Exhibit 3(i).6
Certificate of the Powers, Designations,
Preferences and Relative, Participating,
Optional and Other Special Rights of the
SERIES D CONVERTIBLE
REDEEMABLE PREFERRED STOCK
OF
INTERNET COMMERCE CORPORATION
and the Qualifications, Limitations
or Restrictions Thereof, Which
Have Not Been Set Forth in the
Certificate of Incorporation
or in Any Amendment Thereto.
(Pursuant to Section 151 of the General
Corporation Law of the State of Delaware)
The undersigned, G. Michael Cassidy, President and Chief Executive Officer
of INTERNET COMMERCE CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (hereinafter the "Corporation"), DOES HEREBY
CERTIFY:
That pursuant to authority conferred upon the Board of Directors of the
Corporation by the Certificate of Incorporation and pursuant to the provisions
of Section 151 of the General Corporation Law of the State of Delaware, the
Board of Directors of the Corporation, by a meeting of the Board of Directors on
April 18, 2003, duly adopted the following resolution:
RESOLVED, that, pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation by the provisions of
its Certificate of Incorporation, the Board of Directors of the
Corporation hereby creates a series of Preferred Stock of the Corporation
to consist of 250 of the 5,000,000 shares of Preferred Stock, $.01 par
value per share, which the Corporation now has authority to issue, and the
Board of Directors of the Corporation hereby fixes the designations,
powers, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations or restrictions
thereof, of the shares of such series of Preferred Stock (in addition to
the designations, powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations or
restrictions thereof, set forth in the Certificate of Incorporation of the
Corporation which are applicable to Preferred Stock of all series) as
follows:
1. Designation and Number. The distinctive designation of the series shall
be Series D Convertible Redeemable Preferred Stock, par value $0.01 per share
(the "Series D Preferred"). The number of shares of Series D Preferred which the
Corporation is authorized to issue shall be two hundred fifty (250), which
number may be increased (but not above the total number of authorized shares of
Preferred stock of the Corporation) or decreased (but not below the number of
shares then outstanding) from time to time by the Board of Directors of the
Corporation.
2. Definitions. For purposes of this Certificate of Designations, the
following terms shall have the meanings indicated.
(a) The term "Senior Stock" means: (i) the Series C Convertible
Redeemable Preferred Stock, par value $0.01 per share (the "Series C
Preferred"); and (ii) any and all classes and series of preferred or special
stock which, by the terms of the Certificate of Incorporation (as the same may
be amended) or of the instrument by which the Board of Directors, acting
pursuant to authority granted in the Certificate of Incorporation (as the same
may be amended), shall designate the special rights and limitations of each such
class and series of preferred or special stock to be senior to the Series D
Preferred Stock with respect to the right of the holders thereof to participate
in the distribution of assets of the Corporation distributable to stockholders
upon any liquidation, dissolution, reorganization or winding-up of the
Corporation.
(b) The term "Junior Stock" means: (i) the Series A Convertible
Redeemable Preferred Stock, par value $.01 per share (the "Series A Preferred");
(ii) the Class A Common Stock, par value $.01 per share, (the "Common Stock");
(iii) the Class B Common Stock, par value $.01 per share; and (iv) all those
classes and series of preferred or special stock which, by the terms of the
Certificate of Incorporation (as the same may hereafter be amended) or of the
instrument by which the Board of Directors of the Corporation, acting pursuant
to authority granted in the Certificate of Incorporation (as the same may
hereafter be amended), shall designate the special rights and limitations of
each such class and series of preferred or special stock to be subordinate to
the Series D Preferred with respect to the right of the holders thereof to
participate in the distribution of assets of the Corporation distributable to
stockholders upon any liquidation, dissolution, reorganization or winding-up of
the Corporation.
(c) The term "Market Price per share of Common Stock" for any Trading
Day means: (i) the closing bid price for the Common Stock on such Trading Day as
published by the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") (or, if such prices are not so published by NASDAQ, the
average of the high and low bid prices for the Common Stock on such Trading Day,
as furnished by any New York Stock Exchange member firm selected from time to
time by the Corporation for such purpose); or (ii) if the Common Stock is then
listed or admitted to trading on a national securities exchange, the last sale
price regular way for the Common Stock on such Trading Day as reported in the
consolidated transaction reporting system for securities listed or traded on
such exchange, or, in case no such reported sale takes place on such Trading
Day, the reported closing bid price regular way for the Common Stock on such
Trading Day on the principal national securities exchange on which the Common
Stock is then listed or admitted to trading.
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(d) The term "Trading Day" shall mean any day on which trading takes
place on the principal market on which the Common Stock trades, or, if the
Common Stock is not listed for trading on any recognized market or exchange, a
day on which a sale transaction occurs with respect to such Common Stock.
3. Dividends. Each holder of Series D Preferred shall be entitled to
receive, when, as, and if declared by the Board of Directors, out of any funds
legally available for such use, such dividends which the Board of Directors may
determine from time to time in its sole discretion. No dividends or
distributions may be made to holders of Junior Stock prior to the moment the
Series D Preferred have been redeemed or converted. Dividends or distributions
can only be paid to holders of shares on parity with the Series D Preferred if
also paid to the holders of Series D Preferred at the same time.
4. Liquidation Preference.
(a) In General. In the event of any voluntary or involuntary
liquidation, dissolution, reorganization or winding-up (each, a "Liquidation")
of the Corporation, the holders of Series D Preferred shall be entitled to have
set apart for them or to be paid out of the assets of the Corporation (after
provision for the holders of Senior Stock but before the holders of Junior
Stock) an amount in cash equal to, and in no event more than, $1,000 per share
of Series D Preferred plus a sum of money equal to all dividends accrued and
unpaid thereon up to the date that payment is made available to the holders of
Series D Preferred (the "Liquidation Amount"). After the full Liquidation Amount
has been paid to, or determined and set apart for the Series D Preferred Stock
and all other series of Preferred Stock of equal ranking with the Series D
Preferred (the "Parity Stock"), if any, the remaining assets of the Corporation
available for distribution to stockholders shall be distributed to the holders
of Junior Stock as their interests may appear.
(b) Insufficient Funds. If, upon such Liquidation, the assets of the
Corporation available for distribution to the holders of its stock shall be
insufficient to permit the distribution in full of the amounts receivable as
aforesaid by the holders of Series D Preferred, then all such assets of the
Corporation then remaining shall be distributed ratably among the holders of
Series D Preferred and any Parity Stock, in proportion to the amounts which each
would have been entitled to receive if such assets were sufficient to permit
distribution in full as aforesaid.
(c) Events Not Triggering Liquidation. Neither the consolidation nor
merger of the Corporation nor the sale, lease or transfer by the Corporation of
all or any part of its assets shall be deemed to be a Liquidation for the
purposes of this Section 4, and the Series D Preferred Stock shall be entitled
only to (i) the rights provided in any agreement or plan governing the
reorganization or other consolidation, merger or sale of assets transaction,
(ii) the rights contained in the Delaware General Corporation Law and (iii) the
rights contained in other Sections hereof.
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5. Voting.
(a) Voting; Generally. Except as otherwise required by law or as
provided herein, a holder of Series D Preferred shall be entitled:
(i) for each share of Series D Preferred held, to the number of votes per share
equal to the number of whole shares of Common Stock into which each share of
Series D Preferred is convertible as of the record date for the determination of
stockholders entitled to vote;
(ii) to vote on or consent to all matters upon which the holders of Common Stock
are entitled to vote or consent; and
(iii) to notice of any stockholders meeting in accordance with the By-laws of
the Corporation.
(b) Fractional Votes. Fractional votes shall not be permitted and any
fractional voting rights resulting from the above formula (after aggregating all
shares of Series D Preferred held by each holder) shall be rounded to the
nearest whole number (with one-half being rounded upward).
(c) Class Voting Rights.
(i) Except as otherwise provided in the Certificate of
Incorporation or as expressly required by law, the holders of Series D
Preferred, the holders of Common Stock and the holders of any other class or
series of shares entitled to vote with the Common Stock, shall vote together as
a single class on all matters presented to stockholders and not as separate
classes.
(ii) Notwithstanding the foregoing, the Corporation shall not,
without the affirmative vote or consent of the holders of at least fifty percent
(50%) of all the outstanding shares of Series D Preferred, voting separately as
a class, amend, alter or repeal any provision of the Certificate of
Incorporation or the By-Laws of the Corporation so as to materially and
adversely affect the relative rights, preferences, qualifications, limitations
or restrictions of the Series D Preferred. For this purpose, the authorization
or issuance of any stock on parity with or junior to the Series D Preferred as
to the right to receive dividends or distributions upon a Liquidation shall not
be deemed so to adversely affect the Series D Preferred.
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6. Redemption.
(a) Redemption; Generally. Subject to the provisions of Section 6(b)
hereof, if at any time beginning on the day that is the second anniversary after
the first date on which the shares of Series D Preferred are issued, the Market
Price per share of Common Stock for thirty (30) consecutive trading days ending
no more than five (5) days prior to the giving of the Redemption Notice pursuant
to Section 6(b) hereof, is at least 200% of the Conversion Price then in effect,
the Corporation, at its option, may (except as otherwise provided in Section 7
hereof) redeem, in whole or in part, the Series D Preferred at the Liquidation
Amount (as defined in Section 4(a) hereof), provided that the shares of Common
Stock issuable upon conversion of the Series D Preferred pursuant to Section 7
hereof are then registered for resale pursuant to an effective registration
statement under the Securities Act of 1933, as amended.
(b) Redemption Notice. Not less than fifteen (15) and no more than
forty-five (45) days prior to the date fixed for any redemption of the Series D
Preferred, a notice (a "Redemption Notice") specifying the time, date and place
of the redemption (the "Redemption Date") and the Liquidation Amount shall be
given by mail to the holders of record of the shares of Series D Preferred to be
redeemed at their respective addresses as shown on the stock records of the
Corporation. If less than all of the Series D Preferred then outstanding are to
be redeemed, the Redemption Notice mailed to each holder of shares of Series D
Preferred to be redeemed shall identify the shares of Series D Preferred held by
such holder to be redeemed. Any failure to mail such Redemption Notice or any
defect therein or in the mailing thereof shall not affect the validity of the
proceedings for such redemption except as to a holder (i) to whom the
Corporation has failed to mail such notice or (ii) whose notice was defective.
An affidavit of the Secretary of the Corporation (or of a transfer agent for the
Series D Preferred, if one has been appointed) that the Redemption Notice has
been mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. The Redemption Notice shall also clearly state the date and time
by which the holders of the Series D Preferred must exercise any conversion
rights under Section 7 hereof with respect to any shares being called for
redemption.
(c) Termination of Rights Upon Redemption.
(i) From and after the Redemption Date (unless default be made by
the Corporation in providing moneys for the payment of the redemption price),
all dividends on shares of Series D Preferred thereby called for redemption
shall cease to accrue, and all rights of the holders thereof as stockholders of
the Corporation (except the right to receive payment of the Liquidation Amount)
shall cease.
(ii) If the Corporation shall, with respect to shares of Series D
Preferred called for redemption, irrevocably deposit, in trust for the account
of the holders of shares of Series D Preferred to be redeemed, a sum sufficient
to redeem such shares upon surrender of certificates therefor, then such shares
which have been called for redemption shall not be deemed to be outstanding
shares for the purpose of voting or determining the total number of shares
entitled to vote on any matter on and after the date the Redemption Notice has
been sent to holders thereof and such deposit has been made.
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(d) Unclaimed Redemption Amounts. In the event the holder of any such
shares of Series D Preferred shall not, within three (3) years after the
Redemption Date, claim the amount deposited for the redemption thereof, the
depositary shall, upon the request of the Corporation, pay over to the
Corporation such unclaimed amount. Any moneys so deposited by the Corporation
which shall not be required for redemption because of the exercise of any right
of conversion subsequent to the date of the deposit, and any interest accrued on
any moneys so deposited, shall be repaid to the Corporation upon request.
(e) Delivery of Liquidation Amount. From and after the Redemption Date,
the Corporation shall, at the place specified in the Redemption Notice, upon
presentation and surrender to the Corporation by the holder thereof of one or
more certificates representing shares of Series D Preferred to be redeemed,
deliver or cause to be delivered to or upon the written order of such holder a
sum in cash equal to the Liquidation Amount of the shares of such holder to be
redeemed, together with, if the certificate(s) presented and surrendered by such
holder represent a greater number of shares than the number of shares to be
redeemed from such holder, one or more new certificates registered in the name
of such holder and representing the shares of Series D Preferred not redeemed.
(f) Status of Redeemed Shares. Shares of Series D Preferred redeemed
pursuant to this Section 6 or converted pursuant to Section 7 hereof shall
thereupon be deemed retired and shall resume the status of authorized but
unissued shares of Preferred Stock (without serial designation) and may, subject
to the provisions hereof, be reissued as shares of Series D Preferred or shares
of any other series of Preferred Stock as determined by the Board of Directors
of the Corporation.
7. Conversion.
(a) Conversion Generally; Notice of Conversion. Subject to the
provisions of Section 6 hereof regarding redemption and to the terms and
conditions of this Section 7, shares of Series D Preferred shall be convertible,
in whole or in part, at the option of the holder thereof (except that, in
respect of any such shares which shall have been called for redemption, such
option shall terminate at the close of business on the second full business day
prior to the Redemption Date unless the Corporation shall default in the payment
of the Liquidation Amount), into the number of whole shares (calculated to the
nearest whole share, with 5/10ths of a share being considered as nearer to the
next higher whole share) of fully paid and nonassessable Common Stock at the
then applicable Conversion Price (as defined below), each share of Series D
Preferred being taken at $1,000 for the purpose of such conversion, by surrender
of a certificate or certificates for shares of Series D Preferred so to be
converted at the principal place of business of the Corporation to the attention
of the Secretary (or at such other place or places, or to such other person's
attention, as may be designated by the Corporation) at any time during usual
business hours, together with written notice (a "Conversion Notice") that the
holder elects to convert all such shares of Series D Preferred, or a stated
number of shares thereof, in accordance with the provisions of this Section 7.
Such Conversion Notice shall also state the name or names (with addresses) in
which the certificate or certificates for Common Stock shall be issued. The date
on which a Conversion Notice is given to the Company shall be deemed to be the
date set forth therefor in the Conversion Notice (the "Conversion Date").
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(b) Delivery of Converted Securities. As promptly as practicable after
the Conversion Date, the Corporation shall deliver or cause to be delivered to
or upon the written order of such holder one or more certificates representing
the number of shares of Common Stock issuable upon such conversion, issued in
such name or names as such holder may direct, together with, if the
certificate(s) surrendered evidence a greater number of shares than the number
of shares to be converted, one or more certificates evidencing the shares of
Series D Preferred not to be converted. On each Conversion Date, all rights of
the converting holder as a holder of the shares of Series D Preferred
surrendered for conversion shall cease and the person or persons in whose name
or names the certificate(s) for the shares of Common Stock issuable upon
conversion are to be issued shall be treated for all purposes as having become
the record holder or holders thereof at such time.
(c) Last Day of Conversion. If the last day for the exercise of the
conversion option be, in the jurisdiction where the principal place of business
of the Corporation (or other place designated by the Corporation as a place for
conversion of shares of Series D Preferred) is located, a Saturday, Sunday or
legal holiday, then such conversion option may be exercised, at the conversion
price in effect on such last day, upon the next succeeding day not a Saturday,
Sunday or legal holiday in such jurisdiction.
(d) Conversion Price. The conversion price for the shares of Series D
Preferred shall be $1.30 per share (the "Conversion Price"); provided that, if
adjustment of the Conversion Price is required pursuant to Section 7(e) hereof,
the Conversion Price shall be such adjusted price.
(e) Adjustment of Conversion Price. In case any of the following shall
occur (each, a "Conversion Adjustment Event"):
(i) any reclassification or change in the outstanding shares of
Common Stock (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 subdivision or
combination);
(ii) any consolidation or merger to which the Corporation is a
party (other than a merger in which the Corporation is the surviving corporation
and which does not result in any reclassification of, or change in, the
outstanding shares of Common Stock); or
(iii) any sale or conveyance to another corporation, entity or
person of the property of the Corporation as an entirety or substantially as an
entirety, other than a sale/leaseback, mortgage or other similar financing
transaction,
then, in each such case, appropriate provision shall be made, effective as of
the effective date of any Conversion Adjustment Event, as the case may be,
whereby the holders of Series D Preferred then outstanding shall have the right
to convert such shares of Series D Preferred into the kind and amount of shares
of stock, other securities or property, including cash, which would have been
receivable upon such Conversion Adjustment Event by a holder of the number of
shares of Common Stock which would have been issuable upon conversion of the
shares of Series D Preferred immediately prior to such Conversion Adjustment
Event. In connection with any provision made pursuant to the terms of the
preceding sentence, provision shall also be made
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for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 7(d). The above provisions of this
Section 7(d) shall similarly apply to successive Conversion Adjustment Events.
(f) Decision of the Board of Directors Is Binding. Any determination as
to whether an adjustment in the Conversion Price in effect hereunder is required
pursuant to Section 7(e) hereof, or as to the amount of any such adjustment, if
required, shall be final, binding and conclusive if made in good faith by the
Board of Directors of the Corporation.
(g) Notice of Adjustments. Whenever a Conversion Adjustment Event
occurs, then, in each such case, the Corporation shall mail, or cause to be
mailed, to the holders of Series D Preferred, of record not more than ten (10)
days before the date of mailing, a notice in writing stating the kind and amount
of shares of stock, other securities or property, including cash, which such
holders are entitled to receive as a result of such Conversion Adjustment Event,
and the facts on which such calculation is based. An affidavit of the Secretary
of the Corporation (or of a transfer agent for the Series D Preferred, if one
has been appointed) that any such notice has been mailed shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
(h) Fractional Shares. No fractional shares of stock shall be issued
upon the conversion of any Series D Preferred. If the number of shares of Common
Stock issuable upon any such conversion would include a fraction of a share,
such number shall be rounded up to the next whole number of shares of Common
Stock.
(i) No Adjustments for Dividends. Upon any conversion, no adjustment
shall be made for dividends on the Series D Preferred surrendered for conversion
or on the Common Stock delivered.
(j) Reservation of Shares. The Corporation will at all times reserve
and keep available out of its authorized but unissued capital stock, solely for
the purpose of issue upon conversion of the Series D Preferred, as provided in
this Section 7, such number of shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all outstanding shares of Series D
Preferred, and, upon the issuance thereof upon conversion, all in accordance
with the provisions hereof, such shares of Common Stock shall be duly and
validly issued, fully paid and nonassessable.
(k) Transfer Taxes. The issuance of certificates for shares of Common
Stock shall be made without charge for any tax in respect of such issuance.
However, if any such certificate is to be issued in a name other than that of
the holder of the converted Series D Preferred, the Corporation shall not be
required to issue or deliver any stock certificate or certificates unless and
until the holder has paid to the Corporation the amount of any tax which may be
payable in respect of any transfer involved in such issuance or shall establish
to the satisfaction of the Corporation that such tax has been paid or is not
due.
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(l) Notice Upon Setting a Record Date for Dividends or Distributions to
Holders of Common Stock. In the event of:
(i) any taking by the Corporation of a record of the holders of any
class of securities for the purpose of determining the holders of such
securities who are entitled to receive any dividend or other distribution on the
Common Stock or any right, warrant or option to subscribe for or purchase any
shares of Common Stock of any class; or
(ii) any reclassification or recapitalization of the capital stock
of the Corporation, any consolidation or merger of the Corporation with or into
another corporation, any transfer of all or substantially all of the assets of
the Corporation to any other corporation, entity or person, or any voluntary or
involuntary dissolution, liquidation, reorganization or winding-up of the
Corporation,
the Corporation shall mail to each holder of Series D Preferred at least ten
(10) days prior to the date specified in such notice, a notice specifying:
(A) the date on which any such record is to be taken for the purpose of
such dividend, distribution or rights;
(B) the date on which any such reclassification, recapitalization,
consolidation, merger, transfer, dissolution, liquidation,
reorganization or winding-up is expected to come effective; and
(C) the time, if any is to be fixed, as to when the holders of record of
Common Stock (or other securities) shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification,
recapitalization, consolidation, merger, transfer, dissolution,
liquidation, reorganization or winding-up.
8. General.
(a) If any other class or series of preferred or special stock or
series of Preferred Stock shall be created, whether ranking prior to or on a
parity with or junior to Series D Preferred as to dividends or in Liquidation,
either by or pursuant to authority granted in the Certificate of Incorporation
(as the same may hereafter be amended), nothing in this Certificate of
Designations shall prevent the holders of any such other class or series of
preferred or special stock or series of Preferred Stock from being given any
powers, preferences and relative, participating, optional and other special
rights authorized by law and the Certificate of Incorporation (as the same may
hereafter be amended).
(b) The section headings contained in this Certificate of Designations
are for reference purposes only and shall not affect in any way the meaning of
this Certificate of Designations.
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THE UNDERSIGNED President and Chief Executive Officer of Internet Commerce
Corporation hereby makes this certificate, declaring and certifying that this is
the duly authorized act and deed of the Corporation and the facts herein stated
are true, and accordingly have hereunto set his hand this 29th day of April,
2003.
INTERNET COMMERCE CORPORATION
By: /s/ G. Michael Cassidy
-----------------------------------
Name: G. Michael Cassidy
Title: President and Chief Executive
Officer
ATTEST:
By: /s/ Walter M. Psztur
------------------------------
Walter M. Psztur, Secretary
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