<PAGE> 1
EXHIBIT 3.3
CERTIFICATE OF DESIGNATION
OF
RIGHTS AND PREFERENCES
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
XBOX TECHNOLOGIES, INC.
The undersigned Interim Chief Financial Officer of XBOX Technologies,
Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (the "Corporation"), in accordance with the provisions of
Section 151 thereof, does hereby certify that, pursuant to the authority
conferred upon the Board of Directors of the Corporation (the "Board") by the
Certificate of Incorporation of the Corporation, the Board on October 31, 2000,
adopted the following resolution creating a series of One Million (1,000,000)
shares of the Corporation's undesignated preferred stock, par value $.10 per
share, to be designated as Series A Convertible Preferred Stock:
RESOLVED, that pursuant to the authority granted to and vested in this
Board of Directors in accordance with the Certificate of Incorporation of the
Corporation, a new series of preferred stock is hereby created, and that the
designation and amount thereof and the relative rights and preferences of the
shares of such series, are as follows:
1. SHARES AND CLASSES AUTHORIZED. One Million (1,000,000) shares of the
Corporation's undesignated preferred stock, par value $.10 per share,
that are authorized by Article V of the Corporation's Certificate of
Incorporation are designated as Series A Convertible Preferred Stock
(the "SERIES A PREFERRED").
2. VOTING RIGHTS.
2.1 GENERAL. At all meetings of the stockholders of the
Corporation and in the case of any actions of stockholders in
lieu of a meeting, each holder of Series A Preferred shall
have that number of votes on all matters submitted to the
stockholders that is equal to the number of whole shares of
the Company's common stock (the "Common Stock") into which
such holder's shares of Series A Preferred are then
convertible, as provided in Section 5, at the record date for
the determination of the stockholders entitled to vote on such
matters or, if no such record date is established, at the date
such vote is taken or any written consent of such stockholders
is effected. This provision for determination of the number of
votes to which each holder of the Series A Preferred is
entitled shall also apply in cases in which the holders of the
Series A Preferred have the right to vote together as a
separate class. Except as may be otherwise provided in this
Certificate or by agreement, the holders of the Common Stock
and the holders of the Series A Preferred shall vote together
as a single class on all actions to be taken by the
stockholders of the Corporation.
<PAGE> 2
2.2 QUORUM. The presence in person or by proxy of the holders of a
majority of the aggregate number of shares of Common Stock and
Series A Preferred then outstanding (on an as-if converted to
Common Stock basis including fractional shares) shall
constitute a quorum of the Common Stock and Series A
Preferred.
3. DIVIDENDS. The holders of Series A Preferred shall not be entitled to
receive dividends in any fixed amount; PROVIDED, HOWEVER, no dividend
or other distribution shall accrue or be paid with respect to any
shares of capital stock of the Corporation for any period, whether
before or after the effective date of this Certificate, unless and
until declared by the Board of Directors of the Corporation (the
"Board"). In the event any dividend or distribution is declared or made
with respect to outstanding shares of Common Stock, a comparable
dividend or distribution shall be simultaneously declared or made with
respect to the outstanding shares of Series A Preferred (on an as-if
converted to Common Stock basis including fractional shares). Dividends
on shares of capital stock of the Corporation shall be payable only out
of funds legally available therefor.
4. LIQUIDATION RIGHTS.
4.1 NO PREFERENCE OF SERIES A PREFERRED. In the event of any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the assets of the
Corporation available for distribution to its stockholders,
whether such assets are capital, surplus, or earnings, shall
be distributed equally, on a per share basis, among the
holders of the Common Stock and the Series A Preferred (on an
as-if converted to Common Stock basis including fractional
shares).
4.2 REORGANIZATION; SALE OF ASSETS. The merger, acquisition or
consolidation of the Corporation into or with any other entity
or entities which results in the exchange of outstanding
shares of the Corporation for securities or other
consideration issued or paid or caused to be issued or paid by
any such entity or affiliate thereof pursuant to which the
stockholders of the Corporation immediately prior to the
transaction do not own a majority of the outstanding shares of
the surviving corporation immediately after the transaction,
or any sale, lease, license (on an exclusive basis) or
transfer by the Corporation of all or substantially all its
assets, shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of the
provisions of this Section 4.
4.3 DETERMINATION OF CONSIDERATION. To the extent any distribution
pursuant to Section 4.1 consists of property other than cash,
the value thereof shall, for purposes of Section 4.1, be the
fair value at the time of such distributions as determined in
good faith by the Board.
5. CONVERSION. The holders of the Series A shall have the following
conversion rights (the "Conversion Rights"):
5.1 OPTIONAL CONVERSION OF THE SERIES A PREFERRED. At any time
after the Certificate of Incorporation of the Corporation has
been amended to increase the authorized shares of Common Stock
to such number as is necessary to allow the Corporation to
issue such number of shares of Common Stock as are issuable
2
<PAGE> 3
upon the conversion of the Series A Preferred in accordance
with the terms of this Article 5, the Series A Preferred shall
be convertible, without the payment of any additional
consideration by the holder thereof and at the option of the
holder thereof, at any time after the first issuance of shares
of Series A Preferred by the Corporation, at the office of the
Corporation or any transfer agent for the Common Stock, into
such number of fully paid and nonassessable shares of Common
Stock as is determined by dividing $16.80 by the Conversion
Price, determined as hereinafter provided, in effect at the
time of conversion and then multiplying such quotient by each
share of Series A Preferred to be converted. The Conversion
Price at which shares of Common Stock shall be deliverable
upon conversion without the payment of any additional
consideration by the holder thereof (the "Conversion Price")
shall at the time of the filing of this Certificate initially
be $.084 in the case of the Series A Preferred (such initial
Conversion Price results in each shares of Series A Preferred
being initially convertible into 200 shares of Common Stock).
Such initial Conversion Price shall be subject to adjustment,
in order to adjust the number of shares of Common Stock into
which the Series A Preferred is convertible, as hereinafter
provided.
5.2 FRACTIONAL SHARES. No fractional shares of Common Stock shall
be issued upon conversion of the Series A Preferred. In lieu
of any fractional share to which any holder would otherwise be
entitled upon conversion of the Series A Preferred owned by
such holder, the Corporation shall pay cash equal to such
fraction multiplied by the then effective Conversion Price or
round up to the nearest whole share.
5.3 MECHANICS OF OPTIONAL CONVERSION. Before any holder of Series
A Preferred shall be entitled to convert the same into full
shares of Common Stock such holder shall surrender the
certificate or certificates therefor, endorsed or accompanied
by a written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the
registered holder or by such holder's attorney duly authorized
in writing, at the office of the Corporation or of any
transfer agent for the Common Stock, and shall give written
notice to the Corporation at such office that such holder
elects to convert the same and shall state therein such
holder's name or the name of the nominees in which such holder
wishes the certificate or certificates for shares of Common
Stock to be issued. The Corporation shall, as soon as
practicable thereafter, issue and deliver at such office to
such holder of Series A Preferred, or to such holder's nominee
or nominees, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled
as aforesaid, together with cash in lieu of any fraction of a
share of Common Stock. 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 A Preferred to
be converted, and the person or persons entitled to receive
the shares of Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of
such shares of Common Stock on such date. From and after such
3
<PAGE> 4
date, all rights of the holder with respect to the Series A
Preferred so converted shall terminate, except only the right
of such holder, upon the surrender of his, her or its
certificate or certificates therefor, to receive certificates
for the number of shares of Common Stock issuable upon
conversion thereof and cash for fractional shares.
5.4 CERTAIN ADJUSTMENTS TO CONVERSION PRICE FOR STOCK SPLITS,
DIVIDENDS, MERGERS, REORGANIZATIONS, ETC.
(a) ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS AND
COMBINATIONS OF COMMON STOCK. In the event the
outstanding shares of Common Stock shall, after the
filing of this Certificate be further subdivided
(split), or combined (reverse split), by
reclassification or otherwise, or in the event of any
dividend or other distribution payable on the Common
Stock in shares of Common Stock, the applicable
Conversion Price in effect immediately prior to such
subdivision, combination, dividend or other
distribution shall, concurrently with the
effectiveness of such subdivision, combination,
dividend or other distribution, be proportionately
adjusted on the basis that the holders of Series A
Preferred will receive upon conversion, after each
such event, a number of shares of Common Stock equal
to the number that the holder would hold immediately
after such event if the holder had converted all
Series A Preferred to shares of Common Stock
immediately prior to each such event..
(b) ADJUSTMENT FOR MERGER OR REORGANIZATION, ETC. In the
event of a reclassification, reorganization or
exchange (other than described in subsection 5.4.a.
above) or any consolidation or merger of the
Corporation with another Corporation (other than a
merger, acquisition or other reorganization as
described in Section 4.2, which shall be considered a
liquidation pursuant to Section 4 above), each share
of Series A Preferred shall thereafter be convertible
into the number of shares of stock or other
securities or property to which a holder of the
number of shares of Common Stock of the Corporation
deliverable upon conversion of the Series A Preferred
would have been entitled upon such reclassification,
reorganization, exchange, consolidation, merger or
conveyance had the conversion occurred immediately
prior to the event; and, in any such case,
appropriate adjustment (as determined by the Board)
shall be made in the application of the provisions
herein set forth with respect to the rights and
interests thereafter of the holders of the Series A
Preferred, to the end that the provisions set forth
herein (including provisions with respect to changes
in and other adjustments of the applicable Conversion
Price) shall thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the
conversion of the Series A Preferred.
(c) ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. In
the event the Corporation, at any time or from time
to time after the filing of this Certificate, makes,
or fixes a record date for the determination of
holders of Common Stock entitled to receive, a
dividend or other distribution payable in securities
of the Corporation other than shares of Common Stock,
4
<PAGE> 5
then and in each such event, provision shall be made
so that the holders of Series A Preferred shall
receive upon conversion thereof, in addition to the
number of shares of Common Stock receivable
thereupon, the amount of securities of the
Corporation which they would have received had their
Series A Preferred been converted into Common Stock
on the date of such event and had they thereafter,
during the period from the date of such event to and
including the conversion date, retained such
securities receivable by them as aforesaid during
such period, subject to all other adjustments called
for during such period under this Section 5.4 with
respect to the rights or the holders of the Series A
Preferred.
5.5 NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record of the holders of any class of
securities for the purpose of determining the holders thereof
who are entitled to receive any dividend (other than a cash
dividend which is the same as cash dividends paid in previous
quarters) or other distribution, any capital reorganization of
the Corporation, any reclassification or recapitalization of
the Corporation's capital stock, any consolidation or merger
with or into another Corporation, any transfer of all or
substantially all of the assets of the Corporation or any
dissolution, liquidation or winding up of the Corporation, the
Corporation shall mail to each holder of Series A Preferred at
least ten (10) days prior to the date specified for the taking
of a record, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend or
distribution.
6. STATUS OF PREFERRED STOCK UPON RETIREMENT. Shares of Series A Preferred
which are acquired or redeemed by the Corporation or converted pursuant
to Section 5 shall be retired pursuant to Delaware General Corporation
Law Section 243, or any successor provision, and returned to the status
of authorized but unissued shares of the Corporation's undesignated
preferred stock.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Designation of Rights and Preferences on behalf of the Corporation this 7th day
of November, 2000.
XBOX TECHNOLOGIES, INC.
------------------------------------
By: Bart Budman
Its: Interim Chief Financial Officer
5
