EXHIBIT 4.1
CERTIFICATE OF DESIGNATION
SERIES D CONVERTIBLE PREFERRED STOCK
OF
IMMTECH INTERNATIONAL, INC.
(Pursuant to Section 151)
The following is a statement of the designations, preferences,
voting powers, qualifications, special or relative rights and privileges of the
Series D Convertible Preferred Stock of IMMTECH INTERNATIONAL, INC. ("Company").
Article I. Designation and Amount. The shares of such series shall be designated
"Series D Convertible Preferred Stock" ("Series D Preferred Stock") and the
number of shares constituting such series shall be 200,000. The Company
previously authorized (i) 320,000 shares of its preferred stock pursuant to a
Certificate of Designation filed with the Secretary of State of the State of
Delaware on February 14, 2002 and has designated such shares therein as Series A
Convertible Preferred Stock ("Series A Preferred Stock"), (ii) 240,000 shares of
its preferred stock pursuant to a Certificate of Designation filed with the
Secretary of State of the State of Delaware on September 25, 2002 and has
designated such shares therein as Series B Convertible Preferred Stock ("Series
B Preferred Stock") and (iii) 160,000 shares of its preferred stock pursuant to
a Certificate of Designation filed with the Secretary of State of the State of
Delaware on June 6, 2003 and has designated such shares therein as Series C
Convertible Preferred Stock ("Series C Preferred Stock").
Notwithstanding anything to the contrary contained herein, in the
Certificate of Designation Series A Convertible Preferred Stock ("Series A
Certificate of Designation"), in the Certificate of Designation Series B
Convertible Preferred Stock ("Series B Certificate of Designation") or in the
Certificate of Designation Series C Convertible Preferred Stock ("Series C
Certificate of Designation"), except as may be specifically provided for herein,
in the Series A Certificate of Designation, Series B Certificate of Designation,
Series C Certificate of Designation or waived or consented to by the series of
preferred stock to be charged as provided for herein or in the Series A
Certificate of Designation, Series B Certificate of Designation or Series C
Certificate of Designation, as the case may be, the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and this Series D Preferred
Stock are to be pari passu in all respects as to rights of payment and
distribution (whether in cash, in kind or in other property or securities),
whether by way of dividend, upon liquidation, or otherwise, and all such
payments and distributions shall be made to the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock pari
passu and simultaneously by the Company. To the extent any payment is
insufficient to fully discharge the obligations of the Company to Series D
Preferred Stock hereunder and under the Series A Certificate of Designation,
Series B Certificate of Designation and Series C Certificate of Designation,
such payment will be made pro rata between each series by multiplying same by a
fraction, the numerator of which is the amount of the payment due such series,
and the denominator of which is the total payment due the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock.
Article II. Dividends. The holders of Series D Preferred Stock ("Series D
Preferred Stockholders") shall be entitled to receive semi-annually, on April 15
and October 15 of each year until such Series D Preferred Stock is either
converted or redeemed pursuant to this Certificate of Designation, dividends at
the rate of 6% per annum on the stated value of $25.00 per share. All dividends
declared upon the Series D Preferred Stock shall be declared pro rata per share
and shall accrue daily through the day immediately before the date of conversion
or redemption thereof. At the Company's option, dividends may be paid in cash or
Common Stock. In the event dividends are paid in Common Stock, the value of the
Common Stock for this purpose is to be the 10-day volume-weighted average of the
closing sale price of the Company's Common Stock as reported by the primary
stock exchange on which such stock is listed or traded, or if not so listed or
traded, then as determined in good faith by the Board of Directors ("Common
Stock Price").
Article III. Liquidation, Dissolution or Winding Up. (a) In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
before any distribution or payment is made to any holders of Common Stock or any
other class or series of capital stock of the Company designated to be junior to
the Series D Preferred Stock ("Junior Stock") and subject to the liquidation
rights and preferences of any class or series of preferred stock designated in
the future to be senior to ("Senior Stock"), or on a parity with, the Series D
Preferred Stock with respect to liquidation preferences, the holders of each
share of Series D Preferred Stock shall be entitled, pari passu with each other
and with the holders of each share of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock as to right of payment, to be paid
first out of the assets of the Company available for distribution to holders of
the Company's capital stock of all classes whether such assets are capital,
surplus or earnings ("Available Assets"), an amount equal to $25.00 per share
plus all accrued but unpaid dividends ("Liquidation Price"). If, upon any such
liquidation, dissolution or winding up of the Company, the remaining assets of
the Company available for distribution to its stockholders after payment in full
of amounts required to be paid or distributed to holders of Senior Stock shall
be insufficient to pay the holders of shares of Series D Preferred Stock the
full amount to which they shall be entitled, the holders of shares of Series D
Preferred Stock, together with the holders of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and any class of stock ranking on
liquidation on a parity with the Series D Preferred Stock, shall share ratably
in any distribution of the remaining assets and funds of the Company in
proportion to the respective amounts which would otherwise be payable in respect
to the shares held by them upon such distribution if all amounts payable on or
with respect to said shares were paid in full.
(b) After the payment of all preferential amounts required to be paid to the
holders of Senior Stock and Series D Preferred Stock and any other series of
preferred stock upon the dissolution, liquidation or winding up of the Company,
the holders of shares of Common Stock then outstanding shall be entitled to
receive the remaining assets and funds of the Company available for distribution
to its stockholders.
(c) The Liquidation Price set forth in this Article III shall be subject to
equitable adjustment whenever there shall occur a stock split, stock dividend,
combination, recapitalization, reclassification or other similar event involving
a change in the Series D Preferred Stock.
Article IV. Voting. (a) Each issued and outstanding share of Series D Preferred
Stock shall be entitled to 2.7778 times the number of votes as each share of
Common Stock is entitled to vote at each meeting of stockholders of the Company
with respect to any and all matters presented to the stockholders of the Company
for their action or consideration (subject to adjustment whenever there shall
occur a stock split, stock dividend, combination, recapitalization,
reclassification or other similar event involving a change in the Series D
Preferred Stock). Except as provided by law or by the provisions establishing
any other series of preferred stock, Series D Preferred Stockholders and holders
of any other outstanding preferred stock shall vote together with the holders of
Common Stock as a single class.
(b) The Company shall not amend, alter or repeal the preferences, special rights
or other powers of the Series D Preferred Stock so as to adversely affect the
Series D Preferred Stock, without the written consent or affirmative vote of the
holders of at least a majority of the then outstanding aggregate number of
shares of such affected Series D Preferred Stock, given in writing or by vote at
a meeting, consenting or voting (as the case may be) separately as a class;
provided; however; the Company may at any time without the vote or consent of
the Series D Preferred Stockholders or any other stockholder amend this Series D
Certificate of Designation to increase or reduce the number of shares designated
hereunder so long as any reduction does not result in the designation of less
Series D Preferred Stock than is issued and outstanding at the time of the
reduction.
Article V. Conversion. The number of shares of Common Stock to which a holder of
Series D Preferred Stock shall be entitled to receive upon conversion shall be
the product obtained by multiplying the Conversion Rate (as hereinafter defined)
by the number of shares of Series D Preferred Stock being converted at any time.
The conversion rate in effect at any time for the Series D Preferred Stock
("Conversion Rate") shall be the quotient obtained by dividing $25.00 plus any
accrued and unpaid dividends by the Conversion Price. The conversion price in
effect from time to time shall be $9.00 per share ("Conversion Price"), subject
to adjustment whenever there shall occur a stock split, stock dividend,
combination, recapitalization, reclassification or other similar event involving
a change in the Series D Preferred Stock.
(a) Optional Conversion. Each share of Series D Preferred Stock may be converted
at any time, at the option of the holder thereof, in the manner hereinafter
provided, into fully-paid and nonassessable shares of Common Stock, provided,
however, that on any redemption of any Series D Preferred Stock or any
liquidation of the Company, the right of conversion shall terminate at the close
of business 5 business days preceding the date fixed for such redemption or for
the payment of any amounts distributable on liquidation to the Series D
Preferred Stockholders.
1. In order to exercise an optional conversion, a Series D Preferred
Stockholder shall surrender a certificate or certificates representing the
shares to be converted to the transfer agent for the Series D Preferred
Stock (or, if no transfer agent be at the time appointed, then the Company
at its principal office), and shall give written notice to the Company
that the holder elects to convert the Series D Preferred Stock represented
by such certificates, or any number thereof. If so required by the
Company, certificates surrendered for conversion shall be duly endorsed or
accompanied by duly executed written instrument or instruments of
transfer, in form satisfactory to the Company. The date of receipt by the
transfer agent (or by the Company if the Company serves as its own
transfer agent) of the certificates and the notice shall be the Conversion
Date. As soon as practicable after receipt of such notice and the
surrender of the certificate or certificates for Series D Preferred Stock,
the Company shall cause to be issued and delivered to such holder a
certificate or certificates for the number of full shares of Common Stock
issuable on such conversion in accordance with the provisions hereof and
cash in respect of any fraction of a share of Common Stock otherwise
issuable upon such conversion.
(b) Mandatory Conversion. The Company may, at any time after January 1, 2005,
upon notice as below provided, require that any or all outstanding Series D
Preferred Stock be converted into Common Stock in the manner hereinafter
provided if the Common Stock into which the Series D Preferred Stock is
convertible is registered pursuant to an effective registration statement under
the Securities Act of 1933, as amended, by delivery to the Series D Preferred
Stockholders, for each share of Series D Preferred Stock converted, (i) the
number of shares of Common Stock determined by dividing the Liquidation Price by
the Conversion Price, if the closing sale price for the Company's common stock
exceeds $18.00 for 20 consecutive "trading days" (days the principal exchange on
which the Common Stock is listed or traded is open for business or, if the
Common Stock is no longer listed or traded on an exchange, business days) within
180 days prior to notice of conversion or (ii), if the requirements of (i) are
not met, the number of shares of Common Stock determined by dividing 110% of the
Liquidation Price by the Conversion Price.
1. In order to exercise a mandatory conversion, the Company must provide
all Series D Preferred Stockholders notice of the conversion at least 30
days prior to the Conversion Date, such notice to include the number of
shares to be converted and instructions for surrender of the certificate
or certificates representing the Series D Preferred Stock. Upon surrender
of the certificates to the transfer agent, the Company shall cause to be
issued and delivered to such holder a certificate or certificates for the
number of full shares of Common Stock issuable on such conversion in
accordance with the provisions hereof and cash in respect of any fraction
of a share of Common Stock otherwise issuable upon such conversion. The
Company shall not be obligated to issue such certificates unless
certificates evidencing the shares of Series D Preferred Stock being
converted are either delivered to the Company or any such transfer agent,
or the holder notifies the Company that such certificates have been lost,
stolen or destroyed and executes an agreement satisfactory to the Company
to indemnify the Company from any loss incurred by it in connection
therewith.
2. In the event the Company does not redeem all outstanding shares of
Series D Preferred Stock in a mandatory conversion, the Company shall
redeem pro-rata from each Series D Preferred Stockholder such number of
shares determined by dividing the number of shares to be redeemed by the
number of shares of Series D Preferred Stock then outstanding, multiplied
by the number of shares held by each Series D Preferred Stockholder.
(c) Fractional Shares. The Company shall not issue fractions of shares of Common
Stock upon conversion of Series D Preferred Stock or scrip in lieu thereof. If
any fraction of a share of Common Stock would, except for the provisions of this
Section V(c), be issuable upon conversion of any Series D Preferred Stock, the
Company shall in lieu thereof pay to the person entitled thereto an amount in
cash equal to the current value of such fraction, calculated to the nearest
one-hundredth (1/100) of a share, to be computed at the Common Stock Price on
the date of conversion.
(d) Reservation of Shares. The Company shall at all times reserve out of its
authorized but unissued shares of Common Stock such number of shares of Common
Stock as shall from time to time be sufficient to permit the conversion of all
of the Series D Preferred Stock then outstanding, and if at any time the number
of authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of Series D Preferred
Stock, the Company shall take such action as may be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purpose. All shares of Common Stock issued upon due
conversion of shares of Series D Preferred Stock shall be validly issued, fully
paid and non-assessable.
(e) Rights Upon Conversion. All shares of Series D Preferred Stock which shall
have been surrendered for conversion as herein provided shall no longer be
deemed to be outstanding and all rights with respect to such shares, including
the rights, if any, to receive notices and to vote, shall forthwith cease and
terminate except only the right of the holder thereof to receive shares of
Common Stock in exchange therefor and payment of any accrued and unpaid
dividends thereon.
IN WITNESS WHEREOF, Immtech International, Inc. has caused this
Certificate of Designation Series D Convertible Preferred Stock to be duly
executed by its President and Chief Executive Officer this 15th day of January,
2004.
IMMTECH INTERNATIONAL, INC.
By: /s/ T. Stephen Thompson
-----------------------------------
T. Stephen Thompson
President and Chief Executive
Officer