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EXHIBIT 3.1(f)
POPMAIL.COM, INC.
CERTIFICATE OF DESIGNATION OF
SERIES E CONVERTIBLE PREFERRED STOCK
Pursuant to Section 401(3)(b) of the Business Corporation Act of the
State of Minnesota, PopMail.com, inc., formerly known as Cafe Odyssey, Inc. (the
"Company"), a corporation organized and existing under the Business Corporation
Act of the State of Minnesota, DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors of
the Company by the Articles of Incorporation of the Company, and in accordance
with the provisions of Section 401(3)(a) of the Business Corporation Act of the
State of Minnesota, the Board of Directors of the Company as of September 22,
1999, adopted the following resolution creating a series of preferred stock
designated as Series E Convertible Preferred Stock:
RESOLVED: That pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of its Articles of
Incorporation, as amended, a series of preferred stock, $.01 par value, to be
titled the "Series E Convertible Preferred Stock" (the "Preferred Shares") of
the Company is hereby created and designated. The number of shares of Preferred
Shares shall be 750,000 shares. The voting powers, preferences and relative,
participating, optional and other special rights of the Preferred Shares, and
the qualifications, limitations and restrictions thereof, are as follows:
1. Designation. The series of preferred stock established hereby
shall be designated the "Series E Convertible Preferred Stock" (and shall be
referred to herein as the "Preferred Shares") and the authorized number of
Preferred Shares shall be 750,000, subject to adjustment as hereinafter
provided.
2. Voting Rights. Holders of Preferred Shares shall have no vote on
any matters submitted to the holders of Common Stock. Without the affirmative
vote of the holders (acting together as a class) of at least a majority of
Preferred Shares at the time outstanding given in person or by proxy at any
annual or special meeting, or, if permitted by law, in writing without a
meeting, the Company shall not alter, change or amend the preferences or rights
of the Preferred Shares.
3. Dividends. There are no rights to dividends.
4. Liquidation Right and Preference. In the event of the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, the holders of Preferred Shares shall be entitled to receive in
cash, out of the assets of the Company, an amount equal to Two Dollars ($2.00)
per share for each outstanding Preferred Share (herein, "Liquidation Value"),
before any payments shall be made or any assets distributed to the holders of
Common Stock or any other class of shares of the Company ranking junior to
Preferred Shares. If, upon any liquidation, dissolution or winding up of the
Company, the assets of the Company are insufficient to pay the Liquidation
Value, the holders of such Preferred Shares shall share pro rata in any such
distribution in proportion to the full amounts to which they would otherwise be
respectively entitled. Following such payment to the holders of Preferred Shares
upon such liquidation, dissolution or a winding up of the Company, the holders
of Common Stock and Preferred Shares shall then share ratably in all the assets
of the Company thereafter remaining. For purposes of this joint distribution of
assets to the holders of Common Stock and the holders of Preferred Shares, each
holder of Preferred Shares should be regarded as owning that number of Common
Stock into which such Preferred Shares would then be convertible.
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5. Conversion Rights.
a. Conversion. The Company and holder of the Preferred Shares
shall be entitled to convert any or all of such Preferred Shares into shares of
Common Stock. The number of shares of Common Stock issuable upon such conversion
shall be determined as follows: (1) divide $2.00 by the lesser of (i) $2.00, or
(ii) seventy (70) percent of the average closing market price of the Company's
Common Stock during the ten (10) trading days immediately preceding the Filing
Date (as defined in Section 6 herein); and multiplying the quotient determined
in (1) by the number of Preferred Shares being converted.
b. Conversion Mechanics -- Holder. In order to exercise the
conversion privilege, a holder of Preferred Shares shall (1) notify the Company
in writing of such holder's intent to convert a specified portion of such shares
(the "Conversion Notice" and the date of such notice which shall be the same or
later than the date notice is given, the "Conversion Notice Date") and (2)
provide, on or prior to the Conversion Notice Date, to the Company at its
principal office the certificate evidencing the Preferred Shares being
converted, duly endorsed to the Company and accompanied by written notice to the
Company that the holder elects to convert a specified portion or all of such
Shares. Preferred Shares converted at the option of the Holder shall be deemed
to have been converted on the day of receipt by the Company of the certificate
representing such shares for conversion in accordance with the foregoing
provisions (the "Conversion Date"), and at such time the rights of the holder of
such Preferred Shares other than the right to receive shares of Common Stock
upon conversion of the Preferred Shares pursuant to the terms hereof, as such
holder, shall cease and such holder shall be treated for all purposes as the
record holder of Common Stock issuable upon conversion. As promptly as
practicable on or after the Conversion Date, the Company shall issue and mail or
deliver to such holder a certificate or certificates for the number of Common
Stock issuable upon conversion, computed to the nearest full shares, and a
certificate or certificates for the balance of Preferred Shares surrendered, if
any, not so converted into Common Stock.
c. Conversion Mechanics -- Company. At its election, the
Company may automatically convert the Preferred Shares. Notice of the conversion
to the holder shall be given by mailing via first-class mail a notice of the
Company's intent to convert a specified portion of such shares (the "Conversion
Notice") not less than ten (10) business days prior to the effectiveness of such
conversion. As promptly as practicable on or after such conversion by the
Company, the Company shall issue and mail or deliver to such holder a
certificate or certificates for the number of Common Stock issuable upon
conversion, computed to the nearest full shares, and a certificate or
certificates for the balance of Preferred Shares surrendered, if any, not so
converted into Common Stock.
6. Registration Rights. After May 1, 2000 (the "Filing Date"), the
Company shall, on a one-time basis, prepare and file a registration statement
under the 1933 Act covering the resale of the shares of Common Stock issued or
issuable upon conversion of the Preferred Shares. The Company shall bear all
expenses and fees incurred in connection with the preparation, filing, and
amendment of such registration statement, except that each holder of Preferred
Shares shall pay all fees, disbursements and expenses of any counsel or expert
retained by such holder and all underwriting discounts and commissions, filing
fees and any transfer or other taxes relating to the Shares included in the
Registration Statement. Each holder of preferred shares shall cooperate with the
Company in the preparation and filing of any Registration Statement, and in the
furnishing of information concerning the holder for inclusion therein, or in any
efforts by the Company to establish that the proposed sale is exempt under the
Securities Act of 1933 as to any proposed distribution.
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7. Other Terms of Series E Convertible Preferred Shares.
a. Consolidation, Merger, Exchange, etc. If any capital
reorganization or reclassification of the capital stock of the Company, or
consolidation or merger of the Company with another company, or the sale of all
or substantially all of its assets to another company, shall be effected in such
a way that holders of Common Stock shall be entitled to receive stock,
securities, cash or other assets with respect to or in exchange for Common
Stock, then, as a condition of such reorganization, reclassification,
consolidation, merger or sale, lawful and adequate provision shall be made
whereby the holders of Preferred Shares shall thereafter have the right to
receive, in lieu of Common Stock of the Company, such shares of stock,
securities, cash or other assets as would have been issued or payable with
respect to or in exchange for such number of shares of Common Stock receivable
upon a conversion of such Preferred Shares had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in any such
case appropriate provisions shall be made with respect to the rights and
interests of the holders of the Preferred Shares to the end that the provisions
hereof (including, without limitation, provisions for adjustment of the
Conversion Price) shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities, cash or other assets thereafter
receivable upon the conversion of such Preferred Shares. The Company shall not
effect any such reorganization, reclassification, consolidation, merger or sale,
unless prior to the consummation thereof the surviving company (if other than
the Company), the company resulting from such consolidation or the company
purchasing such assets shall assume by written instrument executed and mailed to
the registered holders of the Preferred Shares at the last address of such
holders appearing on the Books of the Company, the obligation to deliver to such
holders such shares of stock, securities, cash or other assets as, in according
to the foregoing provisions, such holders may be entitled to receive.
b. Stock Split, Stock Dividend, Recapitalization, etc. If the
Company, at any time while any Preferred Shares are outstanding, (a) shall pay a
stock dividend or otherwise make a distribution or distributions payable in
shares of its capital stock (whether payable in shares of its Common Stock or of
capital stock of any class), (b) subdivide outstanding shares of Common Stock
into a larger number of shares, (c) combine outstanding shares of Common Stock
into a smaller number of shares, or (d) issue by reclassification of shares of
Common Stock any shares of capital stock of the Company, the Conversion Price in
effect immediately prior thereto shall be adjusted so that the holder of any
Preferred Shares thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock which such holder would have owned
or have been entitled to receive after the happening of any of the events
described above had such Preferred Shares been converted immediately prior to
the happening of such event or the record date therefor, whichever is earlier.
Any adjustment made pursuant to this Section shall become effective immediately
after the record date for the determination of shareholders entitled to receive
such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
c. Notice of Certain Events. If:
(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
(ii) the Company shall declare a special nonrecurring
cash dividend on or a redemption of its Common
Stock; or
(iii) the Company shall authorize the granting to all
holders of the Common Stock rights or warrants to
subscribe for or purchase any shares of capital
stock of any class or of any rights; or
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(iv) the approval of any shareholders of the Company
shall be required in connection with any
reclassification of the Common Stock of the
Company (other than a subdivision or combination
of the outstanding shares of Common Stock), any
consolidation or merger to which the Company is a
party, any sale or transfer of all of
substantially all of the assets of the Company, or
any compulsory share exchange whereby the Common
Stock is converted into other securities, cash or
property; or
(v) the Company shall authorize the voluntary or
involuntary dissolution, liquidation or winding-up
of the affairs of the Company;
then the Company shall mail to the holders of Preferred Shares, at least 10
calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, redemption, rights or warrants, or
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distributions, redemption, rights or
warrants are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding-up is expected to become effective, and (z) the date as of which it
is expected that holders of Common Stock shall be entitled to exchange such
shares of Common Stock for securities, cash or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding-up; provided, however, that the failure to
mail such notice or any defect therein or in the mailing thereof shall not
affect the validity of the corporate action required to be specified in such
notice.
IN WITNESS WHEREOF, PopMail.com, inc. has caused this Certificate to be
duly executed in its corporate name on this 5th day of November 1999.
POPMAIL.COM, INC.
By: s/ Thomas W. Orr
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Thomas W. Orr
Chief Financial Officer
STATE OF MINNESOTA
FILED - DUPLICATE COPY
NOV -5 1999
s/ Mary Kiffmeyer
Secretary of State
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