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Exhibit 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
EAGLETECH COMMUNICATIONS, INC.
EAGLETECH COMMUNICATIONS, INC. ("Corporation"), a corporation
organized and existing under and by virtue of Title 78 of Nevada Revised
Statutes ("NRS") hereby certifies as follows:
FIRST: The name of the Corporation is Eagletech
Communications, Inc. The Articles of Incorporation of the Corporation were
originally filed by the Corporation with the Secretary of State of Nevada on
August 8, 1997 and amended June 8, 1999.
SECOND: This Restated Certificate of Incorporation restates
and integrates and further amends the Articles of Incorporation of the
Corporation, was duly adopted in accordance with the provisions of Title 78 of
the Nevada Revised Statutes ("N.R.S."), and was approved by written consent of
the stockholders of the Corporation given in accordance with the provisions of
N.R.S. Section 78.320, prompt notice of such action having been given to those
stockholders who did not consent in writing.
THIRD: The text of the Articles of Incorporation of the
Corporation is hereby restated and amended to read in its entirety as follows:
ARTICLE I
Name
The name of the corporation is Eagletech Communications, Inc.
ARTICLE II
Purpose
The Corporation is organized to engage in any lawful act or
activity for which a corporation may be organized under Title 78 of the N.R.S.
ARTICLE III
Capital Stock
Authorization. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is 100,000,000,
consisting of: 90,000,000 shares of Common Stock, par value $.001 per share (the
"Common Stock") and 10,000,000 shares of Preferred Stock, par value $.01 per
share (the "Preferred Stock"). No shares of capital stock shall have any
preemptive rights or rights of cumulative voting. The Preferred Stock may be
issued in any number of series, including without limitation the Series A Stock
(as such term is
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defined in Section A.l) and any other series designated by the Board of
Directors of the Corporation (the "Board of Directors") pursuant to Part B,
Section l, and subject to Section 6(c) hereof.
PART A. SERIES A CONVERTIBLE PREFERRED STOCK
1 Designation and Amount. The designation of this series of
capital stock shall be "Series A Convertible Preferred Stock," par value $.01
per share (the "Series A Stock"). The number of shares, powers, terms,
conditions, designations, preferences and privileges, relative, participating,
optional and other special rights, and qualifications, limitations and
restrictions, if any, of the Series A Stock shall be as set forth herein. The
number of authorized shares of the Series A Stock is 1,000,000 shares.
2 Ranking. The Corporation's Series A Stock shall rank, as to
dividends and upon Liquidation (as defined in Section 4(b) hereof), equally with
each other and senior and prior to the Corporation's Common Stock and to all
other classes or series of stock issued by the Corporation, except as otherwise
approved by the affirmative vote or consent of the holders of shares of Series A
Stock pursuant to Section 6(c) hereof.
3 Dividend Provisions.
3(a) The holders of shares of Series A Stock shall be
entitled to receive, out of funds legally available for that purpose, dividends
and distributions (whether in cash, property or securities of the Corporation,
including subscription or other rights to acquire securities of the Corporation)
an annual dividend at a rate of ten percent (10%) of the Original Issue Price of
Series A Stock (the "Preferred Dividend"). Such Preferred Dividend shall be
cumulative and shall accrue on a quarterly basis from and after the Original
Issue Date (as defined in Section 9 hereof), whether or not declared and whether
or not there are any funds of the corporation legally available for the payment
of dividends. The Preferred Dividend shall be payable in Common Stock, valued at
the lower of the closing price (using the method for determining closing price
set forth in Sections 7(d)(vii)(A), (B), and (C)) at the time the dividend is
declared by the Corporation's Board or at the time the dividend is paid. Such
Preferred Dividend shall be declared and payable only in the event of a
liquidation, conversion, or redemption of the Series A Stock, as set forth in
Sections 4, 7, or 8, respectively.
3(b) Whenever any dividend may be declared or paid on
any shares of Series A Stock, the Board of Directors shall also declare and pay
a dividend on the same terms, at the same rate and in like kind upon each other
share of the Series A Stock then outstanding, so that all outstanding shares of
Series A Stock will participate equally with each other ratably per share
(calculated as provided in Section 3(c) hereof). Whenever any dividend, whether
in cash or property or in securities of the Corporation (or subscription or
other rights to purchase or acquire securities of the Corporation), may be
declared or paid on: (i) any shares of the Common Stock, the Board of Directors
shall also declare and pay a dividend on the same terms, at the same rate and in
like kind upon each share of the Series A Stock then outstanding so that all
outstanding shares of Series A Stock will participate in such dividend ratably
with such shares of Common
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Stock (calculated as provided in Section 3(c) hereof); or (ii) any shares of
Preferred Stock (other than the Series A Stock), the Board of Directors shall
also declare and pay a dividend on the same terms, at the same or equivalent
rate (based on the number of shares of Common Stock into which such Preferred
Stock is then convertible, if applicable, or, otherwise, the relative
liquidation preference per share, as compared with the Series A Stock then
outstanding).
3(c) In connection with any dividend declared or paid
hereunder, each share of Series A Stock shall be deemed to be that number of
shares (including fractional shares) of Common Stock into which it is then
convertible, rounded up to the nearest one-tenth of a share. No fractional
shares of capital stock shall be issued as a dividend hereunder. The Corporation
shall pay a cash adjustment for any such fractional interest in an amount equal
to the fair market value thereof on the last Business Day (as defined in Section
9 hereof) immediately preceding the date for payment of dividends, as determined
by the Board of Directors in good faith.
Section 4 Liquidation Rights.
4(a) With respect to rights on Liquidation (as
defined in Section 4(b) hereof), the Series A Stock shall rank equally with each
other and senior and prior to the Corporation's Common Stock and to all other
classes or series of stock issued by the Corporation, except as otherwise
approved by the affirmative vote or consent of the holders of at least a
majority of Series A Stock outstanding pursuant to Section 6(a) hereof.
4(b) In the event of any liquidation, dissolution or
winding-up of the affairs of the Corporation (collectively, a "Liquidation"),
the sole participation to which the holders of shares of Series A Stock then
outstanding (the "Series A Stockholders") shall be entitled, out of the assets
of the Corporation legally available for distribution to its stockholders,
whether from capital, surplus or earnings, to receive, at the option of each
Series A Stockholder, either:
4(b)(i) before any payment shall be made to
the holders of Common Stock or any other class or series of stock ranking on
Liquidation junior to such Series A Stock, an amount per share equal to the
Original Purchase Price (as defined in Section 9 hereof), plus ten percent (10%)
per annum thereon, for each share of Series A Stock from the Original Issuance
Date (as defined in Section 9 hereof) until the date of Liquidation, plus, in
each case, an amount equal to any accrued but unpaid dividends thereon pursuant
to Section 3(b) hereof; or
4(b)(ii) a pro rata share (ratably with the
holders of Common Stock ("Common Stockholders"), and the holders of any other
class or series of capital stock of the Corporation)) in all remaining assets of
the Corporation available for distribution to its stockholders. For purposes of
calculating the amount of any payment to be paid upon any such Liquidation, each
share of such Series A Stock shall be deemed to be that number of shares
(including fractional shares) of Common Stock into which it is then convertible,
rounded to the nearest one-tenth of a share.
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4(c)(i) In the event of and simultaneously with the
closing of an Event of Sale (as hereinafter defined) the Corporation shall
(unless waived pursuant to Section 4(c)(v) or otherwise prevented by law) redeem
all of the shares of Series A Stock then outstanding for a cash amount per share
determined as set forth herein (the "Special Liquidation Price," said redemption
being referred to herein as a "Special Liquidation"). To the extent that one or
more redemptions (as described in Section 8 hereof) and/or Special Liquidations
are occurring concurrently, the Special Liquidation under this Section 4(c)
shall be deemed to occur first. The date upon which the Special Liquidation
shall occur is sometimes referred to herein as the "Special Liquidation Date".
For all purposes of this Section 4(c), the Special Liquidation Price shall be,
at the option of each Series A Stockholder, either:
4(c)(i)(A) Before any payment shall be made
to the holders of Common Stock or any other class or series of stock ranking on
Liquidation junior to such Series A Stock, an amount per share equal to the
Original Purchase Price (as defined in Section 9 hereof), plus ten percent (10%)
per annum thereon, for each share of Series A Stock from the Original Issuance
Date (as defined in Section 9 hereof) until the Special Liquidation Date, plus,
in each case, an amount equal to any accrued but unpaid dividends thereon
pursuant to Section 3(b) (but not, in addition to the above, Section 3(a))
hereof; or
4(c)(i)(B) An amount equal to that amount
per share which would be received by each Series A Stockholder if, in connection
with an Event of Sale, all the consideration paid in exchange for the assets or
the shares of capital stock (as the case may be) of the Corporation were
actually paid to and received by the Corporation and the Corporation were
immediately thereafter liquidated and its assets distributed ratably to the
Common Stockholders, Series A Stockholders and holders of any other class or
series of capital stock of the Corporation. For purposes of calculating the
amount of any payment to be paid upon any such Event of Sale, each share of such
Series A Stock shall be deemed to be that number of shares (including fractional
shares) of Common Stock into which it is then convertible, rounded to the
nearest one-tenth of a share.
4(c)(ii) At any time on or after the Special
Liquidation Date, a Series A Stockholder shall be entitled to receive the
Special Liquidation Price for each such share of Series A Stock owned by such
holder. Subject to the provisions of Section 4(c)(iii) hereof, payment of the
Special Liquidation Price will be made upon actual delivery to the Corporation
or its transfer agent of the certificate representing such shares of Series A
Stock.
4(c)(iii) If on the Special Liquidation Date less
than all the shares of Series A Stock then outstanding may be legally redeemed
by the Corporation, the Special Liquidation shall be pro rata with respect to
such Series A Stock based upon the number of outstanding shares of Series A
Stock then owned by each holder thereof.
4(c)(iv) On and after any Special Liquidation Date,
all rights in respect of the shares of Series A Stock to be redeemed shall cease
and terminate except the right to receive the applicable Special Liquidation
Price as provided herein, and such shares of Series A Stock shall no longer be
deemed to be outstanding, whether or not the certificates representing such
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shares of Series A Stock have been received by the Corporation; provided,
however, that, if the Corporation defaults in the payment of the Special
Liquidation Price with respect to any Series A Stock, the rights of the
holder(s) thereof with respect to such shares of Series A Stock shall continue
until the Corporation cures such default.
4(c)(v) Anything contained herein to the contrary
notwithstanding, the provisions of this Section 4(c) may be waived by the
holders of a majority in voting power of the shares of Series A Stock then
outstanding, by delivery of written notice of waiver to the Corporation prior to
the closing of any Event of Sale, in which event the Corporation shall not
redeem any shares of Series A Stock pursuant to this Section 4(c).
4(c)(vi) Any notice required to be given to the
holders of shares of Series A Stock pursuant to Section 7(c) hereof in
connection with an Event of Sale shall include a statement by the Corporation of
(A) the Special Liquidation Price which each Series A Stockholder shall be
entitled to receive upon the occurrence of a Special Liquidation under this
Section 4(c), together with a statement of the extent to which the Corporation
will, if at all, be legally prohibited from paying each holder of Series A Stock
the Special Liquidation Price, and (B) the amount which would be payable per
share under 4(b)(i).
4(c)(vii) For purposes of this Section 4(c), an
"Event of Sale" shall mean (A) the merger or consolidation of the Corporation
into or with another corporation, partnership, joint venture, trust or other
entity, or the merger or consolidation of any corporation into or with the
Corporation (in which consolidation or merger the stockholders of the
Corporation receive distributions of cash or securities as a result of such
consolidation or merger in complete exchange for their shares of capital stock
of the Corporation), or (B) the sale or other disposition of all or
substantially all the assets of the Corporation, unless, upon consummation of
such merger, consolidation or sale of assets, the holders of voting securities
of the Corporation immediately prior to such transaction continue to own
directly or indirectly not less than a majority of the voting power of the
surviving corporation. An "Event of Sale" shall be deemed a Liquidation.
5. Right to Appoint Board Members, Advisers, and Observers.
5(a) In addition to the rights specified in Section
6(a), the holders of a majority in voting power of the Series A Stock, voting as
a separate class, shall have the exclusive right to elect one (1) member of the
Board of Directors of the Corporation ("Preferred Director"). In any election of
a Preferred Director pursuant to this Section 6(b), each Series A Stockholder
shall be entitled to one vote for each share of the Series A Stock held. The
exclusive voting right of the Series A Stockholders, contained in this Section
6(b), may be exercised at a special meeting of the Series A Stockholders called
as provided in accordance with the By-laws of the Corporation, at any annual or
special meeting of the stockholders of the Corporation, or by written consent of
such Series A Stockholders in lieu of a meeting. The Preferred Director elected
pursuant to this Section 6(b) shall serve from the date of his election and
qualification until his successor has been duly elected and qualified.
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5(b) A vacancy in the directorships to be elected by
the Series A Stockholders (including any vacancy created on account of an
increase in the number of directors on the Board of Directors), pursuant to
Section 6(b)(i), may be filled only by a vote at a meeting called in accordance
with the By-laws of the Corporation or written consent in lieu of such meeting
of (A) the holders of at least a majority in voting power of such Series A
Stock, or (B) the remaining director(s) elected by the Series A Stockholders.
5(c) The holders of a majority in voting power of the
Series A Stock, voting as a separate class, shall have the exclusive right to
elect one (1) member of the Corporation's Advisory Board (the "Adviser"). The
initial Adviser shall be John Dorocki, a representative of Series A Stock
Trinity Technology Management Incorporated ("Trinity"). The Adviser shall serve
until his successor has been duly elected and qualified. Any vacancy in the
Advisor position shall be filled in the same manner as provided in Section 5(a)
for the election of the Preferred Director.
5(d) The holders of a majority in voting power of the
Series A Stock, voting as a separate class, shall have the exclusive right to
designate a representative to the Board of Directors as an observer (the
"Observer"). The initial Observer shall be John Dorocki, a representative of
Series A Stock Trinity. The Observer shall be entitled to receive notice of and
attend all meetings of the Board of Directors, and shall be provided all
materials furnished to the Directors in connection with any meetings thereof as
and when such materials are provided to the directors. The Observer shall have
no voting rights. The Observer shall be compensated in the same manner as all
other non-employee Directors, and shall be reimbursed for all travel expenses
and other out-of-pocket expenses incurred in attending meetings of the Board of
Directors. The Observer shall be indemnified by the Corporation against any
claims arising out of the Observer's participation at Board meetings.
6 Voting.
6(a) In addition to any other rights provided for
herein or by law, the Series A Stockholders shall be entitled to vote, together
with the Common Stockholders as one class, on all matters as to which Common
Stockholders shall be entitled to vote, in the same manner and with the same
effect as such Common Stockholders except for election of Directors. In any such
vote, each share of Series A Stock shall entitle the holder thereof to the
number of votes per share that equals the number of shares of Common Stock
(including fractional shares) into which each such share of Series A Stock is
then convertible on the record date, rounded up to the nearest one-tenth of a
share.
6(b) The Corporation shall not, without the
affirmative approval of the holders of shares representing at least a majority
of the voting power of the Series A Stock then outstanding (determined as set
forth in the second sentence of Section 6(a) hereof), which majority must
include the affirmative vote of Trinity, acting separately from the holders of
Common Stock or any other securities of the Corporation, given by written
consent in lieu of a meeting or by vote at a meeting called for such purpose,
for which meeting or approval by written
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consent timely and specific notice (a "Notice") shall have been given to each
holder of such Preferred Stock, in the manner provided in the By-laws of the
Corporation:
(i) sell, abandon, transfer, lease or
otherwise dispose of all or substantially all of the Corporation's (or any of
the its subsidiaries') properties or assets other than in the ordinary course of
its business;
(ii) except as otherwise required by this
Restated Certificate of Incorporation, declare or pay any dividend or make any
distribution with respect to shares of its capital stock (whether in cash,
shares of capital stock or other securities or property) other then to the
Preferred Stock;
(iii) except as otherwise required by any
agreement approved by the Board of Directors with a director, officer, employee,
consultant or independent contractor of or to the Corporation providing for the
repurchase of any of its capital stock owned by such director, officer,
employee, consultant or independent contractor at the option of the Corporation,
provided that any such agreement is entered into pursuant to a stock option plan
which has been adopted by the Corporation and approved by the Board of Directors
and by the holders of at least 50% of the combined voting power of the Series A
Preferred Stock then outstanding (including any outstanding shares of Common
Stock issued upon conversion thereof), make any payment on account of the
purchase, redemption or other retirement of any share of capital stock of the
Corporation,
(iv) merge or consolidate with or into, or
permit any subsidiary to merge or consolidate with or into, any other
corporation, corporations or other entity or entities;
(v) voluntarily dissolve, liquidate or
wind-up or carry out any partial liquidation or distribution or transaction in
the nature of a partial liquidation or distribution;
(vi) in any manner alter or change the
designations, powers, preferences, rights, qualifications, limitations or
restrictions of the Series A Stock;
(vii) take any action to cause any
amendment, alteration or repeal of any of the provisions of this Restated
Certificate of Incorporation of the Corporation, with the exception of
ministerial amendments which would not have any adverse affect on the Series A
Preferred Stock;
(viii) except for the issuance of capital
stock or other securities constituting shares of Excluded Stock (as defined in
Section 7(d)(ii) below), authorize, designate, create, reclassify, grant, issue
or agree to issue any equity or debt security of the Corporation (or any of its
subsidiaries) having rights comparable or superior to the Series A Stock, or any
security, right, option or warrant convertible into, or exercisable or
exchangeable for, shares of the capital stock of the Corporation (or any of its
subsidiaries) having rights comparable or superior to the Series A Stock;
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(ix) participate by the Corporation or any
of its subsidiaries in any business other than one which is related to the
Corporation's current business;
(x) incur any long-term indebtedness, or
allow any of its subsidiaries to incur such indebtedness, other than ordinary
trade debt or working lines of credit; or
(xi) adopt, approve, amend or modify any
stock option plan of the Corporation or adopt, approve amend or modify the form
of any stock option agreement or restricted stock purchase agreement, or amend
or modify any stock option agreement or restricted stock purchase agreement
entered into between the Corporation and its employees, directors or
consultants, except for immaterial changes made thereto from time to time by
officers of the Corporation.
7 Conversion.
7(a)(i) Any Series A Stockholder shall have the
right, at any time or from time to time, to convert any or all of its Series A
Stock into that number of fully paid and nonassessable shares of Common Stock
for each share of Series A Stock so converted equal to the quotient of the
Original Purchase Price for such share divided by the Conversion Price for such
share (as defined in Section 7(d) hereof), as last adjusted and then in effect,
rounded up to the nearest one-tenth of a share; provided, however, that cash
shall be paid in lieu of the issuance of fractional shares of Common Stock, as
provided in Section 7(c)(ii) hereof. In any event, all Preferred Stock will
automatically convert as described in this Section 7 on the second (2nd)
anniversary of the Original Issue Date.
7(a)(ii) Any Series A Stockholder who exercises the
right to convert shares of Series A Stock into shares of Common Stock, pursuant
to this Section 7, shall be entitled to payment of all declared but unpaid
dividends payable with respect to such Series A Stock pursuant to Sections 3(a)
and 3(b) herein, up to and including the Conversion Date (as defined in Section
7(b)(ii) hereof).
7(b)(i) Any Series A Stockholder may exercise the
right to convert such shares into Common Stock pursuant to this Section 7 by
delivering to the Corporation during regular business hours, at the office of
the Corporation or any transfer agent of the Corporation or at such other place
as may be designated by the Corporation, the certificate or certificates for the
shares to be converted (the "Series A Preferred Certificate"), duly endorsed or
assigned in blank to the Corporation (if required by it).
7(b)(ii) Each Series A Preferred Certificate shall be
accompanied by written notice stating that such holder elects to convert such
shares and stating the name or names (with address) in which the certificate or
certificates for the shares of Common Stock (the "Common Certificate") are to be
issued. Such conversion shall be deemed to have been effected on the date when
such delivery is made, and such date is referred to herein as the "Conversion
Date."
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7(b)(iii) As promptly as practicable thereafter, the
Corporation shall issue and deliver to or upon the written order of such holder,
at the place designated by such holder, a certificate or certificates for the
number of full shares of Common Stock to which such holder is entitled and a
check or cash in respect of any fractional interest in any shares of Common
Stock, as provided in Section 7(c)(ii) hereof, payable with respect to the
shares so converted up to and including the Conversion Date.
7(b)(iv) The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become a
holder of record of Common Stock on the applicable Conversion Date, unless the
transfer books of the Corporation are closed on such Conversion Date, in which
event the holder shall be deemed to have become the stockholder of record on the
next succeeding date on which the transfer books are open, provided that the
Conversion Price shall be that Conversion Price in effect on the Conversion
Date.
7(b)(v) Upon conversion of only a portion of the
number of shares covered by a Series A Preferred Certificate, the Corporation
shall issue and deliver to or upon the written order of the holder of such
Series A Preferred Certificate, at the expense of the Corporation, a new
certificate covering the number of shares of the Series A Stock representing the
unconverted portion of the Series A Preferred Certificate, which new certificate
shall entitle the holder thereof to all the rights, powers and privileges of a
holder of such shares.
7(c)(i) If a Series A Stockholder shall surrender
more than one share of Series A Stock for conversion at any one time, then the
number of full shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of Series A Stock so
surrendered.
7(c)(ii) No fractional shares of Common Stock shall
be issued upon conversion of Series A Stock. The Corporation shall pay a cash
adjustment for any such fractional interest in an amount equal to the Current
Market Price thereof on the Conversion Date, as determined in accordance with
Section 7(d)(vii) hereof.
7(d) For all purposes of this Part A, the "Conversion
Price" with respect to the Series A Stock shall be equal to the lesser of:
eighty (80%) percent of the average of the lowest three (3) closing prices
(using the method for determining closing price set forth in Sections
7(d)(vii)(A), (B), and (C)) during the twenty (20) trading days prior to the
Conversion Date; and the Original Purchase Price (as hereinafter defined) with
respect to each such share of Series A Stock, subject to adjustment from time to
time as follows:
7(d)(i) If the Corporation shall, at any time or from
time to time after the Original Issuance Date, issue any shares of Common Stock
(which term, for purposes of this Section 7(d)(i), including all subsections
thereof, shall be deemed to include all other securities convertible into, or
exchangeable or exercisable for, shares of Common Stock (including, but not
limited to, Series A Stock) or options to purchase or other rights to subscribe
for such convertible or exchangeable securities, in each case other than
Excluded Stock (as hereinafter defined)), for a consideration per share less
than the applicable Conversion Price in effect immediately prior to the
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issuance of such Common Stock or other securities (a "Dilutive Issuance"), the
Conversion Price for Series A Stock in effect immediately prior to each such
Dilutive Issuance shall automatically be lowered to a price equal to the
consideration per share received by the Corporation upon such Dilutive Issuance
(the "Price Per Share"). For the purposes of any adjustment of the Conversion
Price pursuant to this Section 7(d)(i), the following provisions shall be
applicable.
7(d)(i)(A) In the case of the issuance of
Common Stock in whole or in part for cash, the consideration shall be deemed to
be the amount of cash paid therefor after deducting therefrom any discounts,
commissions or other expenses allowed, paid or incurred by the Corporation for
any underwriting or otherwise in connection with the issuance and sale thereof,
plus the value of any property other than cash received by the Corporation,
determined as provided in Section 7(d)(i)(B) hereof, plus the value of any other
consideration received by the Corporation determined as set forth in Section
7(d)(i)(C) hereof.
7(d)(i)(B) In the case of the issuance of
Common Stock for a consideration in whole or in part in property other than
cash, the value of such property other than cash shall be deemed to be the fair
market value of such property as determined in good faith by the Board of
Directors, irrespective of any accounting treatment; provided, however, that
such fair market value of such property as determined by the Board of Directors
shall not exceed the aggregate Current Market Price (as defined in Section
7(d)(vii) hereof) of the shares of Common Stock or such other securities being
issued, less any cash consideration paid for such shares, determined as provided
in Section 7(d)(i)(A) hereof and less any other consideration received by the
Corporation for such shares, determined as set forth in Section 7(d)(i)(C)
hereof.
7(d)(i)(C) In the case of the issuance of
Common Stock for consideration in whole or in part other than cash or property,
the value of such other consideration shall be determined by the Board of
Directors.
7(d)(i)(D) In the case of the issuance of
options or other rights to purchase or subscribe for Common Stock or the
issuance of securities by their terms convertible into or exchangeable or
exercisable for Common Stock or options to purchase or other rights to subscribe
for such convertible or exchangeable or exercisable securities:
7(d)(i)(D)(1) the aggregate maximum
number of shares of Common Stock deliverable upon exercise of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in Sections
7(d)(i)(A), (B) and (C) hereof), if any, received by the Corporation upon the
issuance of such options or rights plus the minimum purchase price provided in
such options or rights for the Common Stock covered thereby (the consideration
in each case to be determined in the manner provided in Sections 7(d)(i)(A), (B)
and (C) hereof);
7(d)(i)(D)(2) the aggregate maximum
number of shares of Common Stock deliverable upon conversion of, or in exchange
for, any such convertible or exchangeable securities or upon the exercise of
options to purchase or rights to subscribe for
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such convertible or exchangeable securities and subsequent conversion or
exchange thereof shall be deemed to have been issued at the time such securities
were issued or such options or rights were issued and for a consideration equal
to the consideration received by the Corporation for any such securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the Corporation upon the conversion or exchange of such
securities or the exercise of any related options or rights (the consideration
in each case to be determined in the manner provided in Sections 7(d)(i)(A), (B)
and (C) hereof);
7(d)(i)(D)(3) if there is any
change in the exercise price of, or number of shares deliverable upon exercise
of, any such options or rights or upon the conversion or exchange of any such
convertible or exchangeable securities (other than a change resulting from the
antidilution provisions thereof), then the Conversion Price shall automatically
be readjusted in proportion to such change; and
7(d)(i)(D)(4) upon the expiration
of any such options or rights or the termination of any such rights to convert
or exchange such convertible or exchangeable securities, the Conversion Price
shall be automatically readjusted to the Conversion Price that would have
obtained had such options, rights or convertible or exchangeable securities not
been issued.
7(d)(ii) "Excluded Stock" shall mean:
7(d)(ii)(A) Shares of Common Stock issued
upon conversion of any shares of Series A Stock;
7(d)(ii)(B) Common Stock issued or issuable
to officers, directors or employees of or consultants or independent contractors
to the Corporation, pursuant to any written agreement, plan or arrangement, to
purchase, or rights to subscribe for, such Common Stock, including Common Stock
issued under an employee stock option of the Corporation that has been approved
by the holders of a majority of the combined voting power of the Series A Stock
then outstanding (determined in accordance with Section 6(a) hereof), and which,
as a condition precedent to the issuance of such shares, provides for the
vesting of such shares and subjects such shares to restrictions on transfers and
rights of first offer in favor of the Corporation that have been approved by the
holders of a majority of the combined voting power of the Series A Stock then
outstanding (determined in accordance with Section 6(a) hereof); provided,
however, that the maximum number of shares of Common Stock heretofore or
hereafter issuable pursuant to the Corporation's employee stock option plan and
all such agreements, plans and arrangements shall not exceed 1,000,000 shares.
7(d)(ii)(C) Common Stock issued as a stock
dividend payable in shares of Common Stock, or capital stock of any class
issuable upon any subdivision, recombination, split-up or reverse stock split of
all the outstanding shares of such class of capital stock.
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7(d)(iii) If the number of shares of Common Stock
outstanding at any time after the Original Issuance Date (as hereinafter
defined) is increased by a stock dividend payable in shares of Common Stock or
by a subdivision or split-up of shares of Common Stock, then, following the
record date fixed for the determination of holders of Common Stock entitled to
receive such stock dividend, subdivision or split-up, the Conversion Price shall
be appropriately decreased so that the number of shares of Common Stock issuable
on conversion of each share of Series A Stock shall be increased in proportion
to such increase in outstanding shares.
7(d)(iv) If, at any time after the Original Issuance
Date, the number of shares of Common Stock outstanding is decreased by a
combination of the outstanding shares of Common Stock, then, following the
record date for such combination, the Conversion Price shall be appropriately
increased so that the number of shares of Common Stock issuable on conversion of
each share of Series A Stock shall be decreased in proportion to such decrease
in outstanding shares.
7(d)(v) In the event, at any time after the Original
Issuance Date, of any capital reorganization, or any reclassification of the
capital stock of the Corporation (other than a change in par value or from par
value to no par value or from no par value to par value or as a result of a
stock dividend or subdivision, split-up or combination of shares), or the
consolidation or merger of the Corporation with or into another person (other
than consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any change in the powers, designations,
preferences and rights, or the qualifications, limitations or restrictions, if
any, of the capital stock of the Corporation) or of the sale or other
disposition of all or substantially all the properties and assets of the
Corporation as an entirety to any other person (any such transaction, an
"Extraordinary Transaction"), then the Corporation shall provide appropriate
adjustment to the Conversion Price with respect to each share of Series A Stock
outstanding after the effectiveness of such Extraordinary Transaction (and
excluding any Series A Stock redeemed pursuant to Section 4(c) hereof in
connection therewith) such that each share of Series A Stock outstanding
immediately prior to the effectiveness of the Extraordinary Transaction (other
than the shares redeemed pursuant to Section 4(c) hereof) shall be convertible
into the kind and number of shares of stock or other securities or property of
the Corporation, or of the corporation resulting from or surviving such
Extraordinary Transaction, that a holder of the number of shares of Common Stock
deliverable (immediately prior to the effectiveness of the Extraordinary
Transaction) upon conversion of such share of Series A Stock would have been
entitled to receive upon such Extraordinary Transaction. The provisions of this
Section 7(d)(v) shall similarly apply to successive Extraordinary Transactions.
7(d)(vi) All calculations under this Section 7(d)
shall be made to the nearest one-tenth of a cent ($.001) or to the nearest
one-tenth of a share, as the case may be.
7(d)(vii) For the purpose of any computation pursuant
to Section 7(c) hereof or this Section 7(d), the Current Market Price at any
date of one share of Common Stock shall be deemed to be the average of the daily
closing prices for the 30 consecutive business days ending on the fifth (5th)
business day before the day in question (as adjusted for any stock
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dividend, split-up, combination or reclassification that took effect during such
30-business-day period) as follows:
7(d)(vii)(A) If the Common Stock is listed
or admitted for trading on a national securities exchange, then the closing
price for each day shall be the last reported sales price regular way or, in
case no such reported sales took place on such day, the average of the last
reported bid and asked prices regular way, in either case on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading.
7(d)(vii)(B) If the Common Stock is not at
the time listed or admitted for trading on any such exchange, then such price as
shall be equal to the last reported sale price, or if there is no such sale
price, the average of the last reported bid and asked prices, as reported by the
National Association of Securities Dealers Automated Quotation System ("NASDAQ")
on such day.
7(d)(vii)(C) If the Common Stock is not at
the time quoted on the NASDAQ, then such price shall be equal to the last
reported bid and asked prices on such day as reported by the National Quotation
Bureau, Inc., or any similar reputable quotation and reporting service, if such
quotation is not reported by the National Quotation Bureau, Inc.
7(d)(vii)(D) If the Common Stock is not
traded in such manner that the quotations referred to in this Section 7(d)(vii)
are available for the period required hereunder, then the Current Market Price
shall be the fair market value of such share, as determined in good faith by a
majority of the entire Board of Directors.
7(d)(viii) In any case in which the provisions of
this Section 7(d) shall require that an adjustment shall become effective
immediately after a record date for an event, the Corporation may defer until
the occurrence of such event (A) issuing to the holder of any shares of Series A
Stock converted after such record date and before the occurrence of such event
the additional shares of capital stock issuable upon such conversion by reason
of the adjustment required by such event over and above the shares of capital
stock issuable upon such conversion before giving effect to such adjustment, and
(B) paying to such holder any cash amounts in lieu of fractional shares pursuant
to Section 7(c)(ii) hereof; provided, however, that the Corporation shall
deliver to such holder a due bill or other appropriate instrument evidencing
such holder's right to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment.
7(d)(ix) If a state of facts shall occur that,
without being specifically controlled by the provisions of this Section 7, would
not fairly protect the conversion rights of the holders of the Series A Stock in
accordance with the essential intent and principles of such provisions, then the
Board of Directors shall make an adjustment in the application of such
provisions, in accordance with such essential intent and principles, so as to
protect such conversion rights.
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7(e) Whenever the Conversion Price shall be adjusted as
provided in Section 7(d) hereof, the Corporation shall forthwith file and keep
on record at the office of the Secretary of the Corporation and at the office of
the transfer agent for the Series A Stock or at such other place as may be
designated by the Corporation, a statement, signed by its President or Chief
Executive Officer and by its Treasurer or Chief Financial Officer, showing in
detail the facts requiring such adjustment and the Conversion Price that shall
be in effect after such adjustment. The Corporation shall also cause a copy of
such statement to be sent by first-class, certified mail, return receipt
requested, postage prepaid, to each Series A Stockholder at such holder's
address appearing on the Corporation's records. Where appropriate, such copy
shall be given in advance of any such adjustment and shall be included as part
of a notice required to be mailed under the provisions of Section 7(f) hereof.
7(f) In the event the Corporation shall propose to take any
action of the types described in Section 7(d)(i), (iii), (iv) or (v) hereof, or
any other Event of Sale, the Corporation shall give notice to each Series A
Stockholder in the manner set forth in Section 7(e) hereof, which notice shall
specify the record date, if any, with respect to any such action and the date on
which such action is to take place. Such notice shall also set forth such facts
with respect thereto as shall be reasonably necessary to indicate the effect of
such action (to the extent such effect may be known at the date of such notice)
on the Conversion Price with respect to the Series A Stock, and the number, kind
or class of shares or other securities or property which shall be deliverable or
purchasable upon each conversion of Series A Stock. In the case of any action
that would require the fixing of a record date, such notice shall be given at
least 20 days prior to the record date so fixed, and in the case of any other
action, such notice shall be given at least 30 days prior to the taking of such
proposed action.
7(g) The Corporation shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares of
capital stock of the Corporation upon conversion of any shares of Series A
Stock; provided, however, that the Corporation shall not be required to pay any
taxes which may be payable in respect of any transfer involved in the issuance
or delivery of any certificate for such shares in a name other than that of the
Series A Stockholder in respect of which such shares of Series A Stock are being
issued.
7(h) The Corporation shall reserve out of its authorized but
unissued shares of Common Stock solely for the purpose of effecting the
conversion of the Series A Stock sufficient shares of Common Stock to provide
for the conversion of all outstanding shares of Series A Stock.
7(i) All shares of Common Stock which may be issued in
connection with the conversion provisions set forth herein will, upon issuance
by the Corporation, be validly issued, fully paid and nonassessable, not subject
to any preemptive or similar rights and free from all taxes, liens or charges
with respect thereto created or imposed by the Corporation.
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8. Redemption.
8(a) If a Series A Stockholder has given notice (in accordance
with Section 7(b)) of its election to convert some or all of its Series A Stock,
and the Conversion Price at the time of such conversion is less than $5.00,
then, at the option of the Corporation, the Series A Stock may be redeemed by
the Corporation in lieu of conversion on the Redemption Date (as such term is
defined in Section 8(c) hereof), unless otherwise prevented by law. The
Corporation may elect to redeem such Series A Stock by providing notice of such
election to the Series A Stockholder within two (2) days of the Conversion Date
(the "Redemption Notice"). The redemption price per share shall be an amount
equal to one hundred twenty (120%) percent of the Original Purchase Price for
such Series A Stock, plus an amount equal to any accrued but unpaid dividends
thereon. The total sum payable per share of Series A Stock on the Redemption
Date, is hereinafter referred to as the "Redemption Price," and the payment to
be made on the Redemption Date is hereinafter referred to as the "Redemption
Payment."
8(b) On and after the Redemption Date, all rights of any
Requesting Holder with respect to those shares of Series A Stock being redeemed
by the Corporation pursuant to Section 8(a), except the right to receive the
Redemption Price per share of Series A Stock as hereinafter provided, shall
cease and terminate, and such shares of Series A Stock shall no longer be deemed
to be outstanding, whether or not the certificates representing such shares have
been received by the Corporation; provided, however, that, notwithstanding
anything to the contrary set forth herein, (A) if the Corporation defaults in
the payment of the Redemption Payment, the rights of the Requesting Holder with
respect to such shares of Series A Stock shall revive to their pre-Redemption
Date status, and (B) without limiting any other rights of a Requesting Holder,
upon the occurrence of a subsequent Liquidation or Event of Sale, with respect
to the shares of Series A Stock in respect of which no Redemption Payment has
been received by a Requesting Holder, such Requesting Holder shall be accorded
the rights and benefits set forth in Part A, Section 4 hereof in respect of such
remaining shares, as if no prior redemption request had been made.
8(c) The Corporation shall send its Redemption Notice pursuant
to this Section 8 by personal delivery, facsimile with confirmed receipt or
overnight mail with a national delivery service, to the Series A Stockholder at
its address on the books and records of the Corporation. Within five (5)
business days of transmission of a Redemption Notice, the Corporation shall
notify in writing all other Series A Stockholders of the request for conversion
by the Series A Stockholder and the subsequent election to redeem by the
Corporation (the "Corporation Notice"). Within forty-five (45) days of
transmission of the Redemption Notice, the Corporation shall pay each Requesting
Holder the applicable Redemption Price pursuant to the terms of Section 8(a),
provided that the Corporation or its transfer agent has received the
certificate(s) representing the shares of Series A Stock to be redeemed. Such
payment date shall be referred to herein as the "Redemption Date". If, on the
Redemption Date, less than all the shares of Series A Stock elected to be
redeemed may be legally redeemed by the Corporation, the redemption of such
Series A Stock shall be pro rata based upon the number of shares of Series A
Stock elected to be redeemed from each converting Series A Stockholder; and any
shares of
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Series A Stock not redeemed shall be immediately converted at the lower of the
Conversion Price in effect on the Conversion Date or the Conversion Price in
effect on Redemption Date.
9 Definitions. As used in Part A of this Restated Certificate
of Incorporation, the following terms shall have the corresponding meanings:
"Business Day" shall mean any day other than a Saturday,
Sunday or public holiday in the state where the principal executive office of
the Corporation is located.
"Conversion Date" shall have the meaning given it in Section
7(b)(ii).
"Conversion Price" shall have the meaning given it in Section
7(d).
"Original Issuance Date" with respect to any share of Series A
Stock shall mean the date of first issuance by the Corporation of a share of
Series A Stock.
"Original Purchase Price" shall mean, with respect to the
Series A Stock, the lesser of 80% of the average closing price for the three
trading days prior to the initial closing, but no less than $6.00 (waivable by
the Corporation) or more than $8.00 per share of Preferred Stock, subject, for
all purposes other than Section 7 hereof (which provisions shall be applied in
accordance with their own terms), to Proportional Adjustment.
"Proportional Adjustment" shall mean an adjustment made to the
price of the Series A Stock upon the occurrence of a stock split, reverse stock
split, stock dividend, stock combination, reclassification or other similar
change with respect to such security, such that the price of one share of the
Series A Stock before the occurrence of any such change shall equal the
aggregate price of the share (or shares or fractional share) of such security
(or any other security) received by the holder of the Series A Stock with
respect thereto upon the effectiveness of such change.
PART B. Additional Series of Preferred Stock
1 Designation of Additional Series of Preferred Stock. Subject
to Section 6 hereof, the Board of Directors is hereby expressly authorized to
provide for, designate and issue, out of the authorized but unissued shares of
Preferred Stock, one or more other series of Preferred Stock in addition to the
Series A Stock, subject to the terms and conditions set forth herein. Before any
shares of any such series are issued, the Board of Directors shall fix, and
hereby is expressly empowered to fix, by resolution or resolutions, the
following provisions of the shares of any such series:
(a) the designation of such series, the number of
shares to constitute such series and the stated value thereof, if different from
the par value thereof;
(b) whether the shares of such series shall have
voting rights or powers, in addition to any voting rights required by law, and,
if so, the terms of such voting rights or powers, which may be full or limited;
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(c) the dividends, if any, payable on such series,
whether any such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, the preference
or relation which such dividends shall bear to the dividends payable on any
shares of stock of any other class or series;
(d) whether the shares of such class or series shall
be subject to redemption by the Corporation, and, if so, the times, prices and
other conditions of such redemption;
(e) the amount or amounts payable with respect to
shares of such class or series upon, and the rights of the holders of such class
or series in, the voluntary or involuntary liquidation, dissolution or winding
up, or upon any distribution of the assets, of the Corporation;
(f) whether the shares of such class or series shall
be subject to the operation of a retirement or sinking fund and, if so, the
extent to and manner in which any such retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such class or series for
retirement or other corporate purposes and the terms and provisions relative to
the operation thereof;
(g) whether the shares of such class or series shall
be convertible into, or exchangeable for, shares of stock of any other class or
series of any other securities and, if so, the price or prices or the rate or
rates of conversion or exchange and the method, if any, of adjusting the same,
and any other terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be
effective while any shares of such class or series are outstanding upon the
payment of dividends or the making of other distributions on, and upon the
purchase, redemption or other acquisition by the Corporation of, the Common
Stock or shares of stock of any other class or series;
(i) the conditions or restrictions, if any, to be
effective while any shares of such class or series are outstanding upon the
creation of indebtedness of the Corporation or upon the issue of any additional
stock, including additional shares of such class or series or of any other class
or series; and
(j) any other powers, designations, preferences and
relative, participating, optional or other special rights, and any
qualifications, limitations or restrictions thereof.
The powers, designations, preferences and relative,
participating, optional or other special rights of each series of Preferred
Stock, and the qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding. The Board
of Directors is hereby expressly authorized from time to time to increase
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(but not above the total number of authorized shares of Preferred Stock) or
decrease (but not below the number of shares thereof then outstanding) the
number of shares of stock of any series of Preferred Stock so designated
pursuant to this Part B, Section 1.
PART C. Common Stock
1 Designation and Amount. The designation of this class of
capital stock shall be "Common Stock," par value $.001 per share ("Common
Stock"). The number of shares, powers, terms, conditions, designations,
preferences and privileges, relative, participating, optional and other special
rights, and qualifications, limitations and restrictions, shall be as set forth
in this Part C. The number of authorized shares of Common Stock may be increased
or decreased (but not below the combined number of shares thereof then
outstanding and those reserved for issuance upon conversion of the Series A
Stock) by the affirmative vote of the holders of at least a majority of the
capital stock of the Corporation entitled to vote, irrespective of the
provisions of Nevada Revised Statutes Title 78.
2. Voting. Except as provided in this Restated Articles of
Incorporation or by applicable law, each Common Stockholder shall be entitled to
one vote only for each share of Common Stock held of record on all matters as to
which Common Stockholders shall be entitled to vote, which voting rights shall
not be cumulative.
3. Other Rights. Each share of Common Stock issued and
outstanding shall be identical in all respects with each other such share, and
no dividends shall be paid on any shares of Common Stock unless the same
dividend is paid on all shares of Common Stock outstanding at the time of such
payment. Except for and subject to those rights expressly granted to the holders
of Preferred Stock and except as may be provided by the laws of the State of
Nevada, the Common Stockholders shall have all other rights of stockholders,
including, without limitation, (a) the right to receive dividends, when and as
declared by the Board of Directors, out of assets lawfully available therefor,
and (b) in the event of any distribution of assets upon a liquidation,
dissolution or winding-up of the affairs of the Corporation or otherwise, the
right to receive ratably and equally, together with the holders of the Series A
Stock (subject to the provisions of Article III, Section 4) and the holders of
outstanding shares of any other class or series of stock, all the assets and
funds of the Corporation remaining after the payment to the holders of the
Preferred Stock of the specific amounts which they are entitled to receive upon
such liquidation, dissolution or winding-up of the affairs of the Corporation as
provided herein. No shares of capital stock shall have any preemptive rights.
ARTICLE IV
Registered Agent
The address of the registered office of the Corporation in the State of
Nevada is 210 E. Flamingo, Las Vegas, NV 89109. The name of the registered agent
of the Corporation at such address is STEWART SYTNER.
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ARTICLE V
Board of Directors
Subject to the provisions of Section 6(c) of Article III
hereof, the entire Board of Directors of the Corporation shall consist of not in
excess of seven (7) persons, one (1) of whom shall be the Preferred Director, as
defined in Section 5(a) of Article III hereof. Unless and except to the extent
that the By-laws of the Corporation otherwise require, the election of directors
of the Corporation need not be by written ballot.
ARTICLE VI
By-laws
In furtherance and not in limitation of the powers conferred
by the laws of the State of Nevada, the Board of Directors is expressly
authorized to adopt, amend or repeal the By-laws of the Corporation, subject to
the provisions of Section 6 of Article III hereof.
ARTICLE VII
Perpetual Existence
The Corporation is to have perpetual existence.
ARTICLE VIII
Amendments and Repeal
Except as otherwise specifically provided in this Restated
Articles of Incorporation, the Corporation reserves the right at any time, and
from time to time, to amend, alter, change or repeal any provision contained in
this Restated Articles of Incorporation, and to add or insert other provisions
authorized at such time by the laws of the State of Nevada, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Restated Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the rights reserved
in this Article VIII.
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IN WITNESS WHEREOF, the undersigned has caused this Restated
Articles of Incorporation to be duly executed on behalf of the Corporation May
15, 2000, 2000.
ATTEST: EAGLETECH
COMMUNICATIONS, INC.
___________________________ By: ______________________
Name: Name: Robert J. Dobbs, Jr.
Title: Secretary Title: President
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