Exhibit 3.1
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF
7% SERIES D CONVERTIBLE PREFERRED STOCK
OF
MONSTERDAATA, INC.
MonsterDaata, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Company"), by its President and Chief Executive
Officer, does hereby certify that, pursuant to authority conferred upon the
Board of Directors by Article Four of the Certificate of Incorporation of the
Company, the Board of Directors of the Company, by unanimous written consent,
has duly adopted resolutions providing for the issuance of up to 360,000 shares
of 7% Series D Convertible Preferred Stock at an issuance price of $10.00 per
share (the "Original Purchase Price") and setting forth the voting powers,
designation, preferences and relative, participating, optional and other special
rights, and the qualifications, limitations and restrictions thereof, which
resolution is as follows:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Company in accordance with the provisions of its Certificate of
Incorporation, as amended, there be, and hereby is, created out of the class of
10,000,000 shares of preferred stock of the Company authorized by Article Four
of its Certificate of Incorporation, a series of preferred stock of the Company
with the following voting powers, designation, preferences and relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions:
1. Designation and Number of Shares. 360,000 shares of preferred
stock (the "Shares") are hereby designated as 7% Series D Convertible
Preferred Stock (the "Series D Preferred Stock").
2. Liquidation.
(a) Upon any liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary ("Liquidation"), the holders of record of the
shares of the Series D Preferred Stock shall be entitled to receive, immediately
after any distributions required by the Company's Certificate of Incorporation
and any certificate(s) of designation, powers, preferences and rights in respect
of any securities of the Company having priority over the Series D Preferred
Stock with respect to the distribution of the assets of the Company upon
Liquidation, and before and in preference to any distribution or payment of
assets of the Company or the proceeds thereof may be made or set apart with
respect to any securities of the Company over which the Series D Preferred Stock
has priority with respect to the distribution of the assets of the Company upon
Liquidation ("Junior Securities"), an amount in cash with respect to each share
of Series D Preferred Stock held by such holders, equal to $20.00 per share
(subject to adjustment in the event of stock splits, combinations or similar
events) plus all accrued and unpaid dividends on such share as of the date of
Liquidation. If, upon such Liquidation, the assets of the Company available for
distribution to the holders of Series D Preferred Stock and any securities of
the
Company having equal priority with the Series D Preferred Stock with respect to
the distribution of the assets of the Company upon Liquidation ("Parity
Securities") shall be insufficient to permit payment in full to the holders of
the Series D Preferred Stock and Parity Securities, then the entire assets and
funds of the Company legally available for distribution to such holders and the
holders of the Parity Securities then outstanding shall be distributed ratably
among the holders of the Series D Preferred Stock and Parity Securities based
upon the proportion the total amount distributable on each share upon
liquidation bears to the aggregate amount available for distribution on all
shares of the Series D Preferred Stock and of such Parity Securities, if any.
(b) Upon the completion of the distributions required by paragraph
(a) of this Section 2, if assets remain in the Company, they shall be
distributed to holders of Junior Securities in accordance with the Company's
Certificate of Incorporation and any applicable certificate(s) of designation,
powers, preferences and rights.
(c) For purposes of this Section 2, a merger or consolidation or a
sale of all or substantially all of the assets of the Company shall be
considered a Liquidation except in the event that in such a transaction, the
holders of the Series D Preferred Stock receive securities of the surviving
corporation having substantially similar rights as the Series D Preferred Stock.
3. Dividends.
(a) Subject to the rights of any other series of Preferred Stock
that may from time to time come into existence, the holders of shares of Series
D Preferred Stock shall be entitled to receive, out of any assets legally
available therefor, annual cumulative dividends on each share of Series D
Preferred Stock equal to 7% of the Original Purchase Price, which dividends
shall be payable in cash or additional shares of Series D Preferred Stock
(valued as determined below) as determined by the Board of Directors of the
Company in its sole discretion. The first such dividend shall be paid on July
31, 2002. The amount of such initial dividend, and any other dividend payable on
the Series D Preferred Stock for any partial dividend period, shall be computed
on the basis of a 360-day year consisting of twelve 30-day months. Dividends
will be payable to holders of record as they appear in the stockholder records
of the Company at the close of business on the applicable record date, which
shall be the 15th day of June of each year (the "Dividend Payment Date") or on
such other date designated by the Board of Directors for the payment of
dividends that is not more than 30 nor less than 10 days prior to the Dividend
Payment Date. With respect to any given year, no dividends (other than a
dividend payable solely in Common Stock, par value $.01 per share, of the
Company ("Common Stock")) shall be paid upon, or declared and set apart for, any
shares of Common Stock or any other securities of the Company over which the
Series D Preferred Stock has priority with respect to the payment of dividends
if the Board of Directors of the Company shall have failed duly and lawfully to
declare and pay in full a cash dividend to the holders of Series D Preferred
Stock with respect to such year in the amount described above. If such dividends
on the Series D Preferred Stock shall not have been paid or set apart in full
for the Series D Preferred Stock, the aggregate deficiency shall be cumulative
and shall be fully paid or set apart for payment prior to the payment of any
dividend by the Company (other than a dividend payable solely in Common Stock)
with respect to Common Stock or any other securities of the Company over which
the Series D Preferred Stock has priority with respect to the payment of
dividends. Accumulations of dividends on the Series D Preferred Stock shall not
bear interest. For purposes of the first
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sentence of this Section 3 only, shares of Series D Preferred Stock issued as
dividends shall be valued at the greater of the Original Purchase Price and the
aggregate current market value (as determined pursuant to Section 3(b)) of the
Common Stock into which such shares are convertible as of the date of
declaration of the dividend in question.
(b) For the purposes of any computation pursuant to Section 3(a),
the current market price per share of Common Stock at any date shall be deemed
to be the average of the daily closing prices for the 15 consecutive business
days prior to the day in question. The closing price for each day shall be the
last sales price or in case no sale takes place on such day, the average of the
closing high bid and low asked prices, in either case (i) as officially quoted
by the Nasdaq SmallCap Market or the Nasdaq National Market or such other market
on which the Common Stock is then listed for trading, or (ii) if, in the
reasonable judgment of the Board of Directors of the Company, the Nasdaq
SmallCap Market or the Nasdaq National Market is no longer the principal United
States market for the Common Stock, then as quoted on the principal United
States market for the Common Stock, as reasonably determined by the Board of
Directors of the Company, or (iii) if, in the reasonable judgment of the Board
of Directors of the Company, there exists no principal United States market for
the Common Stock, then as reasonably determined by the Board of Directors of the
Company.
4. Conversion Rights Each holder of record of shares of the Series D
Preferred Stock shall have the right to convert all or any part of such holder's
share of Series D Preferred Stock into Common Stock as follows:
(a) Optional Conversion. Subject to and upon compliance with the
provisions of this Section 4, the holder of any shares of Series D Preferred
Stock shall have the right at such holder's option, at any time or from time to
time, to convert any of such shares of Series D Preferred Stock into fully paid
and nonassessable shares of Common Stock determined by dividing (A) the
aggregate Original Purchase Price of such shares of Series D Preferred Stock by
(B) the Conversion Price (as defined in Section (4)(c) below) in effect on the
Conversion Date (as defined in Section 4(d) below) upon the terms hereinafter
set forth.
(b) Automatic Conversion. Each outstanding share of Series D
Preferred Stock shall automatically be converted, without any further act of the
Company or its stockholders, into fully paid and nonassessable shares of Common
Stock at the Conversion Price then in effect upon: (i) the closing of a public
offering of the Common Stock raising gross proceeds in excess of $20.0 million
at an issuance price in excess of $10.00 for each share of Common Stock, (ii)
the completion of a private placement of Common Stock raising gross proceeds in
excess of $20.0 million at an issuance price in excess of $10.00 for each share
of Common Stock (each, a "Qualified Offering"), or (iii) the conclusion of the
twentieth consecutive trading day with respect to which the closing bid price
for the Common Stock on a national securities exchange on which the Common Stock
is traded (including, without limitation, the Nasdaq National Market and the
Nasdaq Small Cap Market) was at least $10.00 per share; provided, however, that
(A) the issuance of any Common Stock pursuant to this Section 4(b)(iii) is
registered under the Securities Act of 1933, as amended, and (B) such Common
Stock is not subject to any "lock-up" agreement restricting the resale thereof.
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(c) Conversion Price. Each share of the Series D Preferred Stock
shall be convertible into that number of fully paid and non-assessable shares of
Common Stock of the Company equal to the Original Purchase Price divided by the
conversion price in effect at the time of conversion (the "Conversion Price"),
determined as hereinafter provided. The Conversion Price shall initially be
$1.25 per share; the number of shares of Common Stock into which each share of
Preferred Stock is convertible is herein referred to as the "Conversion Rate."
(d) Mechanics of Conversion. Before any holder of Series D Preferred
Stock shall be entitled to convert the same into shares of Common Stock, such
holder shall surrender the certificate or certificates therefor, duly endorsed,
at the office of the Company or of any transfer agent for the Series D Preferred
Stock, and shall give written notice to the Company at its principal corporate
office, of the election to convert the same and shall state therein the name or
names in which the certificate or certificates for shares of Common Stock are to
be issued. The Company shall, as soon as practicable thereafter, issue and
deliver at such office to such holder of Series D Preferred Stock, or to the
nominee or nominees of such holder, a certificate or certificates for the number
of shares of Common Stock to which such holder shall be entitled as aforesaid.
Conversion shall be deemed to have been effected on the date when delivery of
notice of an election to convert and certificates for shares is made or on the
date of the occurrence of the event specified in Section 4(b) as the case may
be, and such date is referred to herein as the "Conversion Date." All Common
Stock which may be issued upon conversion of the Series D Preferred Stock will,
upon issuance, be duly issued, fully paid and non-assessable and free from all
taxes, liens, and charges with respect to the issuance thereof. At all times
that any shares of Series D Preferred Stock are outstanding, the Company shall
have authorized and shall have reserved for the purpose of issuance upon such
conversion into Common Stock of all Series D Preferred Stock, a sufficient
number of shares of Common Stock to provide for the conversion of all
outstanding shares of Series D Preferred Stock at the then effective Conversion
Rate. Without limiting the generality of the foregoing, if, at any time, the
Conversion Price is decreased, the number of shares of Common Stock authorized
and reserved for issuance upon the conversion of the Series D Preferred Stock
shall be proportionately increased.
(e) Conversion Price Adjustments. The Conversion Price shall
be subject to the adjustment provisions of Section 6 below.
5. Ranking. Series D Preferred Stock shall, with respect to distribution
rights upon the Liquidation of the Company and dividend rights, rank (a) subject
to clauses (b) and (c), senior to the Common Stock, the Series A Convertible
Preferred Stock, par value $.01 per share, of the Company, the Series B
Convertible Preferred Stock, par value $.01 per share, of the Company and all
other preferred stock of the Company, (b) on a parity with the 7% Series C
Convertible Preferred Stock, par value $.01 per share, of the Company (the
"Series C Preferred Stock"), and (c) as applicable, junior to or on a parity
with such preferred stock of the Company the terms of which expressly provide
that such preferred stock will rank senior to or on a parity with Series D
Preferred Stock. Without the consent of holders of at least 50% of the then
outstanding shares of Series D Preferred Stock the Company shall not create,
authorize or issue any other series of preferred stock which rank senior to or
pari passu with the Series D Preferred Stock.
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6. Anti-Dilution Provisions. The Conversion Price in effect at any time
and the number and kind of securities issuable upon the conversion of the Series
D Preferred Stock shall be subject to adjustment from time to time upon the
happening of certain events as follows:
(a) Consolidation, Merger or Sale. If any consolidation or merger of
the Company with another person, or the sale, transfer or lease of all or
substantially all of its assets to another person shall be effected in such a
way that holders of shares of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for their shares of Common
Stock, then provision shall be made, in accordance with this Section 6(a),
whereby each holder of shares of Series D Preferred Stock shall thereafter have
the right to receive such securities or assets as would have been issued or
payable with respect to or in exchange for the shares of Common Stock into which
the shares of Series D Preferred Stock held by such holder were convertible
immediately prior to the closing of such merger, sale, transfer or lease, as
applicable. The Company will not effect any such consolidation, merger, sale,
transfer or lease unless prior to the consummation thereof the successor entity
(if other than the Company) resulting from such consolidation or merger or the
entity purchasing or leasing such assets shall assume by written instrument (i)
the obligation to deliver to the holders of Series D Preferred Stock such
securities or assets as, in accordance with the foregoing provisions, such
holders may be entitled to purchase, and (ii) all other obligations of the
Company hereunder. The provisions of this Section 6(a) shall similarly apply to
successive mergers, sales, transfers or leases.
(b) Common Stock Dividends, Subdivisions, Combinations, etc. In case
the Company shall hereafter (i) declare a dividend or make a distribution on its
outstanding shares of Common Stock in shares of Common Stock, (ii) subdivide or
reclassify its outstanding shares of Common Stock into a greater number of
shares, or (iii) combine or reclassify its outstanding shares of Common Stock
into a smaller number of shares, the Conversion Price in effect at the time of
the record date for such dividend or distribution or of the effective date of
such subdivision, combination or reclassification shall be adjusted so that it
shall equal the price determined by multiplying the Conversion Price by a
fraction, the denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such action, and the numerator of which shall
be the number of shares of Common Stock outstanding immediately prior to such
action. Such adjustment shall be made successively whenever any event listed
above shall occur.
(c) Discounted Warrants or Rights.
(i) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock
entitling them to subscribe for or purchase shares of Common Stock (or
securities convertible into Common Stock) at a price (the "Subscription
Price") (or having a conversion price per share) less than the current
market price on such record date, the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such issuance
by a fraction, the numerator of which shall be the sumof the number of
shares of Common Stock outstanding immediately prior to the issuance of
such rights or warrants and the number of shares of Common Stock which the
aggregate consideration to be received in respect of such rights or
warrants (including without limitation, consideration to be received upon
the issuance and/or exercise of such
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rights or warrants) would purchase at such current market price per share
of the Common Stock, and the denominator of which shall be the sum of the
number of shares of Common Stock outstanding immediately prior to such
issuance and the number of shares of Common Stock of the Company
deliverable upon the exercise of such rights or warrants at the initial
exercise price or rate.
(ii) Notwithstanding the provisions of Section 6(c)(i), in
case the Company shall fix a record date for the issuance of rights or
warrants to all holders of its Common Stock entitling them to subscribe
for or purchase shares of Common Stock (or securities convertible into
Common Stock) at a Subscription Price (or having a conversion price per
share) less than the Conversion Price as of such record date, the
Conversion Price shall be adjusted so that the same shall equal such
Subscription Price.
(iii) Adjustments to the Conversion Price pursuant to this
Section 6(c) shall be made successively whenever rights or warrants of the
type described in this Section 6(c) are issued and shall become effective
immediately after the record date for the determination of shareholders
entitled to receive such rights or warrants; and to the extent that shares
of Common Stock are not delivered (or securities convertible into Common
Stock are not delivered) after the expiration of rights or warrants in
respect of which an adjustment to the Conversion Price was made pursuant
to Section 6(c)(i), the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made upon the basis of
delivery of only the number of shares of Common Stock (or securities
convertible into Common Stock) actually delivered.
(d) Distributions of Certain Assets. In case the Company shall
hereafter distribute to the holders of its Common Stock evidences of its
indebtedness or assets (excluding cash dividends or distributions and dividends
or distributions referred to in Section 6(b) above) or subscription rights or
warrants (excluding those referred to in Section 6(c) above), then in each such
case the Conversion Price in effect thereafter shall be determined by
multiplying the Conversion Price in effect immediately prior thereto by a
fraction, the numerator of which shall be the total number of shares of Common
Stock outstanding multiplied by the current market price per share of Common
Stock, less the fair market value (as determined by the Company's Board of
Directors) of said assets or evidences of indebtedness so distributed or of such
rights or warrants, and the denominator of which shall be the total number of
shares of Common Stock outstanding multiplied by such current market price per
share of Common Stock. Such adjustment shall be made successively whenever such
a record date is fixed. Such adjustment shall be made whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
(e) Discounted Common Stock.
(i) Subject to Section 6(e)(iv), in case the Company shall
hereafter issue shares of its Common Stock for a consideration per share
(the "Offering Price") less than the current market price, the Conversion
Price shall be adjusted immediately thereafter so that it shall equal the
price determined by multiplying the Conversion Price in effect immediately
prior thereto by a fraction, the numerator of which shall be the sum
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of the number of shares of Common Stock outstanding immediately prior to
the issuance of such additional shares and the number of shares of Common
Stock which the aggregate consideration received for the issuance of such
additional shares would purchase at such current market price per share of
Common Stock, and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after the issuance of such
additional shares.
(ii) Notwithstanding the provisions of Section 6(e)(i),
subject to Section 6(e)(iv), in case the Company shall hereafter issue
shares of its Common Stock for an Offering Price less than the then
applicable Conversion Price, the Conversion Price shall be adjusted
immediately thereafter so that it shall equal such Offering Price.
(iii) Adjustments to the Conversion Price pursuant to this
Section 6(e) shall be made successively whenever an issuance of shares
triggering such an adjustment is made.
(iv) Notwithstanding anything to the contrary in this Section
6(e), no adjustment to the Conversion Price shall be made pursuant to this
Section 6(e) in the case of shares issued (A) in any of the transactions
described in Section 6(b) above, (B) upon exercise of options granted to
the Company's officers, directors, employees and consultants under a plan
or plans adopted by the Company's Board of Directors and approved by its
shareholders, if such shares would otherwise be included in this Section
6(e), (but only to the extent that the aggregate number of shares excluded
hereby and issued after the date hereof, shall not exceed 15% of the
Company's Common Stock outstanding, on a fully diluted basis, at the time
of any issuance), (C) upon exercise of options, warrants, convertible
securities and convertible debentures outstanding as of the date hereof,
(D) in respect of the conversion of the Shares, (E) to shareholders of any
corporation which merges into the Company in proportion to their stock
holdings of such corporation immediately prior to such merger, upon such
merger, (F) issued in a private placement through Commonwealth Associates,
L.P., as placement agent, or upon exercise or conversion of any securities
issued in or in connection with such a private placement (including agent,
consulting or advisory warrants), (G) issued in a private placement with
respect to which less than 1000 shares are issued or where the Offering
Price (as defined below) is at least 90% of the current market price, (H)
issued in a bona fide public offering pursuant to a firm commitment
underwriting, or (I) issued in connection with an acquisition of a
business or technology which has been approved by a majority of the
Company's outside directors but only if no adjustment is required pursuant
to any other specific subsection of this Section 6 (without regard to
Section 6(i) below) with respect to the transaction giving rise to such
rights.
(f) Discounted Convertible Stock.
(i) Subject to Section 6(f)(iv), in case the Company shall
hereafter issue any securities convertible into or exchangeable for its
Common Stock for a consideration per share of Common Stock (the "Exchange
Price") initially deliverable upon conversion or exchange of such
securities (determined as provided in Section 6 (h) below) less than the
current market price, the Conversion Price shall be adjusted
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immediately thereafter so that it shall equal the price determined by
multiplying the Conversion Price in effect immediately prior thereto by a
fraction, the numerator of which shall be the sum of the number of shares
of Common Stock outstanding immediately prior to the issuance of such
securities and the number of shares of Common Stock which the aggregate
consideration received for such securities would purchase at such current
market price per share of Common Stock, and the denominator of which shall
be the sum of the number of shares of Common Stock outstanding immediately
prior to such issuance and the maximum number of shares of Common Stock of
the Company deliverable upon conversion of or in exchange for such
securities at the initial conversion or exchange price or rate.
(ii) Notwithstanding the provisions of Section 6(f)(i),
subject to Section 6(f)(iv), in case the Company shall hereafter issue any
securities convertible into or exchangeable for its Common Stock for an
Exchange Price initially deliverable upon conversion or exchange of such
securities (determined as provided in Section 6(h) below) less than the
then applicable Conversion Price, the Conversion Price shall be adjusted
immediately thereafter so that it shall equal such Exchange Price.
(iii) Adjustments to the Conversion Price pursuant to this
Section 6(f) shall be made successively whenever an issuance of shares
triggering such an adjustment is made.
(iv) Notwithstanding anything to the contrary in this Section
6(f), no adjustment to the Conversion Price shall be made pursuant to this
Section 6(f) in the case of securities issued in transactions described in
Sections 6(c), 6(d) and 6(e)(iv)(A) through (H) above (with any reference
in Sections 6(e)(iv)(A) through (H) to price or quantity of shares issued
being understood, for purposes of this Section 6(f)(iv), to refer to the
aggregate price or quantity, as applicable, of the shares of Common Stock
into which such securities are convertible or exchangeable).
(g) Adjustment of Conversion Shares. Whenever the Conversion Price
is adjusted pursuant to Sections 6(b), (c), (d), (e) and (f) above and (k)
below, the number of Conversion Shares issuable upon conversion of the Series D
Preferred Stock shall simultaneously be adjusted by multiplying the number of
Conversion Shares initially issuable upon conversion of the Series D Preferred
Stock by the Conversion Price in effect on the date hereof and dividing the
product so obtained by the Conversion Price, as adjusted.
(h) Computation of Certain Consideration. For purposes of any
computation respecting consideration received pursuant to Sections 6(e) and
(f) above, the following shall apply:
(i) in the case of the issuance of shares of Common Stock for
cash, the consideration shall be the amount of such cash, provided that in
no case shall any deduction be made for any commissions, discounts or
other expenses incurred by the Company for any underwriting of the issue
or otherwise in connection therewith;
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(ii) in the case of the issuance of shares of Common Stock for
a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors of the Company
(irrespective of the accounting treatment thereof), whose determination
shall be conclusive; and
(iii) in the case of the issuance of securities convertible
into or exchangeable for shares of Common Stock, the aggregate
consideration received therefor shall be deemed to be the consideration
received by the Company for the issuance of such securities plus the
additional minimum consideration, if any, to be received by the Company
upon the conversion or exchange thereof (the consideration in each case to
be determined in the same manner as provided in clauses (i) and (ii) of
this Section 6(h)).
(i) Computation of Market Price. For the purpose of any computation
under Sections 6 (c), (d), (e) and (f) above, the current market price per share
of Common Stock at any date shall be deemed to be the average of the daily
closing prices for the 30 consecutive business days prior to the day in
question. The closing price for each day shall be the last sales price or in
case no sale takes place on such day, the average of the closing high bid and
low asked prices, in either case (i) as officially quoted by the Nasdaq SmallCap
Market or the Nasdaq National Market or such other market on which the Common
Stock is then listed for trading, or (ii) if, in the reasonable judgment of the
Board of Directors of the Company, the Nasdaq SmallCap Market or the Nasdaq
National Market is no longer the principal United States market for the Common
Stock, then as quoted on the principal United States market for the Common
Stock, as reasonably determined by the Board of Directors of the Company, or
(iii) if, in the reasonable judgment of the Board of Directors of the Company,
there exists no principal United States market for the Common Stock, then as
reasonably determined by the Board of Directors of the Company.
(j) Notice of Adjustment. Whenever the Conversion Price is adjusted,
as herein provided, the Company shall promptly but no later than 10 days after
any request for such an adjustment by the Holder, cause a notice setting forth
the adjusted Conversion Price and adjusted number of Conversion Shares issuable
upon exercise of each share of Series D Preferred Stock, and, if requested,
information describing the transactions giving rise to such adjustments, to be
mailed to the Holders at their last addresses appearing in the Share Register,
and shall cause a certified copy thereof to be mailed to its transfer agent, if
any. The Company may retain a firm of independent certified public accountants
selected by the Board of Directors (who may be the regular accountants employed
by the Company) to make any computation required by this Section 6, and a
certificate signed by such firm shall be conclusive evidence of the correctness
of such adjustment.
(k) Receipt of Securities Other than Common Stock. In the event that
at any time, as a result of an adjustment made pursuant to Section 6(b) above,
the Holders of the Series D Preferred Stock thereafter shall become entitled to
receive any shares of the Company, other than Common Stock, thereafter the
number of such other shares so receivable upon conversion of the Series D
Preferred Stock shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect to
the Common Stock contained in Sections 6(a) to (h), inclusive above.
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(l) Waiver of Rights. Notwithstanding anything to the contrary
herein, in the event any of the anti-dilution rights set forth in Section 6 of
the Certificate of Designation, Preferences and Rights of the Series C Preferred
Stock are duly waived or modified by the holders thereof, the analogous rights
set forth in Section 6 hereof shall be deemed similarly waived or modified
without any further action on the part of the holders of Series D Preferred
Stock.
7. Voting Rights. Except as expressly provided to the contrary herein or
pursuant to applicable law, the holders of Series D Preferred Stock shall be
entitled to vote, together with the holders of Common Stock and other voting
securities as one class, on all matters as to which holders of Common Stock
shall be entitled to vote, in the same manner and with the same effect as such
Common Stock holders. In any such vote, each share of Series D Preferred Stock
shall entitle the holder thereof to the number of votes per share that equals
the number of whole shares of Common Stock into which each such share of Series
D Preferred Stock is then convertible.
8. Covenants of Company The Company covenants and agrees that, so long as
the Shares are outstanding, it will perform the obligations set forth in this
Section 8:
(a) Taxes and Levies. The Company will promptly pay and discharge
all taxes, assessments, and governmental charges or levies imposed upon the
Company or upon its income and profits, or upon any of its property, before the
same shall become delinquent, as well as all claims for labor, materials and
supplies which, if unpaid, might become a lien or charge upon such properties or
any part thereof; provided, however, that the Company shall not be required to
pay and discharge any such tax, assessment, charge, levy or claim so long as the
validity thereof shall be contested in good faith by appropriate proceedings and
the Company shall set aside on its books adequate reserves in accordance with
generally accepted accounting principles ("GAAP") with respect to any such tax,
assessment, charge, levy or claim so contested;
(b) Maintenance of Existence. The Company will do or cause to be
done all things reasonably necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises and comply with all laws
applicable to the Company, except where the failure to comply would not have a
material adverse effect on the Company;
(c) Maintenance of Property. The Company will at all times maintain,
preserve, protect and keep its property used or useful in the conduct of its
business in good repair, working order and condition, and from time to time make
all needful and proper repairs, renewals, replacements and improvements thereto
as shall be reasonably required in the conduct of its business;
(d) Insurance. The Company will, to the extent necessary for the
operation of its business, keep adequately insured by financially sound
reputable insurers, all property of a character usually insured by similar
corporations and carry such other insurance as is usually carried by similar
corporations;
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(e) Books and Records. The Company will at all times keep true
and correct books, records and accounts reflecting all of its business
affairs and transactions in accordance with GAAP; and
(f) Notice of Certain Events. The Company will give prompt written
notice (with a description in reasonable detail) to the holders of Series D
Preferred Stock in the event the Company shall:
(i) become insolvent or generally fail or be unable to pay, or
admit in writing its inability to pay, its debts as they become due;
(ii) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for the Company or
any of its property, or make a general assignment for the benefit of
creditors;
(iii) in the absence of such application, consent or acquiesce
in, permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Company or for any part of its
property; or
(iv) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Company, and, if such case or
proceeding is not commenced by the Company or converted to a voluntary
case, such case or proceeding shall be consented to or acquiesced in by
the Company or shall result in the entry of an order for relief.
9. Reservation of Shares. The Company shall at all times reserve and keep
available and free of preemptive rights out of its authorized but unissued
Common Stock, solely for the purpose of effecting the conversion of the Series D
Preferred Stock pursuant to the terms hereof, such number of its shares of
Common Stock (or other shares or other securities as may be required) as shall
from time to time be sufficient to effect the conversion of all outstanding
Series D Preferred Stock pursuant to the terms hereof. If at any time the number
of authorized but unissued shares of Common Stock (or such other shares or other
securities) shall not be sufficient to affect the conversion of all then
outstanding Series D Preferred Stock, the Corporation shall promptly take such
action as may be necessary to increase its authorized but unissued Common Stock
(or other shares or other securities) to such number of shares as shall be
sufficient for such purpose.
10. Miscellaneous.
(a) There is no sinking fund with respect to the Series D
Preferred Stock.
(b) The shares of the Series D Preferred Stock shall not have any
preferences, voting powers or relative, participating, optional, preemptive or
other special rights except as set forth above in this Certificate of
Designation, Preferences and Rights and in the Certificate of Incorporation of
the Company.
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(c) The holders of the Series D Preferred Stock shall be entitled to
receive all communications sent by the Company to the holders of the Common
Stock.
IN WITNESS WHEREOF, MonsterDaata, Inc. has caused this Certificate
to be signed by its President and Chief Executive Officer, on this 31st day of
July, 2001, and such person hereby affirms under penalty of perjury that this
Certificate is the act and deed of MonsterDaata, Inc. and that the facts stated
herein are true and correct.
MONSTERDAATA, INC.
By: /s/ Samuel B. Petteway, Jr
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Samuel B. Petteway, Jr.
President and Chief Executive Officer
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