EXHIBIT 3(i)(A)
CERTIFICATE OF DESIGNATIONS
of
SERIES D PREFERRED STOCK
of
EOS INTERNATIONAL, INC.
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(Pursuant to Section 151 of the
Delaware General Corporation Law)
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Eos International, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law on December 10, 2002 at a meeting duly called and held:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Restated
Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation"), the Board of Directors hereby creates a series of preferred
stock, $0.01 par value, of the Corporation and hereby states the designation and
number of shares, and fixes the relative rights, preferences, and limitations
thereof as follows:
Section 1. Designation and Amount. The shares of this series shall
be designated as "Series D Perpetual Preferred Stock" (the "Series D Preferred
Stock") and the number of shares constituting the Series D Preferred Stock shall
be 1,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no increase shall be made after shares of
Series D Preferred Stock have been issued and no decrease shall reduce the
number of shares of Series D Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Corporation convertible into Series D
Preferred Stock.
Section 2. Dividends and Distributions. Subject to the rights of
the holders of any shares of any series of preferred stock (or any other stock)
ranking senior to the Series D Preferred Stock with respect to dividends, the
holders of shares of Series D Preferred Stock shall be entitled to receive
dividends when, as and if declared by the Board of Directors out of funds
legally available for that purpose.
Section 3. Voting Rights. Except as required by law, holders of
Series D Preferred Stock shall have no voting rights and their consent shall not
be required for taking any corporate action. The Corporation shall have the
right to purchase Series D Preferred Stock without the vote or consent of any
holders of Series D Preferred Stock. The Corporation shall not have the right to
issue preferred stock ranking senior to or on a parity with (either as to
dividends or upon
liquidation, dissolution or winding up) the Series D Preferred Stock without the
vote or consent of the holders of Series D Preferred Stock.
Section 4. Certain Restrictions.
(A) So long as any shares of the Series D Preferred Stock
remain outstanding, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series D Preferred Stock,
except that the Corporation may declare and pay dividends on the Common Stock
payable in shares of Common Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series D
Preferred Stock, except dividends paid ratably on the Series D Preferred Stock
and all such parity stock on which dividends are payable; or
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series D Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire (a) shares of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (as to dividends and upon dissolution,
liquidation or winding up) to the Series D Preferred Stock, or (b) shares of any
such junior stock pursuant to the terms of compensation plans relating to
officers, directors, employees or consultants of the Corporation or any of its
Subsidiaries, or (c) shares of any such junior stock pursuant to the exercise of
dissenters' rights or otherwise as required by law, or (d) fractional shares of
any such junior stock in connection with any capital reorganization.
(B) The Corporation shall not permit any Subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series D Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of preferred stock and may be reissued as part of a new series of
preferred stock subject to the conditions and restrictions on issuance set forth
herein or in the Certificate of Incorporation, including any Certificate of
Designations creating a series of preferred stock or any similar stock, or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon the
voluntary or involuntary liquidation, dissolution or winding-up of the affairs
of the Corporation, the holders of shares of Series D Preferred Stock shall have
a right prior to the payment of any amount to any class of preferred stock of
the Corporation junior to the Series D Preferred Stock, and on a pro rata basis
with any preferred stock of the Corporation on parity with (either as to
dividends or upon liquidation, dissolution or winding up) the Series D Preferred
Stock, to be paid for each
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share an amount (the "Liquidation Preference") equal to the product of (a)
$3,384.90278 plus, in the event that the original date of issuance of the Series
D Preferred Stock is after December 31, 2002, $2.3472 for each day after
December 31, 2002 to, but not including, the date of original issuance of the
Series D Preferred Stock and minus, in the event that the original date of
issuance of the Series D Preferred Stock is before December 31, 2002, $2.3472
for each day before December 31, 2002, to, but not including, the original date
of issuance of the Series D Preferred Stock (the "Initial Liquidation
Preference"), (b) 1.13, and (c) the number of years and fraction of any portion
of a year from the date of issuance of the share of Series D Preferred Stock to,
but not including, the date fixed by the Corporation for payment of the
Liquidation Preference. If the assets of the Corporation are not sufficient to
pay the full amount of the Liquidation Preference to all holders of shares of
Series D Preferred Stock, the assets shall be distributed ratably among the
holders of shares of Series D Preferred Stock according to the number of shares
held by each. After payment in full of the Liquidation Preference to the holders
of shares of Series D Preferred Stock, the remaining assets of the Corporation
shall be distributed among the holders of shares of Common Stock and other
securities junior to the Series D Preferred Stock, as set forth elsewhere in
this Certificate of Incorporation.
Section 7. Redemption. Shares of Series D Preferred Stock shall be
redeemable as provided below.
(A) Mandatory Redemption.
(i) The Corporation shall cause all shares of
Series D Preferred Stock to be redeemed at the Redemption Price (as defined
below) effective as promptly as practicable after the closing of any Complete
Sale (as defined below), but in no event later than 20 Business Days after such
closing. For the purposes hereof, "Business Day" shall mean any weekday on which
banks are open for the conduct of business in the State of New York.
(ii) If at any time the Corporation shall effect a
Partial Sale (as defined below) then 50% of the Net Proceeds (as defined below)
therefrom shall be applied to the redemption of outstanding shares of Series D
Preferred Stock (to the extent that shares of Series D Preferred Stock are then
outstanding) at the Redemption Price (as defined below), with such redemption to
take effect as promptly as practicable after the closing of the Partial Sale,
but in no event later than 20 Business Days after such closing.
(iii) "Complete Sale" means (a) a completed tender
offer, a merger or consolidation of the Corporation into or with one or more
Persons, or any other business combination if the stockholders of the
Corporation immediately prior to such transaction do not hold at least a
majority of the Voting Power of the surviving Person immediately following
completion of such transaction, or (b) the voluntary sale, conveyance, exchange
or transfer (i) to another Person of the Common Stock or other securities of the
Corporation if the stockholders of the Corporation immediately prior to such
transaction do not hold at least a majority of the Voting Power of the
Corporation immediately after completion of such transaction, or (ii) to another
Person other than one or more Subsidiaries of the Corporation of all or
substantially all the assets of the Corporation and the Subsidiaries of the
Corporation considered as a whole.
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(iv) "Convertible Unsecured Subordinated Debt of the
Corporation" means indebtedness of the Corporation that is unsecured and
subordinated to all other indebtedness of the Corporation and is fully
convertible into Common Stock of the Corporation, with no portion of the
principal thereof having a scheduled maturity of less than five years after the
date of original issuance.
(v) "Equity Securities" of the Corporation means
Common Stock, preferred stock, or Convertible Unsecured Subordinated Debt of the
Corporation but does not include warrants, options, phantom securities or other
derivative securities, or Common Stock or preferred stock issuable upon the
conversion of debt securities other than Convertible Unsecured Subordinated Debt
of the Corporation.
(vi) "Net Proceeds" means actual cash proceeds, net
of all out-of-pocket expenses incurred by the Corporation or any Subsidiary of
the Corporation in connection with the Partial Sale, and the amount of any
indebtedness or other obligation required to be paid by the Corporation or any
Subsidiary of the Corporation as a condition to or as a result of the Partial
Sale, and net of taxes (due or estimated to be due in connection with the
Partial Sale), in each case as determined in good faith by the Board of
Directors. In the event the Corporation receives proceeds in a Partial Sale in
the form of securities or other property, and if the Corporation directly or
indirectly liquidates such securities or other property for cash, such cash
(subject to reduction as provided in this clause (vi)) shall at that time be
deemed "Net Proceeds."
(vii) "Partial Sale" means any of the following
transactions, unless the transaction also fits within the definition of
"Complete Sale," in which case the transaction will be deemed a "Complete Sale"
and not a "Partial Sale" hereunder:
(a) a private placement or public offering for
cash of Equity Securities by the Corporation in which more than $500,000
in cash is raised (net of underwriting commissions and payments to
placement agents), other than pursuant to (x) an exercise of warrants
which were issued by the Corporation to the initial holders of the
Series D Preferred Stock, or (y) an exercise of options which were
issued by the Corporation as compensation, or as a pre-employment award,
to directors, officers, employees or consultants of the Corporation or
any of its Subsidiaries, or (z) the Corporation's private equity
offering effected prior to, simultaneous with, or immediately following
the original issuance of the Series D Preferred Stock to the holders of
the Series D Preferred Stock, or
(b) the merger or consolidation of a Subsidiary
of the Corporation into or with one or more Persons if (i) the
Corporation or one or more of its Subsidiaries do not hold a majority of
the Voting Power of the surviving Person immediately following
completion of such transaction and (ii) the Corporation or one or more
of its Subsidiaries receives cash compensation in such transaction, or
(c) the sale, conveyance, exchange or transfer
by the Corporation for cash to a Person other than a Subsidiary of the
Corporation of (i) common
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stock or other securities of a Subsidiary of the Corporation, or (ii)
all or substantially all the assets of a Subsidiary of the Corporation.
(viii) "Person" means any individual, firm,
corporation, partnership, limited liability company, trust, incorporated or
unincorporated association, joint venture, joint stock company, governmental
body, or other entity of any kind.
(ix) "Subsidiary" of the Corporation means (a) any
corporation, association or other business entity of which more than 50% of the
Voting Power is held by the Corporation or a Subsidiary and (b) any partnership
(i) the sole general partner or the managing general partner of which is the
Corporation or a Subsidiary of the Corporation or (ii) the only general partners
of which are the Corporation or of one or more Subsidiaries of the Corporation
(or any combination thereof).
(x) "Voting Power" of a Person is deemed to be held
by a second Person if shares or other interests of the first Person's capital
stock or other interests entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
and to vote on matters generally submitted to a vote of equity holders is at the
time owned or controlled, directly or indirectly, by the second Person or by one
or more Subsidiaries of the second Person (or a combination thereof).
(B) Redemption at the Corporation's Option. The Corporation
shall have the right, at its option, at any time and from time to time on notice
as hereinafter provided, to redeem all or any number of the outstanding shares
of the Series D Preferred Stock by paying for each share an amount (the
"Redemption Price") equal to the product of (a) the Initial Liquidation
Preference, (b) 1.13 and (c) the number of years and fraction of any portion of
a year from the date of issuance of the share of Series D Preferred Stock to,
but not including, the date fixed for redemption in the notice of redemption
(the "Redemption Date"). Shares of Series D Preferred Stock so redeemed shall
not be reissued.
(C) Redemption Procedures.
(i) In all cases of redemption of shares of Series D
Preferred Stock, no less than 20 nor more than 40 Business Days' notice shall
be mailed to the respective stockholders whose shares are to be redeemed at
their respective addresses appearing on the books of the Corporation. The notice
shall specify (w) the Redemption Date, (x) the Redemption Price, (y) if fewer
than all outstanding shares of Series D Preferred Stock are to be redeemed, the
identification of the particular shares to be redeemed, and (z) the place or
places where such Series D Preferred Stock is to be surrendered for payment of
the Redemption Price. "Business Day" means any day other than a Saturday, Sunday
or other day on which commercial banks in the State of New York are authorized
or required by law or executive order to close.
(ii) Notice of redemption having been given as
aforesaid, the Redemption Price of the Series D Preferred Stock so to be
redeemed shall, on the Redemption Date, become due and payable, and from and
after such date (unless the Corporation shall default in the payment of the
Redemption Price), such shares of Series D Preferred Stock shall no longer be
outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except
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the right to receive the Redemption Price without interest) shall cease. Upon
surrender of any certificate representing any such share of Series D Preferred
Stock for redemption in accordance with said notice, the Redemption Price shall
thereupon be paid (without interest, in cash). Notwithstanding the foregoing,
the Corporation's obligation to complete a mandatory redemption under Section
7(A) shall be conditioned upon the closing of the Complete Sale or Partial Sale
which is the basis for such mandatory redemption, whether or not the notice of
redemption so specifies.
(iii) In the case of any partial redemption, the
Corporation will select the shares of Series D Preferred Stock to be redeemed on
a pro rata basis. In the event any certificate that represents more than one
share of Series D Preferred Stock, not all of which are subject to redemption,
is surrendered at any office or agency of the Corporation designated for that
purpose (with, if the Corporation so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Corporation duly executed by,
the holder thereof or such holder's attorney duly authorized in writing), the
Corporation shall execute and deliver to the holder of such shares of Series D
Preferred Stock without service charge, a new certificate or certificates,
representing any number of shares of Series D Preferred Stock, as requested by
such holder, in an aggregate amount equal to the number of shares not redeemed
and represented by the certificate so surrendered.
(iv) Notwithstanding the foregoing, the Corporation
shall not be required to redeem shares of Series D Preferred Stock in violation
of any law to which the Corporation is subject or in circumstances in which such
redemption would violate any agreement between the Corporation and holders of
Senior Debt of the Corporation. "Senior Debt" means indebtedness of the
Corporation for borrowed money, but does not include indebtedness of
Subsidiaries of the Corporation for borrowed money for which the Corporation is
not also obligated.
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Corporation this 19th day of December, 2002.
EOS INTERNATIONAL, INC.
By: /s/ PETER A. LUND
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Name: Peter A. Lund
Title: Chairman
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