EXHIBIT 4.6
CERTIFICATE OF DESIGNATION OF
SERIES D PREFERRED STOCK
OF
INTERCELL CORPORATION
It is hereby certified that:
1. The name of the Company (hereinafter called the "Company") is
Intercell Corporation, a Colorado corporation.
2. The Certificate of Incorporation of the Company authorizes the
issuance of Ten Million (10,000,000) shares of preferred stock, no par value per
share, and expressly vests in the Board of Directors of the Company the
authority provided therein to issue any or all of said shares in one (1) or more
series and by resolution or resolutions to establish the designation and number
and to fix the relative rights and preferences of each series to be issued.
3. The Board of Directors of the Company, pursuant to the authority
expressly vested in it as aforesaid, has adopted the following resolutions
creating a Series D issue of Preferred Stock:
RESOLVED, that one thousand and eighty (1,080) of the Ten Million
(10,000,000) authorized shares of Preferred Stock of the Company shall be
designated Series D Preferred Stock, no par value per share, and shall possess
the rights and preferences set forth below:
Section 1. Designation and Amount. The shares of such series shall have
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no par value and shall be designated as Series D Preferred Stock (the "Series D
Preferred Stock") and the number of shares constituting the Series D Preferred
Stock shall be one thousand and eighty (1,080). The Series D Preferred Stock
shall have a Deemed Purchase Price of Two Thousand, Five Hundred Dollars
($2,500) per share.
Section 2. Rank. The Series D Preferred Stock shall rank: (i) junior to
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any other class or series of outstanding Preferred Shares or series of capital
stock of the Company hereafter created specifically ranking by its terms senior
to the Series D Preferred Stock (collectively, the "Senior Securities"); (ii)
prior to all of the Company's Common Stock, no par value per share ("Common
Stock"); (iii) prior to any class or series of capital stock of the Company
hereafter created not specifically ranking by its terms senior to or on parity
with any Series D Preferred Stock of whatever subdivision (collectively, with
the Common Stock and the Existing Preferred Stock, "Junior Securities"); and
(iv) on parity with any class or series of capital stock of the Company
hereafter created specifically ranking by its terms on parity with
the Series D Preferred Stock ("Parity Securities") in each case as to
distributions of assets upon liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary (all such distributions being referred
to collectively as "Distributions").
Section 3. Dividends. The Series D Preferred Stock shall bear a six
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percent (6%), cumulative dividend, commencing January 1, 1998. If such dividend
is not declared and paid, for any reason, the Deemed Purchase Price of the
Series D Preferred Shares shall be increased by such accrued dividend and shall,
at the option of the holder, be convertible into common stock of the Company or
otherwise redeemed.
Section 4. Liquidation Preference.
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(a) In the event of any liquidation, dissolution or winding up of
the Company, either voluntary or involuntary, the Holders of shares of Series D
Preferred Stock shall be entitled to receive, immediately after any
distributions to Senior Securities required by the Company's Certificate of
Incorporation or any certificate of designation, and prior in preference to any
distribution to Junior Securities but in parity with any distribution to Parity
Securities, an amount per share equal to the sum of (i) the Series D Deemed
Purchase Price for each outstanding share of Series D Preferred Stock and (ii)
an amount equal to six percent (6%) of the Series D Demand Purchase Price per
annum for the period that has passed since January 1, 1998 to the date of the
event of liquidation, dissolution or winding up of the Company. If upon the
occurrence of such event, and after payment in full of the preferential amounts
with respect to the Senior Securities, the assets and funds available to be
distributed among the Holders of the Series D Preferred Stock and Parity
Securities shall be insufficient to permit the payment to such Holders of the
full preferential amounts due to the Holders of the Series D Preferred Stock and
the Parity Securities, respectively, then the entire assets and funds of the
Company legally available for distribution shall be distributed among the
Holders of the Series D Preferred Stock and the Parity Securities, pro rata,
based on the respective liquidation amounts to which each such series of stock
is entitled by the Company's Certificate of Incorporation and any certificate(s)
of designation relating thereto.
(b) Upon the completion of the distribution required by subsection
4(a), if assets remain in the Company, they shall be distributed to holders of
Junior Securities in accordance with the Company's Certificate of Incorporation
including any duly adopted certificate(s) of designation.
Section 5. Conversion. The record Holders of this Series D Preferred
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Stock shall have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. On and after January 1, 1999, each record
Holder of Series D Preferred Stock shall be entitled (at the times and in the
amounts set forth below) and subject to the Company's right of redemption set
forth in Section 6(a), at the office of the Company or any transfer agent for
the Series D Preferred Stock (the "Transfer Agent"), to convert (in multiples of
one (1) share of Preferred Stock) as follows:
4.6-2
Each share of Series D Preferred Shares shall convert into that number of
common shares of the Company which could be acquired at the then current
market price of its common shares multiplied by the yearly factor indicated
in the following table:
Year Factor
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1999 1.5
2000 1.3
2001 1.1
2002 1.0
2003 and thereafter 0.9
For this purpose market price shall be determined to be the average closing
price as published for the Company's common stock in daily financial
periodicals, if the common stock is listed for trading on any exchange or
on the NASDAQ Stock market, and if unlisted, then the average of the bid
and asked prices, for the thirty (30) trading day-period ending on the date
immediately preceding the date on which a Notice of Conversion is sent to
the Company by the holder of the Series D Preferred Shares; provided that
in no event may the total number of shares of the Company's common stock
issued upon conversion of the Series D Preferred Shares exceed ten percent
(10%) of the total number of shares of the Company's common stock
outstanding on the first date on which any holder of Series D Preferred
Shares sends a Notice of Conversion to the Company. In the event the total
number of shares, issuable upon conversion exceeds ten percent (10%) of the
then issued and outstanding common shares of the Company, the Company,
shall within ninety (90) days, of such event, redeem those Preferred Shares
which, if converted would exceed the ten percent (10%) limitation, at their
Deemed Purchase Price, plus all accrued dividends. The conversion price on
the applicable conversion date shall hereafter be referred to as the "Fixed
Conversion Price."
(b) Mechanics of Conversion. In order to convert Series D Preferred
Stock into full shares of Common Stock, the Holder shall (i) fax, on or prior to
11:59 p.m., Denver, Colorado time (the "Conversion Notice Deadline") on the date
of conversion, a copy of the fully executed notice of conversion ("Notice of
Conversion") to the Company at the office of the Company or its designated
transfer agent (the "Transfer Agent") for the Series D Preferred Stock stating
that the Holder elects to convert, which notice shall specify the date of
conversion, the number of shares of Series D Preferred Stock to be converted,
the applicable conversion price and a calculation of the number of shares of
Common Stock issuable upon such conversion (together with a copy of the front
page of each certificate to be converted) and (ii) surrender to a common courier
for delivery to the office of the Company or the Transfer Agent, the original
certificates representing the Series D Preferred Stock being converted (the
"Preferred Stock Certificates"), duly endorsed for transfer; provided, however,
that the Company shall not be obligated to issue certificates evidencing the
shares of Common Stock issuable upon such conversion unless either the Preferred
Stock Certificates are delivered to the Company or its Transfer Agent as
provided above, or the Holder notifies the Company or its Transfer Agent that
such certificates have been lost, stolen or destroyed (subject to the
requirements of
4.6-3
subparagraph (i) below). Upon receipt by Company of a facsimile copy of a
Notice of Conversion, Company shall immediately send, via facsimile, a
confirmation of receipt of the Notice of Conversion to Holder which shall
specify that the Notice of Conversion has been received and the name and
telephone number of a contact person at the Company whom the Holder should
contact regarding information related to the Conversion. In the case of a
dispute as to the calculation of the Conversion Rate, the Company shall promptly
issue to the Holder the number of Shares that are not disputed and shall submit
the disputed calculations to its outside accountant via facsimile within three
(3) days of receipt of Holder's Notice of Conversion. The Company shall cause
the accountant to perform the calculations and notify Company and Holder of the
results no later than forty-eight (48) hours from the time it receives the
disputed calculations. Accountant's calculation shall be deemed conclusive
absent manifest error.
(i) Lost or Stolen Certificates. Upon receipt by the Company of
evidence of the loss, theft, destruction or mutilation of any Preferred Stock
Certificates representing shares of Series D Preferred Stock, and (in the case
of loss, theft or destruction) of indemnity or security reasonably satisfactory
to the Company, and upon surrender and cancellation of the Preferred Stock
Certificate(s), if mutilated, the Company shall execute and deliver new
Preferred Stock Certificate(s) of like tenor and date. However, Company shalt
not be obligated to re-issue such lost or stolen Preferred Stock Certificates if
Holder contemporaneously requests Company to convert such Series D Preferred
Stock into Common Stock.
(ii) Delivery of Common Stock Upon Conversion. The Transfer Agent
or the Company (as applicable) shall, no later than the close of business on the
second (2nd) business day (the "Deadline") after receipt by the Company or the
Transfer Agent of a facsimile copy of a Notice of Conversion and receipt by
Company or the Transfer Agent of all necessary documentation duly executed and
in proper form required for conversion, including the original Preferred Stock
Certificates to be converted (or after provision for security or indemnification
in the case of lost or destroyed certificates, if required), issue and surrender
to a common courier for either overnight or (if delivery is outside the United
States) two (2) day delivery to the Holder at the address of the Holder as shown
on the stock records of the Company a certificate for the number of shares of
Common Stock to which the Holder shall be entitled as aforesaid.
(iii) No Fractional Shares. If any conversion of the Series D
Preferred Stock would create a fractional share of Common Stock or a right to
acquire a fractional share of Common Stock, such fractional share shall be
disregarded and the number of shares of Common Stock issuable upon conversion,
in the aggregate, shall be the next lower number of shares.
(iv) Date of Conversion. The date on which conversion occurs (the
"Date of Conversion") shall be deemed to be the date set forth in such Notice of
Conversion, provided (i) that the advance copy of the Notice of Conversion is
faxed to the Company before
4.6-4
11:59 p.m., Denver, Colorado time, on the Date of Conversion, and (ii) that the
original Preferred Stock Certificates representing the shares of Series D
Preferred Stock to be converted are surrendered by depositing such certificates
with a common courier, as provided above, and received by the Transfer Agent or
the Company as soon as practicable after the Date of Conversion. The person or
persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record Holder or Holders of
such shares of Common Stock on the Date of Conversion.
(c) Reservation of Stock Issuable Upon Conversion. 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 Series D Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all then outstanding
Series D Preferred Stock; 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 will
take such corporate 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.
(d) Adjustment to Conversion Rate.
(i) Adjustment to Fixed Conversion Price Due to Stock Split,
Stock Dividend, Etc. If, prior to the conversion of all of the Series D
Preferred Stock, the number of outstanding shares of Common Stock is increased
by a stock split, stock dividend, or other similar event, the Fixed Conversion
Price shall be proportionately reduced, or if the number of outstanding shares
of Common Stock is decreased by a combination or reclassification of shares, or
other similar event, the Fixed Conversion Price shall be proportionately
increased.
(ii) Adjustment Due to Merger, Consolidation, Etc. If, prior to
the conversion of all Series D Preferred Stock, there shall be any merger,
consolidation, exchange of shares, recapitalization, reorganization, or other
similar event, as a result of which shares of Common Stock of the Company shall
be changed into the same or a different number of shares of the same or another
class or classes of stock or securities of the Company or another entity or
there is a sale of all or substantially all the Company's assets, then the
Holders of Series D Preferred Stock shall thereafter have the right to receive
upon conversion of Series D Preferred Stock, upon the basis and upon the terms
and conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore issuable upon conversion, such stock, securities and/or
other assets which the Holder would have been entitled to receive in such
transaction had the Series D Preferred Stock been converted immediately prior to
such transaction, and in any such case appropriate provisions shall be made with
respect to the rights and interests of the Holders of the Series D Preferred
Stock to the end that the provisions hereof (including, without limitation,
provisions for the adjustment of the Conversion Price and of the number of
shares issuable upon conversion of the Series D Preferred Stock) shall
thereafter be applicable, as nearly as may be practicable in relation to any
securities thereafter deliverable upon the exercise hereof.
4.6-5
(iii) No Fractional Shares. If any adjustment under this
Section 5(f) would create a fractional share of Common Stock or a right to
acquire a fractional share of Common Stock, such fractional share shall be
disregarded and the number of shares of Common Stock issuable upon conversion
shall be the next lower number of shares.
Section 6. Redemption by Company.
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(a) Company's Right to Redeem at its Election. At any time, the
Company shall have the right, in its sole discretion, to redeem ("Redemption at
Company's Election"), from time to time, any or all of the Series D Preferred
Stock; provided (i) Company shall first provide six (6) months advance written
notice as provided in subparagraph 6(b)(ii) below. If the Company elects to
redeem some, but not all, of the Series D Preferred Stock, the Company shall
redeem a pro-rata amount from each Holder of the Series D Preferred Stock.
(i) Redemption Price At Company's Election. The "Redemption
Price At Company's Election" shall be the Deemed Purchase Price.
For purposes hereof, "Deemed Purchase Price" shall mean the Series D Deemed
Purchase Price (as defined in Section 4(a)) of the shares of Series D Preferred
Stock being redeemed pursuant to this Section 6(a), together with the accrued
but unpaid dividends (as defined in Section 4(a)).
(ii) Mechanics of Redemption at Company's Election. The
Company shall effect each such redemption by giving at least six (6) months
prior written notice ("Notice of Redemption At Company's Election") to the
Holders of the Series D Preferred Stock selected for redemption, at the address
and facsimile number of such Holder appearing in the Company's Series D
Preferred stock register and to the Transfer Agent, which Notice of Redemption
At Company's Election shall be deemed to have been delivered three (3) business
days after the Company's mailing (by overnight or two (2) day courier, with a
copy by facsimile) of such Notice of Redemption At Company's Election. Such
Notice of Redemption At Company's Election shall indicate (i) the number of
shares of Series D Preferred Stock that have been selected for redemption, (ii)
the date which such redemption is to become effective (the "Date of Redemption
At Company's Election") and (iii) the Redemption Price At Company's Election, as
defined in subsection (a)(i) above.
(b) Company Must Have Immediately Available Funds or Credit
Facilities. The Company shall not be entitled to send any Redemption Notice and
begin the redemption procedure under Section 6(a) and unless it has:
(i) the full amount of the redemption price in cash,
available in a demand or other immediately available account in a bank or
similar financial institution; or
(ii) immediately available credit facilities, in the full
amount of the redemption price with a bank or similar financial institution; or
4.6-6
(iii) an agreement with a standby underwriter willing to
purchase from the Company a sufficient number of shares of stock to provide
proceeds necessary to redeem any stock that is not converted prior to
redemption; or
(iv) a combination of the items set forth in (i), (ii) and
(iii) above, aggregating the full amount of the redemption price.
(c) Payment of Redemption Price.
(i) Each Holder submitting Preferred Stock being redeemed
under this Section 6 shall send their Series D Preferred Stock Certificates so
redeemed to the Company or its Transfer Agent, and the Company shall pay the
applicable redemption price to that Holder within five (5) business days of the
Date of Redemption at Company's Election. The Company shall not be obligated to
deliver the redemption price unless the Preferred Stock Certificates so redeemed
are delivered to the Company or its Transfer Agent, or, in the event one (1) or
more certificates have been lost, stolen, mutilated or destroyed, unless the
Holder has complied with Section 5(b)(i).
(d) Blackout Period. Notwithstanding the foregoing, the Company may
not either send out a redemption notice or effect a redemption pursuant to
Section 6(b) above during a Blackout Period (defined as a period during which
the Company's officers or directors would not be entitled to buy or sell stock
because of their holding of material non-public information), unless the Company
shall first disclose the non-public information that resulted in the Blackout
Period; provided, however, that no redemption shall be effected until at least
ten (10) days after the Company shall have given the Holder written notice that
the Blackout Period has been lifted.
Section 7. Voting Rights. The Holders of the Series D Preferred Stock
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shall have no voting power whatsoever, except as otherwise provided by the
Colorado Business Corporation Act ("Colorado Law"), and no Holder of Series D
Preferred Stock shall vote or otherwise participate in any proceeding in which
actions shall be taken by the Company or the shareholders thereof or be entitled
to notification as to any meeting of the shareholders.
To the extent that under Colorado Law the vote of the Holders of the Series
D Preferred Stock, voting separately as a class, is required to authorize a
given action of the Company, the affirmative vote or consent of the Holders of
at least a majority of the shares of the Series D Preferred Stock represented at
a duly held meeting at which a quorum is present or by written consent of a
majority of the shares of Series D Preferred Stock (except as otherwise may be
required under Colorado Law) shall constitute the approval of such action by the
class. To the extent that under Colorado Law the Holders of the Series D
Preferred Stock are entitled to vote on a matter with holders of Common Stock,
voting together as one (1) class, each share of Series D Preferred Stock shall
be entitled to a number of votes equal to the number of shares of Common Stock
into which it is then convertible using the record date for the taking of such
vote of stockholders as the date as of which the Conversion Price is calculated.
Holders of the Series D Preferred Stock also shall be entitled to notice of all
shareholder meetings or written
4.6-7
consents with respect to which they would be entitled to vote, which notice
would be provided pursuant to the Company's by-laws and applicable statutes.
Section 8. Protective Provision. So long as shares of Series D Preferred
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Stock are outstanding, the Company shall not without first obtaining the
approval (by vote or written consent, as provided by Colorado Law) of the
Holders of at least seventy-five percent (75%) of the then outstanding shares of
Series D Preferred Stock, and at least seventy-five percent (75%) of the then
outstanding Holders:
(a) alter or change the rights, preferences or privileges of the
Series D Preferred Stock so as to affect adversely the Series D Preferred Stock.
(b) create any new class or series of stock having a preference
over the Series D Preferred Stock with respect to Distributions (as defined in
Section 2 above) or increase the size of the authorized number of Series D
Preferred.
In the event Holders of at least seventy-five percent (75%) of the then
outstanding shares of Series D Preferred Stock and at least seventy-five percent
(75%) of the then outstanding Holders agree to allow the Company to alter or
change the rights, preferences or privileges of the shares of Series D Preferred
Stock, pursuant to subsection (a) above, so as to affect the Series D Preferred
Stock, then the Company will deliver notice of such approved change to the
Holders of the Series D Preferred Stock that did not agree to such alteration or
change (the "Dissenting Holders") and the Dissenting Holders shall have the
right for a period of thirty (30) business days to convert pursuant to the terms
of this Certificate of Designation as they exist prior to such alteration or
change or continue to hold their shares of Series D Preferred Stock.
Section 9. Status of Converted or Redeemed Stock. In the event any shares
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of Series D Preferred Stock shall be converted or redeemed pursuant to Section 5
or Section 6 hereof, the shares so converted or redeemed shall be canceled,
shall return to the status of authorized but unissued Preferred Stock of no
designated series, and shall not be issuable by the Company as Series D
Preferred Stock.
Section 10. Preference Rights. Nothing contained herein shall be
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construed to prevent the Board of Directors of the Company from issuing one (1)
or more series of Preferred Stock with dividend and/or liquidation preferences
junior to the dividend and liquidation preferences of the Series D Preferred
Stock.
Section 11. Registration Rights. The Series D Preferred Shares shall have
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registration rights permitting the resale of not more than twenty percent (20%)
of the outstanding Series D
4.6-8
Preferred Shares in connection with any registered, primary, firm commitment
underwriting of the Company's common stock, after December 31, 1998, unless
earlier converted or redeemed.
Signed on September 29, 1997
By: /s/ Paul H. Metzinger
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Paul H. Metzinger,
President & Chief Executive Officer
STATE OF COLORADO )
) SS.
COUNTY OF DENVER )
I, Kristi J. Kampmann, a Notary Public, hereby certify that on the 29th day
of September, 1997, Paul H. Metzinger, personally appeared before me, Kristi J.
Kampmann, who being by me first duly sworn declared that he is the person who
signed the foregoing, and that the statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on the date
hereinbefore mentioned.
My commission expires April 18, 2000.
/s/ Kristi J. Kampmann
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Notary Public
Kristi J. Kampmann
5250 S. Cherry Creek Dr. Apt. 18K
Denver, CO 80246
4.6-9