Exhibit 4.1
FINANCIALWEB.COM, INC.
THE SERIES A CONVERTIBLE PREFERRED STOCK
RESOLVED, that in accordance with the provisions of the Company's
Certificate of Incorporation, a series of convertible preferred stock, $0.001
par value per share ("Series A Stock"), be and hereby is created and authorized
for issuance, and that the designations and amounts thereof and the preferences,
voting powers, limitations, restrictions, and other rights of the Series A Stock
are as set forth in this resolution:
SECTION 1. Designation and Amount. Eight hundred fifteen thousand four
hundred eighty-eight (815,488) shares of Series A Stock, $.001 par value, are
designated as "Series A Convertible Preferred Stock" with designations and the
powers, preferences and rights, and the qualifications, limitations and
restrictions specified herein. Such number of shares may be increased or
decreased by resolution of the Board of Directors.
SECTION 2. Dividends and Distributions. The holders of Series A Stock
shall not be entitled to any dividends per share.
SECTION 3. Conversion Rights. The holders of the Series A Stock shall
have the following rights with respect to the conversion of the Series A Stock
into shares of Common Stock (the "Conversion Rights"):
3.1 Subject to and in compliance with the provisions of this Section
3, any shares of Series A Stock may, at the option of the holder, be converted
at any time into fully-paid and nonassessable shares of the Company's common
stock, par value $.001 per share (the "Common Stock"). The number of shares of
Common Stock to which a holder of Series A Stock shall be entitled upon
conversion shall be the product obtained by multiplying the Series A Conversion
Rate then in effect (determined as provided in Section 3.2) by the number of
shares of Series A Stock being converted.
3.2 The conversion rate in effect at any time for conversion of the
Series A Stock (the "Series A Conversion Rate") shall be the quotient obtained
by dividing the Original Issue Price of the Series A Stock by the Series A
Conversion Price, calculated as provided in Section 3.3.
3.3 The conversion price for the Series A Stock shall initially be
the Original Issue Price of the Series A Stock (the "Series A Conversion
Price"). Such initial Series A Conversion Price shall be adjusted from time to
time in accordance with this Section 3. All references to the Series A
Conversion Price herein shall mean the Series A Conversion Price as so adjusted.
3.4 Each holder of Series A Stock who desires to convert the same
into shares of Common Stock pursuant to this Section 3 shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
Company or any transfer agent for the Series A Stock, and shall give written
notice to the Company at such office that such holder elects to convert the
same. Such notice shall state the number of shares of Series A Stock being
converted. Thereupon, the Company 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. Such
conversion shall be deemed to have been made at the close of business on the
date of such surrender of the certificates representing the shares of Series A
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.
3.5 If and whenever the Company shall issue any shares of Preferred
Stock or Common Stock for a consideration per share less than the Series A
Conversion Price (whether pursuant to a direct issuance or any option or warrant
to acquire shares) or issue any security convertible into shares of Common Stock
at a conversion value of less than the Series A Conversion Price, then,
forthwith upon such issue or sale, the Series A Conversion Price shall be
reduced to the lowest price at which such shares were offered in any one
transaction; provided, however, that the foregoing provision of this Section 3.5
shall not apply to any Common Stock or Preferred Stock issued: (i) to any person
pursuant to any stock option or similar plan or arrangement for the benefit of
officers, directors and employees of or consultants to the Company or its
subsidiaries in effect on the Original Issue Date or thereafter adopted by the
Board of Directors and (ii) on conversion of any security convertible into
Common Stock that are issued and outstanding as of the Original Issue Date.
3.6 The Company shall at any time or from time to time after the date
that the first share of Series A Stock is issued (the "Original Issue Date")
effect a subdivision (or stock split) of the outstanding Common Stock without a
corresponding subdivision of the Series A Stock, the Series A Conversion Price
in effect immediately before that subdivision shall be proportionately
decreased. Conversely, if the Company shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock
into a smaller number of shares (or reverse stock split) without a corresponding
combination of the Series A Stock, the Series A Conversion Price in effect
immediately before the combination shall be proportionately increased. Any
adjustment under this Section 3.6 shall become effective at the close of
business on the date the subdivision or combination becomes effective.
3.7 If at any time or from time to time after the Original Issue
Date, the Common Stock issuable upon the conversion of the Series A 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, in any such
event each holder of Series A 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 maximum number of shares of Common Stock into which such shares
of Series A 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.
3.8 If at any time or from time to time after the Original Issue
Date, there is a capital reorganization of the Common Stock, as a part of such
capital reorganization, provision shall be made so that the holders of the
Series A Stock shall thereafter be entitled to receive upon conversion of the
Series A Stock the number of shares of stock or other securities or property of
the Company to which a holder of the number of shares of Common Stock
deliverable upon conversion would have been entitled on such capital
reorganization, subject to adjustment in respect of such stock or securities by
the terms thereof. In any such case, appropriate adjustment shall be made in
the application of the provisions of this Section 3 with respect to the rights
of the holders of Series A Stock after the capital reorganization to the end
that the provisions of this Section 3 (including adjustment of the Series A
Conversion Price then in effect and the number of
shares issuable upon conversion of the Series A Stock) shall be applicable after
that event and be as nearly equivalent as practicable.
3.9 In each case of an adjustment or readjustment of the Series A
Conversion Price for the number of shares of Common Stock or other securities
issuable upon conversion of the Series A Stock, if the Series A Stock is then
convertible pursuant to this Section 3, the Company, at its expense, shall
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 Series A Stock at the holder's address as shown in the Company's
books. The certificate shall set forth such adjustment or readjustment, showing
in detail the facts upon which such adjustment or readjustment is based.
3.10 No fractional shares of Common Stock shall be issued upon
conversion of Series A Stock. All shares of Common Stock (including fractions
thereof) issuable upon conversion of more than one share of Series A Stock by a
holder thereof shall be aggregated for purposes of determining whether the
conversion would result in the issuance of any fractional share. If, after the
aforementioned aggregation, the conversion would result in the issuance of any
fractional share, the Company shall, in lieu of issuing any fractional share,
pay cash equal to the product of such fraction multiplied by the Common Stock's
fair market value (as determined by the Board of Directors, with reference to
the current trading price for the Common Stock) on the date of conversion.
3.11 The Company 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 A 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 A Stock. 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 A Stock,
the Company 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.
3.12 Any notice required by the provisions of this Section 3 shall be
in writing and shall be deemed effectively given: (i) upon personal delivery to
the party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) three (3) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (iv) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All notices shall be addressed
to each holder of record at the address of such holder appearing on the books of
the Company.
3.13 The provisions of Section 3 will not apply to any Common Stock or
Series A Stock issued or issuable: (i) to any person pursuant to any stock
option, stock purchase or similar plan or arrangement for the benefit of
officers, directors and employees of or consultants to the Company or its
subsidiaries in effect on the Original Issue Date or thereafter adopted by the
Board of Directors and (ii) on conversion of the Series A Stock.
SECTION 4. Redemption Rights. The shares of Series A Convertible
Preferred Stock shall be redeemed as follows:
4.1 Redemption at Company's Option. Upon at least thirty (30) days'
prior written notice, the Company may redeem effective at any time, from each
holder of shares of Series A Stock all of the shares of Series A Stock held by
such holder.
4.2 Redemption Price and Payment. The Series A Stock to be redeemed
pursuant to 4.1 shall be redeemed by paying for each share in cash an amount
equal to the Original Issue Price, such amount also being referred to as the
"Redemption Price". Such payment shall be made in full to the holders entitled
thereto.
4.3 Redemption Mechanics. At least 10 but not more than 30 days
prior to the date of any redemption (the "Redemption Date"), written notice (the
"Redemption Notice") shall be given by the Company by mail, postage prepaid, or
by telex to non-U.S. residents for which telex instructions shall have been
provided to the Company for such purpose, to each holder of record (at the close
of business on the business day next preceding the day on which the Redemption
Notice is given) of shares of Series A Stock notifying such holder of the
redemption and specifying the Redemption Price, the Redemption Date and the
place where said Redemption Price shall be payable. The Redemption Notice shall
be addressed to each holder at his address as shown by the records of the
Company. The holder shall continue to have the conversion rights set forth in
Section 3 prior to the Redemption Date. From and after the close of business on
the Redemption Date, unless there shall have been a default in the payment of
the Redemption Price, all rights of holders of shares of Series A Stock (except
the right to receive the Redemption Price) shall cease with respect to such
shares, and such shares shall not thereafter be transferred on the books of the
Company or be deemed to be outstanding for any purpose whatsoever. If the funds
of the Company legally available for redemption of shares of Series A Stock on
the Redemption Date are insufficient to redeem the total number of outstanding
shares of Series A Stock, the holders of shares of Series A Stock shall share
ratably in any funds legally available for redemption of such shares according
to the respective amounts which would be payable with respect to the full number
of shares owned by them if all such outstanding shares were redeemed in full.
The shares of Series A Stock not redeemed shall remain outstanding and entitled
to all rights and preferences provided herein for the Series A Stock. At any
time thereafter when additional funds of the Company are legally available for
the redemption of such shares of Series A Stock, such funds will be used, at the
end of the next succeeding fiscal quarter, to redeem the balance of such shares,
or such portion thereof for which funds are then legally available, on the basis
set forth above.
SECTION 5. Reacquired Shares. Any shares of Series A Stock redeemed,
purchased, or otherwise acquired by the Company in any manner whatsoever will
have the status of authorized but unissued shares of Series A Stock.
SECTION 6. Liquidation. Upon any liquidation, dissolution or winding up of
the Company (other than in connection with a reorganization of the Company in
which the rights and preferences of the Series A Stock are not adversely
affected), whether voluntary or involuntary, the holders of Series A Stock
shall be entitled, before any distribution or payment is made upon any stock
ranking on liquidation junior to the Series A Stock, to be paid an amount equal
to Original Issuance Price per share of Series A Stock (in the aggregate, the
"Liquidation Preference") (such amount payable with respect to one share of
Series A Stock sometimes shall be referred to as the "Liquidation Payment").
Upon any such liquidation, dissolution or winding up of the Company, after the
holders of Series A Stock shall have been paid the full Liquidation Preference,
the remaining net assets of the Company may be distributed to the holders of
stock ranking on liquidation junior to the Series A Stock. Written notice of
such liquidation, dissolution or winding up, stating a payment date, the amount
of the Liquidation Payment and the place where said Liquidation Payment shall be
payable, shall be given by mail, postage prepaid, or by telex to non-U.S.
residents, not less than 20 days prior to the payment date stated therein, to
the holders of record of Series A Stock, such notice to be addressed to each
such holder at its address as shown by the records of the Company.
SECTION 7. Voting Rights. The holders of shares of Series A Stock shall
have no voting rights.
SECTION 8. Registration Rights.
8.1. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Series A Stock holder (the
"Holder") at least 30 days before the filing with the Securities and Exchange
Commission ("SEC") of such Registration Statement. Each Holder who desires to
include any of its shares of Common Stock into which the Series A Stock are
convertible, whether or not already converted, (the "Registrable Securities") in
such Registration Statement shall give written notice to the Company within 20
days after the date of receipt of written notice from the Company. The Company
shall thereupon include in such filing the shares of Common Stock designated by
such Holder and, subject to its right to withdraw such filing, shall use its
best efforts to effect registration under the Securities Act of such shares of
Common Stock.
8.2 Conditions. The right of the Holders to have shares included in
any Registration Statement in accordance with the provision of this Section 8
shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such Registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they own
which are not included in any such Registration Statement in accordance with
this Section 8 for any time period specified in writing by any managing
underwriter of the offering to which such Registration Statement relates;
(b) If any managing underwriter of the offering to which the
Registration Statement relates informs the Company in writing that the total
number of shares of Common Stock requested by the Holders to be included in the
Registration Statement is sufficiently large to affect the success of such
offering adversely, then the Company will include only the number of shares, if
any, in the Registration Statement that such managing underwriter shall advise
the Company will not so affect the
offering, and reductions in the number of shares of Common Stock owned by the
Holders and other persons who have elected to have shares of Common Stock
included in such Registration Statement will be made proportionately to their
respective percentages of ownership of shares to be included in the Registration
Statement; and
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 8 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares.
8.3. Registration Covenants of Company. The Company shall use its best
efforts to prepare and file the Registration Statement or proceed with the
Offering as to which the notice specified herein is given.
(a) The Company shall use its best efforts to file a registration
statement within forty-five (45) days of receipt of any demand therefor, shall
use its best efforts to have any registration statement declared effective at
the earliest possible time, and shall furnish each Holder desiring to sell
Registrable Securities such number of prospectuses as shall reasonably be
requested.
(b) As expeditiously as possible prepare and file with the Commission
any amendments and supplements to the registration statement and the prospectus
included therein as may be necessary to keep the registration statement
effective until the later of (i) the date when all Registrable Securities
registered have been sold, or (ii) one year from the effective date of the
Registration Statement.
(c) The Company shall pay all costs (excluding any underwriting or
selling commissions or other charges of any broker-dealer acting on behalf of
Holder(s)), fees and expenses in connection with all registration statements
filed pursuant to Section 8 hereof including, without limitation, the Company's
legal and accounting fees. If the Company shall fail to comply with the
provisions of Section 8.3(a) or (b), the Company shall, in addition to any other
equitable or other relief available to the Holder(s), be liable for any or all
damages due to loss of profit sustained by the Holder(s) requesting registration
of their Registrable Securities.
(d) The Company shall take all necessary action which may be required
in qualifying or registering the Registrable Securities included in the
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably as requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
(e) The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage, expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may be subject.
(f) The Holder(s) of the Registrable Securities to be sold pursuant to
a registration statement, and their successors and assigns, shall severally,
and not jointly, indemnify the Company, its officers and directors and each
person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss,
claim, damage or expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever)
to which they may become subject under the Act, the Exchange Act or otherwise,
arising from written information furnished by or on behalf of such Holders, or
their successors or assigns, for specific inclusion in such a registration
statement.
(g) The Company shall furnish to each Holder participating in an
offering including Registrable Securities, pursuant to Section 8.1 hereof, and
to each underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold comfort" letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the effective date
of a registration statement relating to any Registrable Securities pursuant to
Section 8.1 hereof, and in any event within fifteen (15) months thereafter, make
"generally available to its security holders" (within the meaning of Rule 158
under the Act) an earnings statement (which need not be audited) complying with
Section 11(a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the effective date of the registration
statement.
(i) The Company shall deliver promptly to each Holder participating in
an offering including any Registrable Securities pursuant to Section 8.1 hereof,
who so requests, and to the managing underwriter, copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. ("NASD"). Such investigation shall
include access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any such Holder
shall reasonably request as it deems necessary to comply with applicable
securities laws and NASD rules.
(j) With respect to a registration pursuant to Section 8.1 hereof, if
requested by the Holders holding a Majority of the Registrable Securities, the
Company may enter into an underwriting agreement with the managing underwriter
selected for such underwriting by Holders holding a Majority of the Registrable
Securities requested to be included in such underwriting. Such managing
underwriter(s) shall be satisfactory to the Company and each Holder and such
agreement shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in agreements of that type used by the managing underwriter. The
Holders may be parties to any
underwriting agreement relating to an underwritten sale of their Registrable
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such Holders. Such Holders shall not be required to make any representations
or warranties to or agreements with the Company or the underwriters except as
they may relate to such Holders and their intended methods of distribution.
(k) Subject to the provisions of Section 8.2(a) or (b), upon the
written request therefor by any Holder(s), the Company may include in the
registration statement any other securities of the Company held by such
Holder(s) as of the date of filing of such registration statement, including
without limitation, restricted shares of Common Stock, options, warrants or any
other securities convertible into shares of Common Stock.
(l) For purposes of this Section 8.3, the term "Majority" in reference
to the Holders of Series A Stock or Registrable Securities, shall mean in excess
of fifty percent (50%) of the outstanding Series A Stock or Registrable
Securities that (i) are not held by the Company, an affiliate, officer,
creditor, employee or agent thereof or any of their respective affiliate's,
members of their family, persons acting as nominees or in conjunction therewith
or (ii)have not been resold to the public pursuant to a registration statement
filed with the Commission under the Act.
8.4 "No Action" Letter: Opinion of Counsel. No Holder shall have
registration rights under this Section with respect to any sales proposed by
them of shares as to which sales (i) a "no action" letter is received from the
SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required, provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
8.5. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such Registration Statement and prospectuses then in their possession
or under their control.
8.6. Cooperation of Holders. The Company shall be entitled to require
that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
8.7. Expenses. The Company will bear all the expenses in connection
with any Registration Statement under this Section 8 (including the fees and
expenses of a single counsel to the Holders) other than transfer taxes payable
on the sale of such shares and fees and commissions of brokers, dealers and
underwriters.
8.8. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
SECTION 9. Definitions.
9.1 "Original Date Of Issuance" of any share of Series A Stock means
the date on which: (a) executed conversion election form and an original
convertible note has been received by the Company, or (b) the consideration for
that share has otherwise been fully paid by the initial purchaser.
9.2 "Original Issue Price" means, with respect to Series A Stock,
Three Dollars ($ 3.00) per share.