EXHIBIT A
CERTIFICATE OF DESIGNATIONS
CAMBEX CORPORATION
RESTATED ARTICLES OF ORGANIZATION
ARTICLE 4
Rights, Preferences, Privileges and Restrictions of Series B Preferred Stock:
The rights, preferences, privileges and restrictions granted to and imposed
on the Series B Preferred Stock and the Common Stock are as follows:
1. Definitions. For purposes of this Article 4, the following definitions
apply:
1.1 "Board" shall mean the Board of Directors of the Corporation.
1.2 "Corporation" shall mean this corporation.
1.3 "Common Stock" shall mean the Common Stock, $.10 par value per share,
of the Corporation.
1.4 "Common Stock Dividend" shall mean a stock dividend declared and paid
on the Common Stock that is payable in shares of Common Stock.
1.5 "Distribution" shall mean the transfer of cash or property by the
Corporation to one or more of its stockholders without consideration, whether
by dividend or otherwise (except a dividend in shares of Corporation's
stock). A Permitted Repurchase (defined below) is not a Distribution.
1.6 "Original Issue Date" shall mean the date on which the first share of
Series B Preferred Stock is issued by the Corporation.
1.7 "Original Issue Price" shall mean $17.10 per share for the Series B
Preferred Stock (as adjusted for any stock splits, stock dividends,
recapitalizations or the like, with respect to the Series B Preferred Stock).
1.8 "Permitted Repurchases" shall mean the repurchase by the Corporation of
shares of Common Stock held by employees, officers, directors, consultants,
independent contractors, advisors, or other persons performing services for
the Corporation or a subsidiary that are subject to restricted stock purchase
agreements or stock option exercise agreements under which the Corporation
has the option to repurchase such shares: (i) at cost, upon the occurrence of
certain events, such as the termination of employment or services; or (ii) at
any price pursuant to the Corporation's exercise of a right of first refusal
to repurchase such shares.
1.9 "Series B Preferred Stock" shall mean the Series B Preferred Stock,
$1.00 par value per share, of the Corporation.
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1.10 "Subsidiary" shall mean any corporation of which at least fifty percent
(50%) of the outstanding voting stock is at the time owned directly or
indirectly by the Corporation or by one or more of such subsidiary
corporations.
2. Dividend Rights.
2.1 Series B Preferred Stock. In each calendar year, the holders of the
then outstanding shares of Series B Preferred Stock shall be entitled to
receive, cumulative, non-compounding cash dividends, out of funds legally
available therefor, at the annual simple rate of twelve percent (12%) on the
Original Issue Price for each share of Series B Preferred Stock from the
Original Issue Date for such share, which dividends shall accrue whether or
not declared by the Board of Directors of the Corporation, but which shall be
payable only (i) when, as and if declared by the Board of Directors of the
Corporation, (ii) upon an Optional Conversion (as defined in Section 5
below), (iii) upon a Liquidation Event (as defined in Section 3 below) or
(iv) upon Redemption of the Series B Preferred Stock (as described in Section
6 below). Notwithstanding this Section 2.1, upon the occurrence of an
Optional Conversion, the Corporation may pay any accrued or declared but
unpaid dividends on the converted Series B Preferred Stock, in shares of
Common Stock rather than cash. The number of shares of Common Stock that may
be issued by the Corporation upon an Optional Conversion, shall be equal to
the sum of all declared or accrued but unpaid dividends of the Series B
Preferred Stock then converted, divided by the then applicable Conversion
Price (as defined in Section 5 below). No dividends (other than a Common
Stock Dividend) shall be paid, and no Distribution shall be made, with
respect to the Common Stock during any calendar year unless dividends for the
Series B Preferred Stock shall have first been paid or declared and set apart
for payment to the holders of the Series B Preferred Stock during that
calendar year; provided, however, that this restriction shall not apply to
Permitted Repurchases.
2.2 No Participation Rights. If, after dividends in the full preferential
amounts specified in this Section 2 for the Series B Preferred Stock have
been paid or declared and set apart in any calendar year of the Corporation,
the Board shall declare additional dividends out of funds legally available
therefor in that calendar year, then such additional dividends shall be
declared solely on the Common Stock.
3. Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary (a
"Liquidation Event"), the funds and assets that may be legally distributed to
the Corporation's stockholders (the "Available Funds and Assets") shall be
distributed to stockholders in the following manner:
3.1 Series B Preferred Stock. The holders of each share of Series B
Preferred Stock then outstanding shall be entitled to be paid, out of
the Available Funds and Assets, and prior and in preference to any
payment or distribution (or any setting apart of any payment or
distribution) of any Available Funds and Assets on any shares of Common
Stock, an amount per share equal to the Original Issue Price of the
Series B Preferred Stock plus any dividends accrued or declared but
unpaid thereon. If upon a Liquidation Event the Available Funds and
Assets shall be insufficient to permit the payment to holders of the
Series B Preferred Stock of their full preferential amount described in
this subsection, then the entire Available Funds and Assets shall be
distributed among the holders of the then outstanding Series B
Preferred Stock pro rata,
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according to the number of outstanding shares of Series B Preferred Stock
held by each holder thereof.
3.2 Remaining Assets. If there are any Available Funds and Assets
remaining after the payment or distribution (or the setting aside for payment
or distribution) to the holders of the Series B Preferred Stock of their full
preferential amounts described above in this Section 3, then all such
remaining Available Funds and Assets shall be distributed among the holders
of the then outstanding Common Stock pro rata according to the number of
shares of Common Stock held by each holder thereof.
3.3 Merger or Sale of Assets. Any (i) reorganization, consolidation or
merger (or similar transaction or series of transactions) of the Corporation
with or into any other corporation or corporations in which the holders of
the Corporation's outstanding shares immediately before such transaction or
series of related transactions do not, immediately after such transaction or
series of related transactions, retain stock representing a majority of the
voting power of the surviving corporation (or its parent corporation if the
surviving corporation is wholly owned by the parent corporation) of such
transaction or series of related transactions; or (ii) a sale of all or
substantially all of the assets of the Corporation, shall each be deemed to
be a liquidation, dissolution or winding up of the Corporation as those terms
are used in this Section 3.
3.4 Non-Cash Consideration. If any assets of the Corporation distributed
to shareholders in connection with a Liquidation Event are other than cash,
then the value of such assets shall be their fair market value as determined
by the Board of Directors in good faith, except that any securities to be
distributed to stockholders in a liquidation, dissolution, or winding up of
the Corporation shall be valued as follows:
(a) The method of valuation of securities not subject to investment letter
or other similar restrictions on free marketability shall be deemed to be the
average of the closing bid prices over the 30 calendar day period ending
three (3) trading days prior to the distribution; and,
(b) The method of valuation of securities subject to investment letter or
other restrictions on free marketability shall be to make an appropriate
discount from the market value determined above of this subsection to reflect
the approximate fair market value thereof, as determined in good faith by the
Board of Directors.
4. Voting Rights.
4.1 Common Stock. Each holder of shares of Common Stock shall be entitled
to one (1) vote for each share thereof held.
4.2 Series B Preferred Stock. Each holder of shares of Series B Preferred
Stock shall not be entitled to any voting rights for any shares of Series B
Preferred Stock thereof held.
5. Conversion Rights. The outstanding shares of Series B Preferred Stock
shall be convertible into Common Stock as follows:
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5.1 Optional Conversion.
(a) At the option of the holder thereof, each share of Series B Preferred
Stock shall be convertible, at any time or from time to time prior to the
close of business on the business day before any date fixed for redemption of
such share, into fully paid and nonassessable shares of Common Stock as
provided herein (an "Optional Conversion").
(b) Each holder of Series B Preferred Stock who elects to convert the same
into shares of Common Stock shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or any transfer
agent for the Series B Preferred Stock or 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 the number of shares of Series B
Preferred Stock being converted. Thereupon the Corporation shall promptly
issue and deliver at such office to such holder a certificate or certificates
for the number of shares of Common Stock to which such holder is entitled
upon such conversion. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of
the certificate or certificates representing the shares of Series B Preferred
Stock to be converted, and the person entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all purposes
as the record holder of such shares of Common Stock on such date.
(c) If the Corporation shall fail to issue to holder within ten (10)
business days following the date of receipt by the Company of the Series B
Preferred Stock and written notice to convert the same, a certificate for the
number of shares of Common Stock to which each holder is entitled upon
holder's conversion of the Series B Preferred Stock, in addition to all other
available remedies which such holder may pursue hereunder and under the
Securities Exchange Agreement between the Corporation and the holder of the
Series B Preferred Stock, the Corporation shall pay additional damages to
holder on each day after the tenth (10th) business day following the date of
receipt by the Corporation an amount equal to 1.0% of the product of (A) the
number of shares of Common Stock not issued to holder and to which holder is
entitled multiplied by (B) the closing bid price of the Common Stock on the
business day following the date of receipt by the Corporation of the written
notice to convert. The foregoing notwithstanding, holder at its option may
withdraw a notice of conversion, and remain a holder of the Series B
Preferred Stock, if holder has otherwise complied with this Section 5.1(c).
5.2 Conversion Price. Each share of Series B Preferred Stock shall be
convertible in accordance with subsection 5.1 above into the number of shares
of Common Stock which results from dividing the Original Issue Price and if
the Company so elects, plus any accrued or declared, but unpaid dividends
outstanding at such time of Conversion, by the conversion price for such
series of Series B Preferred Stock that is in effect at the time of
conversion (the "Conversion Price"). The initial Conversion Price for the
Series B Preferred Stock shall be $1.65. The Conversion Price of the Series
B Preferred Stock shall be subject to adjustment from time to time as
provided below. Following each adjustment of the Conversion Price, such
adjusted Conversion Price shall remain in effect until a further adjustment
of such Conversion Price hereunder.
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5.3 Adjustment Upon Common Stock Event. Upon the happening of a Common
Stock Event (as hereinafter defined), the Conversion Price of the Series B
Preferred Stock shall, simultaneously with the happening of such Common Stock
Event, be adjusted by multiplying the Conversion Price of the Series B
Preferred Stock in effect immediately prior to such Common Stock Event by a
fraction, (i) the numerator of which shall be the number of shares of Common
Stock issued and outstanding immediately prior to such Common Stock Event,
and (ii) the denominator of which shall be the number of shares of Common
Stock issued and outstanding immediately after such Common Stock Event, and
the product so obtained shall thereafter be the Conversion Price for the
Series B Preferred Stock. The Conversion Price for the Series B Preferred
Stock shall be readjusted in the same manner upon the happening of each
subsequent Common Stock Event. As used herein, the term the "Common Stock
Event" shall mean at any time or from time to time after the Original Issue
Date, (i) the issue by the Corporation of additional shares of Common Stock
as a dividend or other distribution on outstanding Common Stock, (ii) a
subdivision of the outstanding shares of Common Stock into a greater number
of shares of Common Stock, or (iii) a combination of the outstanding shares
of Common Stock into a smaller number of shares of Common Stock; provided
that there is no corresponding dividend, distribution, subdivision or
combination of the Series B Preferred Stock.
5.4 Adjustments to Respective Conversion Prices for Certain Diluting
Issues.
1. Special Definitions. For purposes of this paragraph 5.4, the following
definitions apply:
a. "Options" shall mean rights, options or warrants to subscribe for,
purchase or otherwise acquire either Common Stock or Convertible Securities
(defined below).
b. "Original Issue Date" shall mean the date on which a share of Series B
Preferred Stock is first issued.
c. "Convertible Securities" shall mean any evidences of indebtedness,
shares (other than Common Stock or Series A or Series B Preferred Stock) or
other securities convertible into or exchangeable for Common Stock.
d. "Additional Shares of Common Stock" shall mean all shares of Common
Stock issued (or, pursuant to clause (3) of this paragraph 5.4 deemed to be
issued) by the Corporation after the Original Issue Date, other than shares
of Common Stock issued or issuable:
i. upon conversion of shares of Series A or Series B Preferred Stock;
ii. in exchange for, or on exercise or conversion of rights to acquire Common
Stock issued to officers, directors or employees of, or consultants to, the
Corporation or a subsidiary pursuant to stock option or stock purchase plans
or agreements on terms approved by the Board of Directors;
iii. as a dividend or distribution on the Series A or Series B Preferred
Stock; or
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iv. for which adjustment of the Conversion Price is made pursuant to
paragraphs 5.7 or 5.12 of this Section 5 or resulting from the adjustment in
the Conversion Price of the Series A preferred Stock.
2. No Adjustment of Conversion Price. Any provision herein to the contrary
notwithstanding, no adjustment in the Conversion Price shall be made in
respect of the issuance of Additional Shares of Common Stock unless (i) the
consideration per share (determined pursuant to clause (5) of this paragraph
5.4) for any such Additional Share of Common Stock is less than the
Conversion Price in effect on the date of, and immediately prior to, such
issuance and (ii) the number of Additional Shares of Common Stock issued is
more than twenty percent (20%) of the number of shares of Common Stock
outstanding as of the Original Issue Date calculated on a fully diluted basis
(as fully diluted is defined in clause (4) of this paragraph 5.4).
3. Deemed Issue of Additional Shares of Common Stock. In the event that the
Corporation, at any time or from time to time after the Original Issue Date,
shall issue any Options or Convertible Securities or shall fix a record date
for the determination of holders of any class of securities then entitled to
receive any such 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 designed to protect against dilution) of
Common Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion or exchange of
such Convertible Securities shall be deemed to be Additional Shares of Common
Stock issued as of the time of such issuance or, in case such a record date
shall have been fixed, as of the close of business on such record date,
provided further that in any such case in which Additional Shares of Common
Stock are deemed have been issued:
a. no further adjustments in the Conversion Price shall be made upon the
subsequent issuance of Convertible Securities or shares of Common Stock upon
the exercise of such Options or conversion or exchange of such Convertible
Securities;
b. if such Options or Convertible Securities by their terms provide, with the
passage of time or otherwise, for any increase in the consideration payable
to the Corporation, or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the Conversion
Price computed upon the original issuance thereof (or upon the occurrence of
a record date with respect thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease becoming effective, be
recomputed to reflect such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under such Convertible
Securities;
c. upon the expiration of any such options or rights, the termination of any
such rights to convert or exchange or the expiration of any options or rights
related to such convertible or exchangeable securities, the Conversion Price,
to the
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extent in any way affected by or computed using such options, rights or
securities, or options or rights related to such securities, shall be
recomputed to reflect the issuance of only the number of shares of Common
Stock (and convertible or exchangeable securities which remain in effect)
actually issued upon the exercise of such options or rights, upon the
conversion or exchange of such securities, or upon the exercise of the
options or rights related to such securities; and
d. no readjustment pursuant to the immediately preceding clauses (2) and (3)
shall have the effect of increasing the Conversion Price to an amount which
exceeds the lower of (a) the Conversion Price on the original adjustment
date, or (b) the Conversion Price that would have resulted from any issuance
of Additional Shares of Common Stock between the original adjustment date and
such readjustment date.
4. Adjustment of Conversion Price Upon Issuance of Additional Shares of
Common Stock. In the event that the Corporation shall issue any Additional
Shares of Common Stock (including Additional Shares of Common Stock deemed to
be issued pursuant to clause (3) of this paragraph 5.4) without consideration
or for a consideration per share less than the Conversion Price in effect on
the date of and immediately prior to such issuance, then and in such event,
the Conversion Price shall be reduced, concurrently with such issuance, to a
price (calculated to the nearest cent) determined by multiplying the
Conversion Price in effect immediately prior thereto, by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issuance plus the number of shares of Common Stock
which the aggregate consideration received by the Corporation for the total
number of Additional Shares of Common Stock so issued would purchase at the
Conversion Price in effect immediately prior to such issuance, and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance plus the number of such
Additional Shares of Common Stock so issued. For the purpose of the above
calculation, the number of shares of Common Stock outstanding immediately
prior to such issuance shall be calculated on a fully diluted basis, as if
all shares of Series A and Series B Preferred Stock and all Convertible
Securities had been fully converted into shares of Common Stock and any
outstanding warrants, options or other rights for the purchase of Common
Stock or convertible securities had been fully exercised (and the resulting
securities fully converted into shares of Common Stock, if so convertible) as
of such date.
5. Determination of Consideration. For purposes of this paragraph 5.4, the
consideration received by the Corporation for the issuance of any Additional
Shares of Common Stock shall be computed as follows:
a. Cash and Property: Such consideration shall:
1. insofar as it consists of cash, be deemed to be the aggregate gross amount
of cash received by the Corporation, net only of amounts paid or payable for
then
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accrued interest or accrued dividends with respect to such Additional Shares
of Common Stock;
2. insofar as it consists of property other than cash, be deemed to have the
same value as is recorded on the books of the Corporation at the time of such
issuance, so long as such recorded value was determined reasonably and in
good faith or shall otherwise be deemed to have a value equal to its fair
market value;
3. in the event that Additional Shares of Common Stock are issued together
with other shares or securities or other assets of the Corporation for
consideration which covers both, be the proportion of such consideration so
received, computed as provided in the immediately preceding clauses (1) and
(2).
b. Options and Convertible Securities. The consideration per share received
by the Corporation for Additional Shares of Common Stock deemed to have been
issued pursuant to clause (3) of this paragraph 5.4, relating to Options and
Convertible Securities shall be determined by dividing
1. the total amount, if any, received or receivable by the Corporation as
consideration for the issuance of such Options or Convertible Securities,
plus the minimum aggregate amount of additional consideration (as set forth
in the instruments relating thereto, without regard to any provision
contained therein designed to protect against dilution) payable to the
Corporation upon the exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities by
2. the maximum number of shares of Common Stock (as set forth in the
instruments relating thereto, without regard to any provision contained
therein designed to protect against the dilution) issuable upon the exercise
of such Options or conversion or exchange of such Convertible Securities.
5.5 Adjustments for Other Dividends and Distributions. If at any time or
from time to time after the Original Issue Date the Corporation pays a
dividend or makes another distribution to the holders of the Common Stock
payable in securities of the Corporation, other than an event constituting a
Common Stock Event, then in each such event provision shall be made so that
the holders of the Series B Preferred Stock shall receive upon conversion
thereof, in addition to the number of shares of Common Stock receivable upon
conversion thereof, the amount of securities of the Corporation which they
would have received had their Series B Preferred Stock been converted into
Common Stock on the date of such event (or such record date, as applicable)
and had they thereafter, during the period from the date of such event (or
such record date, as applicable) 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 with respect to the rights of the holders of the Series B Preferred
Stock or with respect to such other securities by their terms.
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5.6 Adjustment for Reclassification, Exchange and Substitution. If at any
time or from time to time after the Original Issue Date the Common Stock
issuable upon the conversion of the Series B Preferred Stock is changed into
the same or a different number of shares of any class or classes of stock,
whether by recapitalization, reclassification or otherwise (other than by a
Common Stock Event or a stock dividend, reorganization, merger, or
consolidation provided for elsewhere in this Section 5), then in any such
event each holder of Series B Preferred Stock shall have the right thereafter
to convert such stock into the kind and amount of stock [and other securities
and property receivable] upon such recapitalization, reclassification or
other change by holders of the number of shares of Common Stock into which
such shares of Series B Preferred Stock could have been converted immediately
prior to such recapitalization, reclassification or change, all subject to
further adjustment as provided herein or with respect to such other
securities or property by the terms thereof.
5.7 Reorganizations, Mergers and Consolidations. If at any time or from
time to time after the Original Issue Date there is a reorganization of the
Corporation (other than a recapitalization, subdivision, combination,
reclassification or exchange of shares provided for elsewhere in this Section
5) or a merger or consolidation of the Corporation with or into another
corporation (except an event which is governed under subsection 3.3), then,
as a part of such reorganization, merger or consolidation, provision shall be
made so that the holders of the Series B Preferred Stock thereafter shall be
entitled to receive, upon conversion of the Series B Preferred Stock, the
number of shares of stock or other securities or property of the Corporation,
or of such successor corporation resulting from such reorganization, merger
or consolidation, to which a holder of Common Stock deliverable upon
conversion would have been entitled on such reorganization, merger or
consolidation. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 5 with respect to the rights of
the holders of the Series B Preferred Stock after the reorganization, merger
or consolidation to the end that the provisions of this Section 5 (including
adjustment of the Conversion Price then in effect and number of shares
issuable upon conversion of the Series B Preferred Stock) shall be applicable
after that event and be as nearly equivalent to the provisions hereof as may
be practicable. This subsection 5.7 shall similarly apply to successive
reorganizations, mergers and consolidations. Notwithstanding anything to the
contrary contained in this Section 5, if any reorganization, merger or
consolidation is approved by the vote of stockholders as described in the
Articles of Organization, then such transaction and the rights of the holders
of Series B Preferred Stock and Common Stock pursuant to such reorganization,
merger or consolidation will be governed by the documents entered into in
connection with such transaction and not by the provisions of this Section
5.7.
5.8 Certificate of Adjustment. In each case of an adjustment or
readjustment of the Conversion Price for the Series B Preferred Stock, the
Corporation, at its expense, shall cause its Chief Financial Officer to
compute such adjustment or readjustment in accordance with the provisions
hereof and prepare a certificate showing such adjustment or readjustment, and
shall mail such certificate, by first class mail, postage prepaid, to each
registered holder of the Series B Preferred Stock at the holder's address as
shown in the Corporation's books.
5.9 Fractional Shares. No fractional shares of Common Stock shall be
issued upon any conversion of Series B Preferred Stock. In lieu of any
fractional share to which the holder would otherwise be entitled, the
Corporation shall pay the holder cash equal to the
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product of such fraction multiplied by the Common Stock's fair market value
as determined in good faith by the Board as of the date of conversion.
5.10 Reservation of Stock Issuable Upon Conversion. 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 Series B Preferred Stock, such number of its shares of
Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series B 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 Series B Preferred Stock, the Corporation will take such
corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
5.11 Notices. Any notice required by the provisions of these Articles of
Organization to be given to the holders of shares of the Series B Preferred
Stock shall be deemed given upon the earlier of actual receipt or deposit in
the United States mail, by certified or registered mail, return receipt
requested, postage prepaid, or delivery by a recognized express courier, fees
prepaid, addressed to each holder of record at the address of such holder
appearing on the books of the Corporation.
5.12 No Impairment. The Corporation shall not avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but shall at all times in good faith assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of the Series B
Preferred Stock against impairment.
5.13 Preemptive Rights. No stockholder of the Corporation shall have a
right to purchase shares of capital stock of the Corporation sold or issued
by the Corporation except to the extent that such a right may from time to
time be set forth in a written agreement between the Corporation and a
stockholder.
5.14 No Retroactive Adjustment of the Conversion Price. Any provision in
Section 5 to the contrary notwithstanding, no adjustment of the Conversion
Price shall affect Common Stock which may have been previously issued upon
conversion of the Series B Preferred Stock.
6. Redemption Rights
6.1 Redemption Rights. The Corporation may redeem any or all of the Series
B Preferred Stock from any holder at any time for an amount per share equal
to the Original Issue Price of the Series B Preferred Stock plus all accrued
or declared but unpaid dividends on the Series B Preferred Stock (the
"Redemption Price").
6.2 Redemption Notice. At least ten (10) days before a redemption by the
Corporation, the Corporation shall mail a notice of redemption to the
holder, stating (A) the redemption date, which shall be a business day
in New York, New York (the "Redemption Date"), (B) the aggregate number
of shares of the Series B Preferred Stock to be redeemed,
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(C) the Redemption Price, and (D) the name and address of the Person to whom
the Series B Preferred Stock must be presented. On or before the third (3rd)
day prior to the Redemption Date, the Company shall deposit into a bank trust
account for the benefit of the holder of the Series B Preferred Stock money
sufficient to pay the Redemption Price.
6.3 Reacquired Shares. Any shares of Series B Preferred Stock converted,
redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall, automatically and without further action, be retired and
canceled promptly after the acquisition thereof, and shall not be reissued
and the Corporation (without the need for stockholder action) from time to
time shall take such action as may be necessary to reduce the number of
authorized shares of the Series B Preferred Stock accordingly.
7. Protective Provisions. So long as any shares of Series B Preferred
Stock remain outstanding, the Corporation shall not, without the vote or
written consent by the holders of a majority of the then outstanding shares
of Series B Preferred Stock:
a. amend or repeal a provisions of, or add any provision to its charter or
bylaws if such action would alter or change the rights, preferences or
privileges of the Series B Preferred Stock so as to affect such series
adversely;
b. increase the authorized number of shares of such Series B Preferred Stock;
c. authorize or consummate a change of control ("Change of Control
Transaction"), including, without limitation, a sale of all or substantially
all of the Corporation's assets, a transaction (or series of transactions)
which results in the holders of the Corporation's capital stock prior to the
transaction owning less than 50% of the voting power of the Corporation's
capital stock after the transaction;
d. effect a liquidation, dissolution, recapitalization or reorganization;
e. authorize or issue any securities or reclassify any outstanding securities
into securities having a preference over or on parity with the Series B
Preferred Stock with the exception of the 108,957 SHARES OF THE Corporation's
Series A Preferred Stock TO BE ISSUED CONCURRENTLY WITH THE ISSUANCE OF THE
SERIES B PREFERRED STOCK;
f. increase the number of directors of the Corporation to a number greater
than seven;
g. approve or consummate any business acquisition in excess of $500,000 in
one or a series or related transactions or any debt financings (other than
equipment leases or similar financings) in excess of $500,000;
h. increase the number of shares of Common Stock reserved under the
Corporation's stock incentive plans above 4,000,000 shares (net of
repurchases and cancellations);
i. pay or declare any dividends or make any distributions on the
Corporation's common stock.
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