STATEMENT PURSUANT TO SECTION 10-602
OF THE ARIZONA BUSINESS CORPORATION ACT OF
AUTO NETWORK GROUP, INC.
We, Mike Stuart and Mark Moldenhauer, being the President and Secretary,
respectively, of AUTO NETWORK GROUP, INC., a corporation organized and existing
under the laws of Arizona (the "Corporation"), DO HEREBY CERTIFY that, pursuant
to authority conferred upon the Board of Directors by the Articles of
Incorporation and Section 10-602 of the Arizona Business Corporation Act, the
Board of Directors, by unanimous written consent dated September 30, 1998,
adopted the following resolution providing for the issuance of a series of
Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors,
a series of Preferred Stock shall be established, the distinctive
designation of which shall be "Series B Convertible Preferred Stock" (such
shares sometimes referred to herein as the "Preferred Shares" or the
"Series B Preferred Stock), and the preferences and relative,
participating, optional or other special rights of Series B Preferred
Stock, and the qualifications, limitations or restrictions thereof shall
be as follows:
(I) NUMBER OF SHARES. The number of shares which shall constitute the
Series B Preferred Stock shall be 250,000 which number of shares may be
increased or decreased (but not below the number of shares thereof then
outstanding) from time to time by resolution of the Board of Directors.
(II) CONVERSION PROVISIONS. The holders of shares of Series B Preferred
Stock shall have conversion rights as follows (the "Conversion Rights"):
(a) RIGHT TO CONVERT.
(1) Each share of Series B Preferred Stock shall be
convertible, at the option of its holder, at any time, into a number of
shares of Common Stock of the Corporation at the initial conversion price
(the "Conversion Price") which shall be Sixty-Five Percent (65%) of the
average Market Price of the Common Stock for the 10 trading days
immediately prior to the Conversion Date (defined below), increased
proportionately for any reverse stock split and decreased proportionately
for any forward stock split or stock dividend. For purposes of this
Section II(a)(1), Market Price for any date shall be the closing bid price
of the Common Stock on such date, as reported by the National Association
of Securities Dealers Automated Quotation System ("NASDAQ") or the OTC
Bulletin Board, as the case may be.
(2) The minimum Conversion Price shall be $0.41 per share
provided that the Corporation continues to generate profits on a quarterly
basis, there are no material adverse changes, and the Corporation does not
raise any additional capital that will result in dilution of the per share
net tangible book value (except for options, warrants, and convertible
securities outstanding as of the date of the Offering Memorandum which
offers the Series B Preferred Stock.
(3) No fractional shares of Common Stock shall be issued upon
conversion of the Series B Preferred Stock, and in lieu thereof the number
of shares of Common Stock issuable for the Preferred Shares converted
shall be rounded up to the nearest whole number.
(4) In order to convert the Preferred Shares into shares of
Common Stock, the holder of the Preferred Shares shall (i) complete,
execute, and deliver to the Corporation the conversion certificate
attached hereto as Exhibit A (the "Notice of Conversion"); and (ii)
surrender the certificate or certificates representing the Preferred Share
being converted (the "Converted Certificate") to the Corporation. The
Notice of Conversion shall be effective and in full force and effect if
delivered to the Corporation by facsimile transmission at (602) 951-8375;
provided that the original Notice of Conversion and the Converted
Certificate are delivered to the Corporation within three (3) business
days thereafter at 8135 East Butherus, Suite 3, Scottsdale, Arizona 85260,
or such other address as the Corporation shall have. If such delivery is
made, the date on which notice of conversion is given (the "Conversion
Date") shall be deemed to be the date set forth therefor in the Notice of
Conversion; and the person or persons entitled to receive the shares of
Common Stock issuable upon conversion shall be treated for all purposes as
the record holder or holders of such shares of Common Stock as of the
Conversion Date. If the original Notice of Conversion and the Converted
Certificate are not delivered to the Corporation within three (3) business
days following the Conversion Date, the Notice of Conversion shall become
null and void as if it were never given and the Corporation shall, within
two (2) business days thereafter, return to the holder by overnight
courier any
Converted Certificate that may have been submitted in connection with any
such conversion. In the event that any Converted Certificate submitted
represents a number of Preferred Shares that is greater than the number of
such shares that is being converted pursuant to the Notice of Conversion
delivered in connection therewith, the Corporation shall deliver, together
with the certificates for the shares of Common Stock issuable upon such
conversion as provided herein, a certificate representing the remaining
number of Preferred Shares not converted.
(5) Upon receipt of a Notice of Conversion, the Corporation
shall absolutely and unconditionally be obligated to cause a certificate
or certificates representing the number of shares of Common Stock to which
a converting holder of Preferred Shares shall be entitled as provided
herein, which shares shall constitute fully paid and nonassessable shares
of Common Stock that are freely transferable on the books and records of
the Corporation and its transfer agents, to be issued to, delivered by
overnight courier to, and received by such holder by the third (3rd)
business day following the Conversion Date. Such delivery shall be made at
such address as such holder may designate therefor in its Notice of
Conversion or in its written instructions submitted together therewith.
(6) No less than 500 shares of Series B Preferred Stock may be
converted at any one time, unless the holder then holds less than 500
shares and converts all shares at that time.
(b) ADJUSTMENTS TO CONVERSION PRICE.
(1) RECLASSIFICATION, EXCHANGE, AND SUBSTITUTION. If the
Common Stock issuable on conversion of the Series B Preferred Stock shall
be changed into the same or a different number of shares of any other
class or classes of stock, whether by capital reorganization,
reclassification, reverse stock split or forward stock split, or stock
dividend or otherwise (other than a subdivision or combination of shares
provided for above), the holders of the Series B Preferred Stock shall,
upon its conversion, be entitled to receive, in lieu of the Common Stock
which the holders would have become entitled to receive but for such
change, a number of shares of such other class or classes of stock that
would have been subject to receipt by the holders if they had exercised
their rights of conversion of the Series B Preferred Stock immediately
before that change.
(2) REORGANIZATIONS, MERGERS, CONSOLIDATIONS, OR SALE OF
ASSETS. If at any time there shall be a capital reorganization of the
Corporation's common stock (other than a subdivision, combination,
reclassification, or exchange of shares provided for elsewhere in this
Section II) or merger of the Corporation into another corporation, or the
sale of the Corporation's properties and assets as, or substantially as,
an entirety to any other person, then, as a part of such reorganization,
merger, or sale, lawful provision shall be made so that the holders of the
Series B Preferred Stock shall thereafter be entitled to receive upon
conversion of the Series B Preferred Stock, the number of shares of stock
of other securities or property of the Corporation, or of the successor
corporation resulting from such merger, to which holders of the Common
Stock deliverable upon conversion of the Series B Preferred Stock would
have been entitled on such capital reorganization, merger, or sale if the
Series B Preferred Stock had been converted immediately before that
capital reorganization, merger, or sale to the end that the provisions of
this paragraph (b)(2) (including adjustment of the Conversion Price then
in effect and number of shares purchasable upon conversion of the Series B
Preferred Stock) shall be applicable after that event as nearly
equivalently as may be practicable.
(c) NO IMPAIRMENT. The Corporation will not, by amendment of its
Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, merger, dissolution, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Corporation, but will at all
times in good faith assist in the carrying out of all the provisions of
this Section II and in the taking of all such action as may be necessary
or appropriate in order to protect the Conversion Rights of the holders of
the Series B Preferred Stock against impairment.
(d) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Conversion Price for any shares of
Series B Preferred Stock, the Corporation at its expense shall promptly
compute such adjustment or readjustment in accordance with the terms
hereof and prepare and furnish to each holder of Series B Preferred Stock
affected thereby a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at
any time of any holder of Series B Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price at the time in
effect, and (iii) the number of shares of Common Stock and the amount, if
any, of other property which at the time would be received upon the
conversion of such holder's shares of Series B Preferred Stock.
(e) NOTICES OF RECORD DATE. In the event of the establishment by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, the
Corporation shall mail to each holder of Series B Preferred Stock at least
twenty (20) days prior to the date specified therein, a notice specifying
the date on which any such record is to be taken for the purpose of such
dividend or distribution and the amount and character of such dividend or
distribution.
(f) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation
shall at all times reserve and keep available out of its authorized but
unissued shares of Common Stock solely for the purpose of effecting the
conversion of the shares of the Series B Preferred Stock such number of
its shares of Common Stock as shall from time to time be sufficient, based
on the Conversion Price then in effect, to effect the conversion of all
then outstanding shares of the Series B Preferred Stock. If at any time
the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of the
Preferred Stock, then, in addition to all rights, claims, and damages to
which the holders of the Series B Preferred Stock shall be entitled to
receive at law or in equity as a result of such failure by the Corporation
to fulfill its obligations to the holders hereunder, the Corporation will
take any and all corporate or other action as may, in the opinion of
counsel, be helpful, appropriate, or necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purpose.
(g) NOTICES. Any notices required by the provisions hereof to be
given to the holders of shares of Series B Preferred Stock shall be deemed
given if deposited in the United States mail, postage prepaid and return
receipt requested, and addressed to each holder of record at its address
appearing on the books of the Corporation or to such other address of such
holder or its representative as such holder may direct.
(III) LIQUIDATION PROVISION. In the event of liquidation, dissolution, or
the winding up of the Corporation, whether voluntary or involuntary, any
holder of the Series B Preferred Stock shall, for each share of Series B
Preferred Stock, be entitled to receive a distribution of $10.00 out of
the assets of the Corporation, on an equal preference basis to the Series
A Preferred Stock, but prior to any distribution of assets with respect to
any other shares of capital stock of the Corporation.
(IV) REDEMPTION PROVISIONS. The Corporation shall have the right and
option upon notice to the holders of the Series B Preferred Stock to call,
redeem, and acquire any or all of the shares of Series B Preferred Stock
at a price equal to $11.00 per share, at any time to the extent such
shares have not previously converted to Common Stock pursuant to the terms
described above; provided, however, that the holders of the Series B
Preferred Stock shall, in any event, have the right during the 30-day
period immediately following the date of the Notice of Redemption, which
shall fix the date for redemption (the "Redemption Date"), to convert
their shares of Series B Preferred Stock in accordance with the terms
described above. If the shares are converted during such 30-day period,
this call option shall be deemed not to have been exercised by the
Corporation with respect to such shares so converted. Said Notice of
Redemption shall require the holders to surrender to the Corporation, on
or before the Redemption Date, to the Corporation's transfer agent, the
certificates representing the shares of Series B Preferred Stock to be
redeemed. Notwithstanding the fact the certificates representing the
shares called for redemption have not been surrendered for redemption and
cancellation on or after the Redemption Date, such shares shall be deemed
to be expired and all rights of the holders thereof shall cease and
terminate.
(V) VOTING PROVISIONS. Except as otherwise expressly provided or required
by the Arizona Business Corporation Act, the Series B Preferred Stock
shall have no voting rights.
(VI) PREEMPTIVE RIGHTS PROVISIONS. The Series B Preferred Stock shall no
preemptive rights.
(VII) NO OTHER POWERS, PREFERENCES, OR RIGHTS. The shares of Series B
Preferred Stock shall not have any relative powers, preferences and
rights, nor any qualifications, limitations or restrictions thereof, other
than as set forth herein or in the Statement Pursuant to Section 10-602 of
the Arizona Business Corporation Act.
(VIII) REGISTRATION OF COMMON STOCK ISSUABLE UPON CONVERSION. At its
expense, the Corporation will file within 30 days of the closing of an
offering, and will use its best efforts to cause to become effective by
acceleration as soon as practicable, a registration statement on Form S-1
under the Securities Act of 1933 and all applicable Blue Sky laws covering
the sale of the Common Stock issuable upon conversion of the Preferred
Stock. The registration shall not in any way limit a holder's rights in
connection with the shares of Common Stock issuable upon conversion of the
Preferred Stock from selling such shares (i) pursuant to Rule 144 or (ii)
pursuant to any other exemption from registration under the Securities Act
of 1933.
IN WITNESS WHEREOF, we have hereunto set our hands and seals as President
and Secretary, respectively, of the Corporation this 30th day of
September, 1998, and we hereby affirm that the foregoing Certificate is
our act and deed and the act and deed of the Corporation and that the
facts stated therein are true.
/S/ MIKE STUART /S/MARK MOLDENHAUER
Mike Stuart, President Mark Moldenhauer, Secretary
EXHIBIT A