Exhibit 4.1
e-automate Corporation
Certificate of Designation
Series 2000-A Convertible Preferred Stock
e-automate Corporation (the "Corporation"), a Delaware
corporation, hereby certifies that pursuant to authority conferred
upon the Board of Directors of the Corporation by its Certificate of
Incorporation, as amended, and in accordance with the provisions of
Section 151 of the General Corporation Law of Delaware ("DGCL"), the
Board of Directors of the Corporation, at a meeting duly called and
held pursuant to Section 141 of the DGCL, duly adopted the following
resolution providing for the designation and the powers,
preferences, and the qualifications, limitations or restrictions
thereof, of the Series 2000-A Convertible Preferred Stock (the
"Series 2000-A Preferred Stock"), which resolution is as follows:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of
its Certificate of Incorporation, as amended, and pursuant to the
General Corporation Law of Delaware, a series of Preferred Stock of
the Corporation is hereby created, such series of Preferred Stock to
be designated the Series 2000-A Preferred Stock, to consist of 5,500
shares, $0.001 par value per share, with a stated value of $1,000
per share (the "Stated Value"). The Series 2000-A Preferred Stock is
being issued pursuant to the terms and conditions of that certain
Securities Purchase Agreement dated as of June 19, 2000, as amended
from time to time (the "Purchase Agreement"), which is incorporated
herein by this reference. Capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the
Purchase Agreement. The powers, preferences and rights, and the
qualifications, limitations or restrictions of the Series 2000-A
Preferred Stock shall be as follows:
1. Voting Rights. Except as otherwise required by
applicable law, each share of Series 2000-A Preferred Stock issued
and outstanding shall have the number of votes equal to the whole
number of shares of common stock into which the share of Series
2000-A Preferred Stock is convertible (with any fractional share
determined on an aggregate conversion basis being rounded to the
nearest whole share).
2. Dividends. The holder of Series 2000-A Preferred Stock
shall be entitled to receive (out of legally available funds)
cumulative dividends equal to 8% per annum and payable quarterly
within 5 days after the last business day of each calendar quarter
(the "Dividend Payment Date"). From and after the occurrence of an
Event of Noncompliance, the holder of Series 2000-A Preferred Stock
shall be entitled to receive (out of legally available funds)
cumulative dividends equal to 21% per annum (the "Default Rate") and
payable on each Dividend Payment Date. The holder of Series 2000-A
Preferred Stock at its option may elect to receive payment of
dividends in cash or in Common Stock at the Conversion Price, as
defined below. Dividends on the Series 2000-A Preferred Stock shall
rank senior to dividends payable on all other series or classes of
stock of the Corporation. Unless all accrued dividends and interest
thereon, if any, have been paid in full, no dividend on any other
stock shall be declared or paid or made, as the case may be, or any
moneys paid to any sinking or purchase fund on any other stock for
the redemption or repurchase thereof. Dividends for less than a full
calendar quarter shall be prorated and based on the actual number of
days elapsed divided by 360 days.
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3. Redemption.
A. Mandatory Redemption. The Corporation shall have the
obligation, at the option of the Holder of Series 2000-A Preferred
Stock, to redeem all of the outstanding shares of Series 2000-A
Preferred Stock by paying a sum per share equal to 125% of the
Stated Value per share, plus accrued and unpaid dividends and
penalties thereon through the date of redemption (collectively, the
"Redemption Price") (i) if an Event of Noncompliance (as defined
herein) occurs, or (ii) if, after the first date upon which the
Company's Common Stock is quoted in the NASDAQ Stock Market System
or reported on the NASD's OTC Bulletin Board, the average of the
closing bid prices for the Company's Common Stock for twenty-two
(22) consecutive trading days, as quoted in the NASDAQ Stock Market
System or reported on the NASD's OTC Bulletin Board, is less than or
equal to $3.25 per share.
B. Notice of Redemption. A Holder of a share of Series 2000-A
Preferred Stock may submit written notice of a redemption, pursuant
to paragraph B above, to the Corporation not less than ten (10) days
prior to the date specified in the notice on which such redemption
is to be made (the "Redemption Date").
C. Redemption Payments. For each share of Series 2000-A
Preferred Stock which is to be redeemed hereunder, the Corporation
shall be obligated on the applicable Redemption Date to pay to the
Holder thereof (upon surrender by such Holder at the Corporation's
principal office of the share certificate) the Redemption Price in
cash or in immediately available funds. If the Corporation does not
make the payment when due, dividends will accrue on all outstanding
Series 2000-A Preferred Stock from and after the Redemption Date at
the Default Rate until paid in full and the Conversion Price
calculated pursuant to Section 4 in connection with any subsequent
conversion of a share of Series 2000-A Preferred Stock will be
reduced by $1.00 per share, without regard to any minimum Conversion
Price.
D. Dividends After Redemption Date. If the Redemption Price to
be paid hereunder is paid in full to the Holder of Series 2000-A
Preferred Stock on the Redemption Date, the redeemed share of Series
2000-A Preferred Stock shall not be entitled to any dividends
accruing after such date and on such date, all rights of the holder
of such shares shall cease, and such shares shall no longer be
deemed to be issued and outstanding.
4. Conversion. Holders of Series 2000-A Preferred Stock
shall have the right, but not the obligation to convert the Stated
Value and any accrued and unpaid dividends thereon into fully paid
and nonassessable shares (calculated as to each conversion to the
nearest number of whole shares) of the common stock, $.001 par
value, of the Corporation (the "Common Stock") at the Conversion
Price, as defined herein, subject to adjustment as provided herein.
"Conversion Price" means 80% of the average of the three lowest
closing bid prices for the Common Stock quoted on the NASDAQ Stock
Market System or reported on the NASD's OTC Bulletin Board during
the 15 trading days preceding the conversion date, subject to a
maximum Conversion Price of $5.75 per share and a minimum Conversion
Price of $3.25 per share.
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Such conversion right may be exercised on or after June 19,
2000 with respect to all or any portion of the Series 2000-A
Preferred Stock. Upon the occurrence of an Event of Noncompliance,
all of the Series 2000-A Preferred Stock shall be immediately
convertible notwithstanding any timing restrictions imposed herein
and the Conversion Price shall not be subject to any limitations on
the minimum imposed herein.
In the case of any Series 2000-A Preferred Stock which is
surrendered for conversion, accrued and unpaid dividends will be
payable on such Series 2000-A Preferred Stock with respect to the
period ending on the conversion date. The Holder at its option may
elect to receive payment of dividends in cash or in Common Stock at
the Conversion Price.
On or after December 19, 2001, the Company may require the
Holder to convert all of the outstanding Series 2000-A Preferred
Stock held by the Holder into shares of Common Stock as provided in
this Designation by delivering to the Holder 30-days prior written
notice of the exercise of this right.
A. Exercise of Conversion Privilege. To exercise the
conversion privilege, the Holder of the Series 2000-A Preferred
Stock shall surrender to the Corporation such Series 2000-A
Preferred Stock, duly endorsed or assigned to the Corporation or in
blank, accompanied by written Notice of Conversion to the
Corporation in the form provided in the Series 2000-A Preferred
Stock that the Holder elects to convert such Series 2000-A Preferred
Stock or, if less than the entire principal amount thereof is to be
converted, the specified portion.
Series 2000-A Preferred Stock shall be deemed to have been
converted immediately prior to the close of business on the day of
surrender of such Series 2000-A Preferred Stock for conversion in
accordance with the foregoing provisions, and at such time the
rights of the Holders of such Series 2000-A Preferred Stock as
Holders shall cease, and the person or persons entitled to receive
the Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Stock as and
after such time.
Within two (2) business days after the conversion date, the
Corporation, without cost to the Holder, shall issue and shall
deliver to the Holder of the converted Series 2000-A Preferred Stock
or the person specified by such Holder a certificate or certificates
for the number of full shares of Common Stock issuable upon
conversion registered in the name of such Holder or such other
person as shall have been specified by such Holder and all accrued
and unpaid dividends on the converted Series 2000-A Preferred Stock
or portion thereof upon which the Holder does not elect to receive
payment in Common Stock.
Upon conversion of Series 2000-A Preferred Stock, the
Corporation shall take all such actions as are necessary in order to
insure that the Common Stock issuable with respect to such
conversion shall be validly issued, fully paid and nonassessable.
The Corporation shall not close its books against the transfer
of Common Stock issued or issuable upon conversion of Series 2000-A
Preferred Stock in any manner which interferes with the timely
conversion of Series 2000-A Preferred Stock. The Corporation shall
assist and cooperate with any Holder of Series 2000-A Preferred
Stock required to make any governmental filings or obtain any
governmental approval prior to or in connection with the conversion
of Series 2000-A Preferred Stock (including, without limitation,
making any filings required to be made by the Corporation).
The Corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Common Stock, solely
for the purpose of issuance upon the conversion of Series 2000-A
Preferred Stock, such number of shares of Common Stock issuable upon
the conversion of all outstanding Series 2000-A Preferred Stock. All
shares of Common Stock which are so issuable shall, when issued, be
duly and validly issued, fully paid and nonassessable and free from
all taxes, liens and charges. The Corporation shall take all such
actions as may be necessary to assure that all such shares of Common
Stock may be so issued without violation of any applicable law or
governmental regulation or any requirements of any domestic
securities exchange upon which shares of Common Stock may be listed
(except for official notice of issuance which shall be immediately
delivered by the Corporation upon each such issuance).
The conversion rights of any Series 2000-A Preferred Stock
subject to redemption hereunder shall terminate on the Redemption
Date for such Series 2000-A Preferred Stock unless the Corporation
has failed to pay to the Holder thereof the Redemption Price of such
Series 2000-A Preferred Stock or portion thereof (plus all accrued
and unpaid dividends and penalties thereon and any premium payable
with respect thereto).
B. Adjustment of Exercise Price and Number of Shares
upon Issuance of Common Stock. If and whenever, on or after the date
of the Purchase Agreement, the Corporation issues or sells (or in
accordance with Section 4.C is deemed to have issued or sold)
(specifically excluding those shares of Common Stock issued and sold
upon the exercise of options and warrants granted prior to the date
of the Purchase Agreement), other than (i) as described in Section
4.D or (ii) pursuant to the Purchase Rights covered by Section 4.I,
any shares of Common Stock for a consideration per share less than
the Fair Market Value (as defined below) per share of the Common
Stock determined as of the earlier of (x) the announcement of such
issuance or sale, or (y) the date of such issuance or sale, then
immediately upon such issuance or sale the Conversion Price shall be
reduced to equal the amount determined by multiplying the Conversion
Price in effect immediately prior to such issuance or sale by a
fraction, the numerator of which will be the sum of (1) the number
of shares of Common Stock deemed outstanding (including Shares
deemed outstanding pursuant to Section 4.C.(i)) immediately prior to
such issuance or sale multiplied by the Fair Market Value per share
of the Common Stock determined as of the date of such issuance or
sale, plus (2) the consideration, if any, received by the
Corporation upon such issuance or sale, and the denominator of which
will be the product derived by multiplying such Fair Market Value
per share of the Common Stock by the number of shares of Common
Stock deemed outstanding (including Shares deemed outstanding
pursuant to Section 4.C.(i)) immediately after such issuance or
sale. Upon each such adjustment of the Conversion Price hereunder,
the number of Conversion Shares issuable upon exercise of Series
2000-A Preferred Stock shall be adjusted to equal the number of
shares determined by multiplying the Conversion Price in effect
immediately prior to such adjustment by the number of Conversion
Shares issuable upon exercise of Series 2000-A Preferred Stock
immediately prior to such adjustment and dividing the product
thereof by the Conversion Price resulting from such adjustment. For
the purposes of this Section 4, the calculation of the number of
shares of Common Stock deemed outstanding shall exclude the
Conversion Shares. "Fair Market Value" means the closing bid
price of a share of Common Stock quoted on the NASDAQ Stock Market
System or reported on the NASD's OTC Bulletin Board. However, until
a share of Common Stock is first quoted on the NASDAQ Stock Market
System or reported on the NASD's OTC Bulletin Board after the date
of this Agreement, "Fair Market Value" means $3.00 per share.
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C. Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Conversion Price under Section 3.B, the
following shall be applicable:
(i) Issuance of Rights or Options or Convertible
Securities. If the Corporation in any manner grants any rights or
options, whether or not immediately exercisable, to subscribe for or
to purchase Common Stock or any stock or other securities
convertible into or exchangeable for Common Stock (including without
limitation convertible common stock) (such rights or options being
herein called "Options" and such convertible or exchangeable stock
or securities being herein called "Convertible Securities") or if
the Corporation in any manner issues or sells any Convertible
Securities, whether or not immediately convertible or exchangeable,
and the Fair Market Value per share for which Common Stock issuable
upon the exercise of such Options or upon conversion or exchange of
such Convertible Securities is less than the Fair Market Value per
share of the Common Stock in effect on the earlier of (x) the
announcement of such grant or issuance or sale and (y) the date of
such grant or issuance or sale, then the total maximum number of
shares of Common Stock issuable upon the exercise of such Options or
upon conversion or exchange of the total maximum amount of such
Convertible Securities issuable upon the exercise of such Options of
upon conversion or exchange of such Convertible Securities shall be
deemed to be outstanding and to have been issued and sold by the
Corporation for such Fair Market Value per share. For purposes of
this paragraph, the Fair Market Value per share for which Common
Stock is issuable upon exercise of such Options or upon conversion
or exchange of such Convertible Securities" is determined by
dividing (A) the total amount, if any, received or receivable by the
Corporation as consideration for the granting of such Options, plus
the minimum aggregate amount of additional consideration payable to
the Corporation upon the exercise of all such Options, plus in the
case of such Options which relate to Convertible Securities, the
minimum aggregate amount of additional consideration, if any,
payable to the Corporation upon the issuance or sale of such
Convertible Securities and the conversion or exchange thereof, by
(B) the total maximum number of shares of Common Stock issuable upon
exercise of such Options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of such
Options. No further adjustment of the Conversion Price shall be made
upon the actual issuance of such Common Stock or of such Convertible
Securities upon the exercise of such Options or upon the actual
issuance of such Common Stock upon conversion or exchange of such
Convertible Securities.
(ii) Change in Option Price or Conversion Rate. If either
the purchase price provided for in any Options, the additional
consideration, if any, payable upon the issue, conversion or
exchange of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exchangeable for
Common Stock shall change at any time to an amount which is less
than the Fair Market Value, then the Conversion Price in effect at
the time of such change shall be adjusted to the Conversion Price
which would have been in effect at such time had such Options or
Convertible Securities still outstanding provided for such changed
purchase price, additional consideration or changed conversion rate,
as the case may be, at the time initially granted, issued or sold
and the number of Conversion Shares shall be correspondingly
readjusted.
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D. Subdivision or Combination of Shares. If the Corporation at
any time subdivides (by any stock split, stock dividend,
recapitalization, or otherwise) the outstanding shares of Common
Stock into a greater number of shares of Common Stock, or pays a
dividend or makes a distribution to holders of outstanding shares of
Common Stock in the form of shares of Common Stock, or combines (by
reverse stock split or otherwise) the outstanding shares of Common
Stock into a smaller number of shares, the Conversion Price of the
Series 2000-A Preferred Stock in effect immediately prior to such
event and the number of shares of Common Stock issuable upon
conversion of the Series 2000-A Preferred Stock shall be
proportionately adjusted so that the holder of the Series 2000-A
Preferred Stock thereafter surrendered for conversion shall be
entitled to receive after the occurrence of any of the events
described the proportionate number of shares of Common Stock to
which the holder would have been entitled had such Series 2000-A
Preferred Stock been exercised immediately prior to the occurrence
of such event, such adjustment to become effective immediately after
the opening of business on the day following the date upon which
such subdivision or combination or reclassification, as the case may
be, becomes effective.
E. Liquidation of the Corporation. In the event of the
liquidation, dissolution, or winding up of the Corporation, a notice
thereof shall be sent to the Holder at least 15 days before the
record date specified for determining holders of the shares of
Common Stock entitled to receive any distribution upon such
liquidation, dissolution, or winding up.
F. Consolidation of Corporation. In the case of any
consolidation or merger of the Corporation with or into another
corporation (other than a consolidation or merger in which the
Corporation is the surviving corporation and which does not result
in any reclassification or change of outstanding shares of the class
issuable upon conversion of the Series 2000-A Preferred Stock), or
in case of any sale or transfer to another corporation of the
property of the Corporation as an entirety or substantially as an
entirety, the Holder of each Series 2000-A Preferred Stock then
outstanding shall have the right to exercise such Series 2000-A
Preferred Stock for the purchase of the kind and amount of shares of
Common Stock and other securities and property receivable upon such
consolidation, merger, sale, or transfer by a holder of the number
of shares of Common Stock which would have been issuable if the
conversion of the Series 2000-A Preferred Stock had occurred
immediately prior to such consolidation, merger, sale, or transfer.
G. Certain Events. If any event occurs of the type
contemplated by the provisions of this Section 4 but not expressly
provided for by such provisions (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other
rights with equity features), then the Corporation's Board of
Directors shall exercise their reasonable judgment consistent with
the fundamental intent of such provisions in making an appropriate
adjustment in the Conversion Price and the number of shares of
Common Stock issuable upon conversion of the Series 2000-A Preferred
Stock so as to protect the rights of the Holder of the Series 2000-A
Preferred Stock.
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H. Notices.
(i) Immediately upon any adjustment of the Conversion
Price, the Corporation shall give written notice thereof to the
Holder, setting forth in reasonable detail and certifying the
calculation of such adjustment.
(ii) The Corporation shall give written notice to the
Holder at least 30 days prior to the date on which the Corporation
closes its books or takes a record (A) with respect to any dividend
or distribution upon the Common Stock, (B) with respect to any pro
rata subscription offer to holders of Common Stock, or (C) for
determining rights to vote with respect to any recapitalization,
reorganization, reclassification, consolidation, merger, sale of all
or substantially all of the Corporation's assets, dissolution or
liquidation.
(iii) The Corporation shall also give written notice to
the Holder at least 30 days prior to the date on which any
recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Corporation's
assets, dissolution or liquidation shall take place.
I. Purchase Rights. If at any time the Corporation grants,
issues or sells any options, convertible securities or rights to
purchase stock, warrants, securities or other property pro rata to
the record holders of the Common Stock (the "Purchase Rights"), then
the Corporation shall grant, issue or sell (as the case may be) to
the Holder the aggregate Purchase Rights which such Holder would
have acquired if such Holder had held the maximum number of shares
of Common Stock issuable upon conversion of all the Series 2000-A
Preferred Stock immediately before the date on which a record is
taken for the grant, issuance or sale of such Purchase Rights or, if
no such record is taken, the date as of which the record holders of
Common Stock are to be determined for the grant, issue or sale of
such Purchase Rights.
5. Events of Noncompliance.
A. Definition. An Event of Noncompliance shall have Occurred if:
(i) the Corporation fails to pay on any Dividend Payment
Date the full amount of dividends then accrued on the Preferred
Stock, whether or not such payments are legally permissible or are
prohibited by any agreement to which the Corporation is subject;
(ii) the Corporation fails to make any redemption payment
(whether following the giving of notice pursuant to paragraph 2C or
otherwise) with respect to the Preferred Stock which it is required
to make hereunder, whether or not such payment is legally
permissible or is prohibited by any agreement to which the
Corporation is subject;
(iii) the Corporation breaches or otherwise fails to
perform or observe any material provision contained herein, in the
Purchase Agreement or in the Related Documents (as defined in the
Purchase Agreement) and (other than with respect to Section 8.1 or
8.2(l) of the Purchase Agreement, the breach of or failure to
perform which shall result in an immediate Event of Noncompliance)
such failure is not cured within fifteen (15) days after the
occurrence thereof;
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(iv) any representation or warranty contained in the
Purchase Agreement or required to be furnished to any holder of
Preferred Stock pursuant to the Purchase Agreement, or any
information contained in writing required to be furnished by the
Corporation or any Subsidiary to any holder of Preferred Stock, is
false or misleading in any material respect on the date made or
furnished;
(v) the Corporation or any 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 Corporation or any Subsidiary
bankrupt or insolvent; or any order for relief with respect to the
Corporation or any Subsidiary is entered under the Federal
Bankruptcy Code; or the Corporation or any Subsidiary petitions or
applies to any tribunal for the appointment of a custodian, trustee,
receiver or liquidator of the Corporation or any Subsidiary or of
any substantial part of the assets of the Corporation or any
Subsidiary, or commences any proceeding (other than a proceeding for
the voluntary liquidation and dissolution of any Subsidiary)
relating to the Corporation or any Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction; or the
Corporation or any Subsidiary takes any action to authorize any of
the foregoing; or any such petition or application is filed, or any
such proceeding is commenced, against the Corporation or any
Subsidiary and either (a) the Corporation or any such Subsidiary by
any act indicates its approval thereof, consent thereto or
acquiescence therein or (b) such petition, application or proceeding
is not dismissed within 60 days;
(vi) any material provision of the Purchase Agreement or
any Related Document shall at any time for any reason be declared to
be null and void, or the validity or enforceability thereof shall be
contested by any party thereto, or a proceeding shall be commenced
by the Corporation or any Governmental Authority or other regulatory
body having jurisdiction over the Corporation, seeking to establish
the invalidity or enforceability thereof, or the Corporation shall
deny in writing that it has any liability or obligation purported to
be created under the Purchase Agreement or any Related Document;
(vii) (A) any registration statement required to be filed
and declared effective by the Corporation pursuant to the Purchase
Agreement shall not become effective as provided in the Purchase
Agreement or shall cease to be effective, (B) the Securities and
Exchange Commission shall issue any stop order suspending the
effectiveness under the Securities Act of any registration statement
required to be filed and declared effective by the Corporation
pursuant to the Purchase Agreement or any state securities
commission suspends the qualification of the Registrable Securities
covered thereby for offering or sale in any jurisdiction, (C) any
proceeding for purposes of either (A) or (B) above is initiated, or
(D) after October 17, 2000 the Common Stock is suspended from
trading on or the price for the Common Stock is not quoted or
reported on the NASDAQ Stock Market System or the NASD's OTC
Bulletin Board;
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(viii) the Company at any time shall not have reserved and
available authorized but unissued shares of Common Stock, solely for
the purpose of issuance upon conversion of the Preferred Stock, in
the number which would be issuable upon the conversion of all of the
issued and outstanding Preferred Stock;
(ix) the occurrence of a Material Adverse Change (as
defined in the Purchase Agreement);
(x) the Company has not acquired all of the rights, title
and interest in and to the Meyers data mining tool on or before July
19, 2000.
B. Right to Cure. Any breach, default in performance
of any provision or Event of Noncompliance of the Purchase Agreement
or any of the Related Documents which directly affects the
Purchaser's ability to acquire the Preferred Shares and Warrants,
convert the Preferred Shares, Exercise the Warrants or sell pursuant
to a valid registration shall be interpreted in accordance with the
terms of the Purchase Agreement or any Related Document. Any breach,
default in performance of any provision of the Purchase Agreement or
any of the Related Documents or Event of Noncompliance which does
not directly affect the Purchaser's ability to acquire the Preferred
Shares and Warrants, convert the Preferred Shares, Exercise the
Warrants or sell pursuant to a valid registration shall be subject
to written notice delivered to the Company and may be cured by the
Company during the five (5) days after receipt of written notice of
such breach, default or Event of Noncompliance.
6. Liquidation and Sale Preferences. In the event of
liquidation, dissolution or winding up, whether voluntary or
involuntary, (an "Event of Liquidation") of the Corporation, the
holders of Series 2000-A Preferred Stock, prior and in preference to
the holders of the common stock, shall be entitled to receive (i)
the Stated Value per share of Series 2000-A Preferred (adjusted to
reflect stock dividends, stock splits or recapitalizations, if any),
plus (ii) accrued but unpaid dividends (the "Liquidation
Preference"). The Liquidation Preference shall rank senior to all
other series or classes of stock of the Corporation. After payment
of the Liquidation Preference and any other preferential payments on
other series or classes of stock except the common stock, the
holders of Series 2000-A Preferred Stock shall have no other rights
to the remaining assets of the Corporation. If upon the occurrence
of such event, the assets and funds thus distributed among the
holders of the Series 2000-A Preferred Stock shall be insufficient
to permit the payment to such holders of the full aforesaid
preferential amounts, then the entire assets and funds of the
Corporation legally available for distribution shall be distributed
ratably among the holders of the Series 2000-A Preferred Stock in
proportion to the amount of such stock owned by each such holder.
The Corporation shall mail to each holder of Series 2000-A Preferred
Stock, at least twenty (20) days prior to an Event of Liquidation, a
notice setting forth the date on which such Event of Liquidation is
expected to become effective and the type and amount of anticipated
proceeds per share of common stock to be distributed with respect
thereto and shall afford each such holder the opportunity to convert
such shares of Series 2000-A Preferred Stock pursuant to Section
(iii) (conditional upon the consummation of such Event of
Liquidation) prior to the consummation thereof.
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A consolidation or merger of the Corporation with or into any
other corporation or corporations, or a sale, conveyance, or
disposition of all or substantially all of the assets of the
Corporation, or the effectuation of any acquisition of the
Corporation by any other entity by means of a transaction or series
of related transactions in which more than fifty percent (50%) of
the voting power of the Corporation is disposed of (the "Sale"),
shall be deemed to be an Event of Liquidation; provided, however,
that if holders of Series 2000-A Preferred Stock are to receive more
than the preferential amounts due them under the immediately
preceding paragraph in the Sale, the Sale shall not be an Event of
Liquidation and all holders of Series 2000-A Preferred Stock shall
participate ratably with the holders of common stock and the holders
of any other series of preferred stock with similar rights in
proportion to the amount of shares of common stock owned by each
such holder on an as-converted basis and shall not be entitled to
receive any preferential amounts.
7. Protective Provisions. So long as shares of Series
2000-A Preferred Stock are outstanding, the Corporation shall not
without first obtaining the approval (by vote or written consent),
as provided by law, of the holders of two-thirds of the outstanding
shares of Series 2000-A Preferred Stock: (a) to alter or change the
rights, preferences or privileges of the shares of Series 2000-A
Preferred Stock so as to affect adversely the shares of such stock;
(b) to increase the authorized number of shares of Series 2000-A
Preferred Stock; (c) to create any new class or series of shares of
capital stock with rights or preferences prior to or on a parity
with, or increase the number of shares of, Series 2000-A Preferred
Stock; or (d) to sell or convey or otherwise dispose of all or
substantially all of the property or business of the Corporation. No
repurchases or redemptions of any other series or class of stock of
the Corporation while in default of any provision of the Series
2000-A Preferred Stock.
8. Amendments and Waivers. Series 2000-A Preferred Stock
may be amended only with the written consent of the Holder, and any
existing Event of Noncompliance may be waived only with the written
consent of the Holder.
RESOLVED, that the Board of Directors has determined that the
rights and preferences of the Series 2000-A Preferred Stock are
under the circumstances presently prevailing, fair and equitable to
all the existing stockholders.
IN WITNESS WHEREOF, the Corporation has caused its duly
authorized officers to execute this certificate this 19 day of June,
2000.
e-automate Corporation
By: /s/ Lon Price
------------------------------
Lon Price, President and Chief
Executive Officer
By: /s/ Kim Green
------------------------------
Kim Green, Director of Finance
and Corporate Secretary
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STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On June 19, 2000, personally appeared before me Lon Price,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Lynda A. Holbrook
----------------------------------
NOTARY PUBLIC
My Commission Expires: June 15, 2003
Residing at: Salt Lake City, Utah 84101
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On June 19, 2000, personally appeared before me Kim Green,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Lynda A. Holbrook
----------------------------------
NOTARY PUBLIC
My Commission Expires: June 15,2003
Residing at: Salt Lake City, Utah 84101
<PAGE>
-11-
NOTICE OF CONVERSION
To: e-automate Corporation
The undersigned registered owner of this share of Series 2000-A
Preferred Stock hereby exercises the option to convert this share of
Series 2000-A Preferred Stock, or the portion hereof designated
below, and the accrued dividends thereon designated below into
shares of Common Stock in accordance with the terms of the Series
2000-A Preferred Stock, and directs that the shares issuable and
deliverable upon this conversion be issued and delivered to the
registered owner hereof, unless a different name has been provided
below.
Dated: __________________ ____________________________________
____________________________________
Signature(s)
Complete the following for registration of shares of Common Stock if
they are to be delivered other than to and in the name of the
registered owner:
____________________________________
Name
____________________________________
____________________________________
Address
____________________________________
Soc. Sec. or Tax I.D. No.
<PAGE>
-12-
