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EXHIBIT 3.1(B) SPECIMEN OF SERIES B 10% CUMULATIVE CONVERTIBLE PREFERRED STOCK
EXHIBIT A
TO
STATEMENT PURSUANT TO A.R.S. SECTION 10-602
OF
PROLOGIC MANAGEMENT SYSTEMS, INC.
The following is the text of the resolution adopted by the Board of
Directors of Prologic Management Systems, Inc. (the "Corporation") at a meeting
of the Board of Directors on March 27, 1998:
RESOLVED, that the following is the statement of the designations,
powers, privileges, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or actions relating to the
Series B 10% Cumulative Convertible Preferred Stock (the "Preferred Stock"):
1. DESIGNATION AND AMOUNT. The series of Preferred Stock of the
Corporation designated as "Series B 10% Cumulative Convertible Preferred Stock"
shall be 100,000 shares.
2. DIVIDEND RATE. The holders of outstanding shares of the
Preferred Stock shall be entitled to receive out of funds legally available
therefore cash dividends accruing at the rate of 10% per annum (on the basis of
a 360-day year) on the Stated Value (defined herein) per share of the Preferred
Stock ("Dividends"). The right to receive Dividends on the Preferred Stock shall
be cumulative. Dividends shall be payable, to the extent of funds legally
available therefore, on each April 30 and October 31, beginning on October 31,
1998 or when otherwise determined by the Board of directors (each, a "Dividend
Payment Date"), to holders of record on the date that is 15 days preceding the
appropriate Dividend Payment Date. Such dividends shall be payable in preference
and priority to any payment of any dividend on Common Stock of the Corporation.
No interest or other charge shall accrue with respect to accumulated by unpaid
dividends on the Preferred Stock. No dividend shall be paid on the Common Stock
in any year, other than dividends payable solely in Common Stock, until all
Dividends for such year have been declared and paid on the Preferred Stock. In
the event that the Board of Directors shall have declared and paid, or set apart
for payment, all dividends on the Preferred Stock at the rates specified in this
section in any one fiscal year, and shall elect to declare additional dividends
in that fiscal year out of funds legally available therefor, such additional
dividends shall be declared and paid on the Common Stock, in an amount equal to
the dividends paid on such number of shares of Common Stock into which such
share of Preferred Stock, on the record date for such dividend payment, is
convertible. At the Corporation's sole discretion, the Corporation may elect to
pay any or all Dividends by issuing, in lieu of cash, shares of Common Stock.
The number of shares of Common Stock shall equal the total undeclared and
accrued Dividends multiplied by 85% of the lower of (i) the Applicable
Conversion Value (determined on the date that is 15 days before the relevant
Dividend Payment Date), as adjusted pursuant to Section 5, or (ii) the average
of the closing "bid" and "asked" price of the Common Stock on the Nasdaq Stock
market during the twenty trading days preceding the relevant Dividend Payment
Date (or, if the Common Stock is not then quoted on the Nasdaq stock Market, the
closing prices on such other market on which the Common Stock is then traded or,
if not traded, as the Board of Directors of the Corporation may reasonably
determine).
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3. LIQUIDATION, DISSOLUTION OR WINDING UP.
(d) PREFERENCE - CONVERTIBLE PREFERRED STOCK. In the
event of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, holders of each share of Preferred Stock shall be
entitled to be paid out of the assets of the Corporation legally available for
such distribution, before any sums shall be paid or any assets distributed among
the holders of shares of Common Stock, an amount equal to $10.00 per share of
Preferred Stock (the "Stated Value") plus the accrued but unpaid Dividends
thereon, up to and including the date of full payment. If the assets of the
Corporation shall be insufficient to permit the payment in full to the holders
of the Preferred Stock of the amount thus distributable, then the entire assets
of the Corporation legally available for such distribution shall be distributed
ratably among the holders of the Preferred Stock and any other class or series
of preferred stock of the Corporation outstanding on the distribution date.
After such payment shall have been made in full to the holders of the Preferred
Stock or funds necessary for such payment shall have been set aside by the
Corporation in trust for the account of holders of the Preferred Stock so as to
be available for such payment, holders of the Preferred Stock shall be entitled
to no further participation in the distribution of the assets of the Corporation
and shall have no further rights of conversion, and the remaining assets
available for distribution shall be distributed ratably among the holders of the
Common Stock.
(e) A consolidation or merger (other than a consolidation
or merger in which the holders of voting securities of the Corporation
immediately before the consolidation or merger own (immediately after the
consolidation or merger) voting securities of the surviving or acquiring
corporation, or of a parent party of such surviving or acquiring corporation,
possessing more than 50% of the voting power of such surviving or acquiring
corporation or parent party) of the Corporation or a sale of all or
substantially all of the assets of the Corporation shall be regarded as a
liquidation, dissolution or winding up of the affairs of the Corporation within
the meaning of this Section 3.
(f) Whenever the distribution provided for herein shall
be paid in property other than cash, the value of such distribution shall be the
fair market value of such property as determined in good faith by the Board of
Directors of the Corporation.
4. VOTING POWER. Except as otherwise expressly provided in
Section 9 hereof, or as required by law, no holder of Preferred Stock shall be
entitled to vote on any matters submitted to a vote of the shareholders of the
Corporation.
5. CONVERSION RIGHTS. The holders of Preferred Stock shall have
the following conversion rights:
(a) GENERAL. Subject to and in compliance with the
provisions of this Section 5, any shares of Preferred Stock may, at the option
of the holder, be converted into fully-paid and nonassessable shares (calculated
as to each conversion to the largest whole share) of Common Stock. The number of
shares of Common Stock to which a holder of Preferred Stock shall be entitled
upon conversion of each share of Preferred Stock shall be the product obtained
by multiplying the Applicable Conversion Rate (determined as provided in Section
5(b)) by the number of shares of Preferred Stock being converted.
(b) APPLICABLE CONVERSION RATE. The conversion rate in
effect at any time (the "Applicable Conversion Rate") shall be the quotient
obtained by dividing $10.00 by the Applicable Conversion Value, calculated as
provided in Section 5(c).
(c) APPLICABLE CONVERSION VALUE. The Applicable
Conversion Value in effect from time to time, except as adjusted in accordance
with Section 5(d) hereof, shall be $3.75.
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(d) ADJUSTMENTS TO APPLICABLE CONVERSION VALUE. In the
event that (i) between March 31, 1998 and December 31, 1999, the Corporation
shall issue any class or series of its preferred stock having a conversion price
lower than $3.75 per share of Common Stock, then the Applicable Conversion Value
shall, upon such issuance, be adjusted downward to an amount equal to such lower
conversion price of each such issuance, and (ii) on or before December 31, 1999,
the Preferred Stock has not been redeemed and the redemption price paid in full
and the Corporation has not raised at least $1.5 million from the sale of its
equity securities, excluding this Series B Preferred Stock, from the period
March 31, 1998 through December 31, 1999, the Applicable Conversion Value shall
be fifty percent (50%) of the average of the closing "bid" and "asked" price of
the Common Stock on the Nasdaq Stock Market during the month of December 1999
(or, if the Common Stock is not then quoted on the Nasdaq Stock Market, the
closing prices on such other market on which the Common Stock is then quoted).
(e) DIVIDENDS. In the event the Corporation shall make or
issue, or fix 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 of Common Stock or in assets (excluding cash
dividends or distributions), then and in each such event provision shall be made
so that the holders of the Preferred Stock shall receive upon conversion thereof
in addition to the number of shares of Common Stock receivable thereupon, the
number of securities or such other assets of the Corporation which they would
have received had their Preferred Stock 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 (as that term is hereafter
defined in Section 5(h)), retained such securities or such other assets
receivable by them as aforesaid during such period, giving application to all
adjustments called for during such period under this Section 5 with respect to
the rights of the holders of the Preferred Stock.
(f) RECAPITALIZATION OR RECLASSIFICATION. If the Common
Stock issuable upon the conversion of the Preferred Stock shall be changed into
the same or different number of shares of any class or classes of stock of the
Corporation, whether by recapitalization, reclassification or otherwise (other
than a subdivision or combination of or stock dividend provided for elsewhere in
this Section 5, or a reorganization, merger, consolidation or sale of assets
provided for elsewhere in this Section 5), then and in each such event the
holder of each share of Preferred Stock shall have the right thereafter to
convert such share into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification or
other change by holders of the number of shares of Common Stock into which such
share of Preferred Stock might have been converted (taking into account all
declared but unpaid Dividends with respect to such Preferred Stock) immediately
prior to such reorganization, reclassification or change, all subject to further
adjustment as provided herein.
(g) CERTIFICATE AS TO ADJUSTMENTS. In each case of an
adjustment or readjustment of the Applicable Conversion Rate, the Corporation
will furnish each holder of Preferred Stock with a certificate, executed by an
executive officer of the Corporation showing such adjustment or readjustment,
and stating in detail the facts upon which such adjustment or readjustment is
based.
(h) EXERCISE OF CONVERSION PRIVILEGE. To exercise its
conversion privilege, a holder of Preferred Stock shall surrender the
certificate or certificates representing the shares being converted to the
Corporation at its principal office, and shall give written notice to the
Corporation at that office that such holder elects to convert such shares. Such
notice shall also state the name or names (with address or addresses) in which
the certificate or certificates for shares of Common Stock issuable upon such
conversion shall be issued. The certificate or certificates for shares of
Preferred Stock surrendered for conversion shall be accompanied by proper
assignment thereof to the Corporation or in blank. The date when such written
notice is received by the
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Corporation, together with the certificate or certificates representing the
shares of Preferred Stock being converted, shall be the "Conversion Date." As,
promptly as practicable, but in any event within 30 days after the Conversion
Date, the Corporation shall issue and shall deliver to the holder of the shares
of Preferred Stock being converted, or on its written order, such certificate or
certificates as it may request for the number of whole shares of Common Stock
issuable upon the conversion of such shares of Preferred Stock in accordance
with the provisions of this Section 5, and cash, as provided in Section 5(i), in
respect of any fraction of a share of Common Stock issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the Conversion Date, and at such time the
rights of the holder as holder of the converted shares of Preferred Stock shall
cease and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares of
Common Stock represented thereby.
(i) CASH IN LIEU OF FRACTIONAL SHARES. No fractional
shares of Common Stock or scrip representing fractional shall be issued upon the
conversion of shares of Preferred Stock. Instead of any fractional of Common
Stock which would otherwise be issuable upon conversion of Preferred Stock, the
Corporation shall pay to the holder of the shares of Preferred Stock which were
converted a cash adjustment in respect of such fractional shares in an amount
equal to the same fraction of the market price per share of the Common Stock (as
determined in a reasonable manner prescribed by the Board of Directors) at the
close of business on the Conversion Date. The determination as to whether or not
any fractional shares are issuable shall be based upon the total number of
shares of Preferred Stock being converted at any one time by any holder thereof,
not upon each share of Preferred Stock being converted.
(j) PARTIAL CONVERSION. In the event some but not all of
the shares of Preferred Stock represented by a certificate or certificates
surrendered by a holder are converted, the Corporation shall execute and deliver
to or on the order of the holder, at the expense of the Corporation, a new
certificate representing the number of shares of Preferred Stock which were not
converted.
(k) RESERVATION OF COMMON STOCK. 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 effecting the conversion of the
shares of the Preferred Stock, such number of its shares of Common Stock as
shall time to time be sufficient to effect the conversion of all outstanding
shares of the Preferred Stock, and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of all then outstanding shares of the Preferred Stock, the Corporation shall use
its best efforts to cause such corporate action to be taken as may be necessary
to increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
6. REDEMPTION. The Corporation shall have the right to redeem the
Preferred Stock or any portion thereof at a redemption price per share of
Preferred Stock equal to the Stated Value plus all undeclared and accrued
Dividends thereon. The Corporation shall give holders of the Preferred Stock at
least 20 days notice of the Corporation's election to redeem the Preferred
Stock, and such notice shall specify the redemption date ("Redemption Date").
Any shares of Preferred Stock which shall not have been converted to shares of
Common Stock as provided elsewhere herein on the day preceding the Redemption
Date shall be deemed redeemed for all purposes, and the holder shall thereafter
be entitled to receive only the redemption price per share specified herein.
7. NO REISSUANCE OF THE SERIES B 10% CUMULATIVE CONVERTIBLE
PREFERRED STOCK. No share or shares of the Series 10% Cumulative Convertible
Preferred Stock acquired by the Corporation by reason of redemption, purchase,
conversion or otherwise shall be reissued. The Corporation may from time to time
take such appropriate corporate action as may be necessary to reduce the
authorized number of shares of the Series 10% Cumulative Convertible Preferred
Stock, and such shares shall thereafter be authorized but unissued shares
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of the Corporation's preferred stock which thereafter may be issued with such
designations, powers, privileges, preferences and rights as the Board of
Directors by resolution may determine.
8. RESTRICTIONS AND LIMITATIONS.
Except as expressly provided herein or as required by law, so long as
any of the shares of Preferred Stock authorized remain outstanding, the
Corporation shall not, without the vote or written consent by the holders of at
least 60% of the then outstanding shares of Preferred Stock, each share of
Preferred Stock to be entitled to one vote in each instance:
(i) Redeem, purchase or otherwise acquire for value
(or pay into or set aside for a sinking fund for such purpose), any share or
shares of the Corporation (except shares of the Corporation's Series A 8%
Cumulative Convertible Preferred stock and those shares repurchased from
officers, directors, employees, consultants or other shareholders of the
Corporation under agreements requiring such persons to offer to sell such to the
Corporation in certain events);
(ii) Authorize or issue, or obligate itself to
authorize or issue, any other equity security senior to the Preferred Stock as
to liquidation preferences; or
(iii) Amend its Articles of Incorporation to alter or
change the rights, preferences or privileges of the Preferred Stock; provided
that no such amendment shall alter or change (i) the ability of a holder to
convert the Preferred Stock into Common Stock, or (ii) the Applicable Conversion
Rate therefor subject to the provisions of Section 5 as in effect on the date of
authorization of the Preferred Stock pursuant to these Articles of
Incorporation, without the consent of each holder of the Preferred Stock
affected thereby.
9. NO DILUTION OR IMPAIRMENT. The Corporation will not, by
amendment of its Articles 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 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 the Preferred Stock against dilution or
other impairment.
10. NOTICES OF RECORD DATE. In the event of:
(a) 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 or other distribution, or to
receive any other right, or
(b) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the Corporation,
any merger or consolidation of the Corporation, or any transfer of all or
substantially all of the assets of the Corporation to any other corporation, or
any other entity or person, or
(c) any voluntary or involuntary dissolution, liquidation
or winding up of the Corporation, then and in each such event the Corporation
shall mail or cause to be mailed to each holder of Preferred Stock a notice
specifying (i) the date on which any such record is to be taken for the purpose
of such dividend, distribution or right and a description of such dividend,
distribution or right, (ii) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding up is expected to become effective, and
(iii) the time, if any, that is to be fixed, as to when the holders of record of
Common Stock (or other securities) shall be entitled to exchange their shares of
Common Stock (or other securities) for
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securities or other property deliverable upon such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding up. Such notice shall be mailed at least 20
days prior to the date specified in such notice on which such dividend,
distribution or right or such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, liquidation or winding up is
to be taken.
