
13
<PAGE>
national reputation selected jointly by the Board of Directors and the Series C
Preferred Stockholder via facsimile within two Business Days of receipt of the
Conversion Notice. The accounting firm shall audit the calculations and notify
the Company and the Series C Preferred Stockholder of the results not later than
two Business Days from the date it receives the disputed calculations. The
accounting firm's calculation shall be deemed conclusive, absent manifest error.
If applicable, the Company shall then issue the appropriate additional number of
shares of Common Stock in accordance with the provisions hereof.
(xiii) Determination of Fair Value by Board of Directors. Any
-------------------------------------------------
determination of the fair value or form of consideration to be received by the
Company for the issuance of Additional Shares made by the Board of Directors
pursuant to Section 4(b)(ii) hereof shall be accompanied by written notice (the
"Consideration Notice") to each holder of Series C Preferred Stock within five
days of such determination. If a majority of the holders of Series C Preferred
Stock, voting together as a class, elect to contest the determination of the
Board of Directors (the "Contesting Series C Holders"), such Contesting Series C
Holders shall provide written notice of such election (the "Election Notice") to
the Board of Directors within 15 days of receipt of the Consideration Notice. In
such event, the determination of the fair value and form of consideration shall
be made by a nationally recognized independent investment bank jointly appointed
by the Company and the Contesting Series C Holders. If the Contesting Series C
Holders and the Company are unable to agree upon the selection of a nationally
recognized independent investment banker within 20 days after delivery of the
Consideration Notice, the Contesting Series C Holders and the Company shall,
within 20 days after delivery of the Consideration Notice, each selected a
nationally recognized independent investment banker who shall select a third
nationally recognized independent investment banker to determine the fair value,
which third investment banker's valuation shall be final and binding upon the
Contesting Series C Holders and the Company with respect to the determination of
the fair value. The cost and expenses of any appraiser or investment banker
shall be borne by the Company. The Contesting Series C Holders shall have the
right and be given the opportunity to participate in the appraiser's valuation
process. The Company shall use its reasonable best efforts, and the Contesting
Series C Holders shall cooperate, to cause the determination of the appraiser to
be made within 15 Business Days of its appointment. The determination of the
appraiser shall be final and binding on the parties.
(xiv) Cash Payment for Accrued But Unpaid Dividends. In the event
---------------------------------------------
that an Event of Noncompliance has occurred, upon the conversion of any Series C
Preferred Stock, the holder thereof shall also receive an amount in cash equal
to the amount of any accrued but unpaid dividends with respect to such shares;
provided, however, that such payment shall not be made until such time as the
Company satisfies the provisions of Section 1(b) hereof.
5. Voting Rights.
--------------
(a) In addition to other rights provided herein or by law, each
holder of shares of Series C Preferred Stock issued and outstanding shall be
entitled to notice of any stockholders' meeting and to a number of votes thereat
equal to the number of shares of
14
<PAGE>
Common Stock into which such shares of Series C Preferred Stock could be
converted as of the record date for such meeting, and the holders of the Series
C Preferred Stock shall vote together with the holders of Common Stock as one
class. Other than as provided in Section 5 hereof, the holders of Series C
Preferred Stock shall not be entitled any voting rights, including, but not
limited to, the right to vote as a class with respect to a Corporate
Transaction.
(b) In addition to their other voting rights, the holders of Series C
Preferred Stock, as a class, shall be entitled to, by the affirmative vote of
the holders of a majority of the shares of Series C Preferred Stock, nominate
and elect two directors to the Company's Board of Directors (the "Series C
Preferred Directors"); provided, however, that at such time as LLR Equity
Partners L.P. and LLR Equity Partners Parallel, L.P. (collectively, the
"Purchaser") and Purchaser's Permitted Transferees collectively own less than
75% of the Common Stock purchased pursuant to the Purchase Agreement (including
on an as-converted basis any shares of Series C Preferred Stock), the aggregate
number of directors which may be elected by holders of the Series B and Series C
Preferred Stock shall be no greater than three (two of which shall be elected by
the holders of the Series B Preferred Stock and one by the holders of the Series
C Preferred Stock, unless the holders of Series B and Series C Preferred Stock
otherwise agree); provided, further, however, that at such time as the Purchaser
and Purchaser's Permitted Transferees collectively own less than 50% of the
Common Stock purchased pursuant to the Purchase Agreement (including on an as-
converted basis any shares of Series C Preferred Stock) the aggregate number of
directors which may be elected by the holders of Series B and Series C Preferred
Stock shall be no greater than two (which shall be elected by the Series B
holders unless the holders of Series B and Series C Preferred Stock otherwise
agree); provided, further, however that at such time as the Purchaser and
Purchaser's Permitted Transferees collectively own less than 25% of the Common
Stock purchased pursuant to the Purchase Agreement (including on an as-converted
basis any shares of Series C Preferred Stock), the aggregate number of directors
which may be elected by the holders of Series B and Series C Preferred Stock
shall be no greater than one (which shall be elected by the Series B holders
unless the holders of Series B and Series C Preferred Stock otherwise agree);
provided, further, however, that at such time as the Purchaser and Purchaser's
Permitted Transferees collectively own less than 10% of the Common Stock
purchased pursuant to the Purchase Agreement (including on an as converted basis
any shares of Series C Preferred Stock), the right of the holders of Series B
and Series C Preferred Stock to elect directors shall terminate.
A "Permitted Transferee" of a Person shall mean (i) with respect to a
corporation, partnership or limited liability company, any officers, directors,
shareholders, partners or members of such entity or (ii) any Affiliate of such
Person.
An "Affiliate" of a Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
(c) At each time that there is a reduction in the number of directors
that the holders of the Series B Preferred Stock and Series C Preferred Stock
are entitled to elect, if at such time the number of directors elected by such
holders exceeds the number which they are
15
<PAGE>
permitted to elect, such holders shall cause the applicable director or
directors to immediately submit such director's or directors' resignation(s). If
any such required resignation is not submitted on a timely basis, the Company
may cause the removal of the applicable director or directors by giving written
notice thereof to the applicable director or directors.
(d) In the case of any vacancy in the office of either of the Series
C Preferred Directors, the Series C Preferred Stockholders by the affirmative
vote of the holders of a majority of the shares of Series C Preferred Stock
shall nominate and elect a successor to hold the office for the unexpired term
of the director whose place shall be vacant. Any director who shall have been so
elected by the holders of the Series C Preferred Stock or any director so
designated as provided in the preceding sentence hereof, may be removed during
the aforesaid term of office, whether with or without cause, only by the
affirmative vote of the holders of a majority of the Series C Preferred Stock.
(e) In addition to any other vote or consent required herein or by
law, the affirmative vote or written consent of the holders of Series C
Preferred Stock owning a majority of the outstanding shares of Series C
Preferred Stock shall be necessary for effecting or validating the following
actions:
(i) Any amendment, alteration, repeal, or waiver of any
provision of
the certificate of incorporation of the Company, as in effect from time to time,
or the bylaws of the Company which adversely affects the rights, preferences or
privileges of the Series C Preferred Stock;
(ii) Any increase in the authorized number of members of the
Company's Board of Directors to more than 11 members;
(iii) The creation of a new class or series of shares which have
rights, preferences or privileges that are senior to, or are equivalent (pari
passu) with the rights, preferences or privileges of the Series C Preferred
Stock;
(iv) any merger or consolidation by the Company with another
company if it is proposed that the Series C Preferred Stock will be exchanged
for preferred shares of such company;
(v) The redemption or repurchase of stock or options to
purchase stock of the Company by the Company (other than the exercise of the
Call Option pursuant to the terms set forth in this Designation of Series C
Preferred Stock, the repurchase of stock or options from former employees and
consultants of the Company pursuant to repurchase agreements which have been
approved by the Board of Directors and the purchase of Common Stock (the
"Purchase Plan Related Purchases"" in an amount not to exceed issuances pursuant
to the Employee Stock Purchase Plan, provided that such Purchase Plan Related
Purchases shall not exceed 1,000,000 shares of Common Stock in the aggregate or
300,000 shares of Common Stock
16
<PAGE>
in any 12-month period ending September 1 without the approval of the holders of
Series C Preferred Stock as provided above);
(vi) Any declaration or payment or any dividends or
distribution upon any of Common Stock or other equity securities except for
dividends payable on the Series C Preferred Stock.
6. Events of Noncompliance.
-----------------------
(a) Definition. An Event of Noncompliance shall have occurred if:
----------
(i) the Company fails to pay on any Dividend Payment Date,
including, without limitation, as a result of the Company's failure to satisfy
the provisions of Section 1(b) hereof, the full amount of dividends then accrued
on the Series C Preferred Stock, whether or not such payment is legally
permissible or is prohibited by any agreement to which the Company is subject;
(ii) the Company breaches or otherwise fails to perform or
observe any other material covenant or agreement set forth herein and such
failure continues for 15 days after written notice to the Company;
(iii) the Company or any material Subsidiary makes an assignment
for the benefit of creditors or admits in writing its inability to pay its debts
generally as they become due, or an order, judgment or decree is entered
adjudicating the Company or any material Subsidiary bankrupt or insolvent; or
any order for relief with respect to the Company or any material Subsidiary is
entered under the Federal Bankruptcy Code; or the Company or any material
Subsidiary petitions or applies to any tribunal for the appointment of a
custodian, trustee, receiver or liquidator of the Company or any material
Subsidiary or of any substantial part of the assets of the Company or any
material Subsidiary, or commences any proceeding (other than a proceeding for
the voluntary liquidation and dissolution of a Subsidiary) relating to the
Company or any material Subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction; or any such petition or application is filed, or any such
proceeding is commenced, against the Company or any material Subsidiary and
either (a) the Company or any such material Subsidiary by any act indicates its
approval thereof, consent thereto or acquiescence thereon or (b) such petition,
application or proceeding is not dismissed within 60 days; or
(iv) the Company or any material Subsidiary of the Company
shall default in (1) the payment at final maturity of any principal of any
indebtedness with an aggregate principal amount in excess of $5.0 million,
beyond any period of grace provided with respect thereto, after giving effect to
any consents or waivers relating thereto obtained before the expiration of any
such period of grace, and such indebtedness shall not have been paid or defeased
in full or such default shall have continued uncured for a period of 60 or more
calendar days, or (2) the performance or observance of any other covenant,
agreement, term or condition
17
<PAGE>
contained in any agreement or instrument with respect to any indebtedness with
an aggregate principal amount in excess of $5.0 million, if as a result of such
default (after giving effect to any consents or waivers relating thereto
obtained before the expiration of any such period of grace), such obligation
shall be accelerated, become due in full, or be required to be prepaid in full
(whether by redemption, purchase, offer to purchase or otherwise), prior to its
stated maturity, and such acceleration shall not have been rescinded, annulled
or otherwise cured within 60 calendar days after the date of such acceleration.
(b) Consequences of Events of Noncompliance.
---------------------------------------
(i) If an Event of Noncompliance has occurred (and in the case
of an Event of Noncompliance of the type described in Section 6(a)(i) such Event
of Noncompliance has continued for a period of 15 days, and in the case of an
Event of Noncompliance of the type described in Section 6(a)(ii), such Event of
Noncompliance has continued for a period of 45 days), the dividend rate on the
Series C Preferred Stock shall increase to 1.25 times the Dividend Rate
(provided that in the case of an Event of Noncompliance of the type described in
Section 6(a)(i) the increase in the dividend rate shall accrue from the Event of
Noncompliance). Any increase of the dividend rate resulting from the operation
of this subparagraph shall terminate as of the close of business on the date on
which no Event of Noncompliance exists, subject to subsequent increases pursuant
to this Section 6(b)(i).
(ii) If any Event of Noncompliance exists, each holder of
Series C Preferred Stock shall also have any other rights which such holder is
entitled to under any contract or agreement at any time and any other rights
which such Holder may have pursuant to law.
7. No Impairment. The Company will not, by amendment of its certificate
-------------
of incorporation or through any reorganization, 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 of the Series C Preferred Stock set forth herein, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holders of Series C Preferred Stock against impairment.
Without limiting the generality of the foregoing, the Company (a) will not
increase the par value of any shares of stock receivable on the conversion of
the Series C Preferred Stock above the applicable Series C Conversion Price then
in effect, and (b) will take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock on the conversion of all Series C Preferred
Stock from time to time outstanding.
* * *
18
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed and subscribed this
certificate and does affirm the foregoing as true under the penalties of perjury
this 1st day of September, 2000.
OPINION RESEARCH CORPORATION
/s/ Douglas Cox
By: -------------------------------------
Douglas Cox
Chief Financial Officer and Secretary
19
