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EXHIBIT 4.3
CERTIFICATE OF DESIGNATIONS, PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES A CONVERTIBLE PAID-IN-KIND PREFERRED STOCK
OF
BANNER AEROSPACE, INC.
A DELAWARE CORPORATION,
PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW
BANNER AEROSPACE, INC., a Delaware corporation (the
"Company"), DOES HEREBY CERTIFY THAT:
FIRST: Pursuant to the authority contained in Article FOURTH
of its Certificate of Incorporation, as amended and restated (the "Certificate
of Incorporation") and in accordance with the provisions of Section 141(f) of
the Delaware General Corporation Law, the Board of Directors of the Corporation
at a meeting on January 10, 1997, adopted the following resolutions which
resolutions remain in full force and effect on the date hereof:
RESOLVED, that the Board of Directors hereby finds it to be advisable and in
the best interest of the Corporation that the Restated Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation") be
amended, subject to the receipt of stockholder approval, in the following
manner:
Article FOURTH shall be amended in its entirety to read as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have the authority to issue is 60,000,000. Such
shares shall be divided into two classes. One such class shall be
designated Preferred Stock and shall consist of 10,000,000 shares of
par value $.01 per share, and the other class shall be designated
Common Stock and shall consist of 50,000,000 shares of par value $1.00
per share.
The Board of Directors is hereby authorized, subject to limitations
prescribed by law and the provisions of this article FOURTH, to issue
Preferred Stock in series with such voting powers, full or limited, or
no voting powers and such designations, preferences and relative,
participating, optional or other special rights, with such
qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions providing for
the issue of Preferred Stock adopted by the Board of Directors and in
a certificate filed pursuant to the applicable law of the State of
Delaware setting forth a copy of
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such resolution or resolutions and the number of shares of Preferred
Stock or any series thereof."
SECOND: This Certificate of Designations, Preferences, Rights
and Limitations of Series A Convertible Paid-in-Kind Preferred Stock (the
"Certificate of Designations") was duly adopted in accordance with the
provisions of Section 151 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Company has caused this Certificate of
Designations to be signed by ____________________, its _____________________,
and attested to by __________________, its ________________, as of the ____ day
of _________, 1997.
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Name:
Title:
Attest:
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Name:
Title:
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DESIGNATIONS, PREFERENCES, RIGHTS AND LIMITATIONS
OF
SERIES A CONVERTIBLE PAID-IN-KIND PREFERRED STOCK
ARTICLE I
CERTAIN DEFINITIONS
Unless the context otherwise requires, the terms defined in
this Article I shall have, for all purposes of this resolution, the meanings
herein specified:
ACCELERATED CONVERSION DATE. The term "Accelerated Conversion
Date" shall have the meaning set forth in Section 5.1(c) hereof.
COMMON STOCK. The term "Common Stock" shall mean the common
stock, $1.00 par value per share, of the Company as the same exists on the date
of this resolution or as such stock may be reconstituted from time to time.
For purposes of calculating the number of shares of Common Stock outstanding,
shares of Common Stock held in the treasury of the Company shall not be
considered outstanding.
CONVERSION DATE. The term "Conversion Date" shall have the
meaning set forth in Section 5.2(a) hereof.
CONVERSION PRICE. The term "Conversion Price" shall mean,
initially, $9.20, the average closing sales prices of the Common Stock on the
15 consecutive days next preceding the fifth trading day prior to the date the
Registration Statement for the Series A Preferred Stock was initially filed
with the Securities and Exchange Commission, and thereafter, such price as
shall be adjusted pursuant to Section 5.4 hereof.
DIVIDEND PAYMENT DATE. The term "Dividend Payment Date" shall
have the meaning set forth in Section 2.1 hereof.
INITIAL ISSUE DATE. The term "Initial Issue Date" shall mean
the date the shares of Series A Preferred Stock are first issued by the
Company, which date shall not precede the date this Certificate is filed with
the Secretary of State of the State of Delaware.
JUNIOR STOCK. The term "Junior Stock" shall mean the Common
Stock and any class or series of stock the Company authorized after the Initial
Issue Date ranking junior to the Series A Preferred Stock in respect of the
right to receive dividends or in respect of the right to participate in any
distribution upon liquidation, dissolution or winding up of the affairs of the
Company.
LIQUIDATION VALUE. The term "Liquidation Value" shall mean
$9.20 per share of Series A Preferred Stock.
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MANDATORY CONVERSION DATE. The term "Mandatory Conversion
Date" shall mean _________________, 2002.
PERSON. The term "Person" shall mean an individual,
partnership, joint venture, corporation, trust or unincorporated organization,
a government or any department, agency or political subdivision thereof or
other entity.
RECORD DATE. The term "Record Date" shall have the meaning
set forth in Section 2.1 hereof.
SENIOR STOCK. The term "Senior Stock" shall mean any class or
series of stock of the Company authorized after the Initial Issue Date ranking
senior to the Series A Preferred Stock in respect of the right to receive
dividends or in respect of the right to participate in any distribution upon
liquidation, dissolution or winding up of the affairs of the Company.
SERIES A PREFERRED STOCK. The term "Series A Preferred Stock"
shall mean the Series A Convertible Paid-in-Kind Preferred Stock, par value
$.01 per share, of the Company as the same exists on the date of this
resolution or as such stock may be reconstituted from time to time. For
purposes of calculating the number of shares of Series A Preferred Stock
outstanding, shares of Series A Preferred Stock held in the treasury of the
Company shall not be considered outstanding.
TRANSFER AGENT. The term "Transfer Agent" shall mean Harris
Trust and Savings Bank, 311 West Monroe Street, P.O. Box A3504, Chicago,
Illinois 60690-3504; Tel. No. (312) 360-6001, and its successors and assigns.
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ARTICLE II
PAID-IN-KIND DIVIDENDS
2.1 GENERAL. The holders of record on the Record Date
(as defined below) of the outstanding Series A Preferred Stock shall be
entitled to receive semi-annual dividends, as and when declared by the Board of
Directors out of funds legally available therefor. Each semi-annual dividend
shall be paid at the rate of 7.5 per cent per annum of the Liquidation Value of
$9.20 per share, payable in additional shares of Series A Preferred Stock. The
number of shares of Series A Preferred Stock issued to pay dividends will be
based on the Series A Preferred Stock's Liquidation Value, which is $9.20 per
share. Each such dividend shall be payable on or about each April 30 and
October 31 (each, a "Dividend Payment Date"), or if any such date is not
a business day, the dividends due on such Dividend Payment Date shall be paid
on the next succeeding business day, beginning on October 31, 1997. Such
dividends shall be cumulative and shall accrue on each share whether or not
earned, from and after the Dividend Payment Date coincident with or next
preceding the issuance of such shares, provided, however, that dividends
payable on the first Dividend Payment Date shall so accrue from and after the
date immediately succeeding the Initial Issue Date and provided further that
dividends shall cease to accrue on shares of Series A Preferred Stock following
the Mandatory Conversion Date or on the date of their earlier conversion, as
the case may be. The dividends on the Series A Preferred Stock shall be
payable to holders of record as they appear on the stock register of the
Company on such record date, not less than 15 nor more than 60 days preceding
each Dividend Payment Date, as shall be fixed by the Board of Directors (each,
a "Record Date"). Dividends payable for any partial dividend period (including
the period from the Initial Issue Date to the first Dividend Payment Date)
shall be computed on the basis of the actual days elapsed in such period over a
year of 365 or 366 days. All calculations provided for in this Section 2.1
shall be rounded to the nearest share. Fractional shares of Series A Preferred
Stock will not be delivered, but a cash adjustment will be paid in respect of
such fractional interests based on the Liquidation Value. The number of full
shares of Series A Preferred Stock which shall be issued upon payment of
dividends shall be computed on the basis of the aggregate number of shares of
Series A Preferred Stock held by such holder. The Transfer Agent shall carry
forward any fractional shares such that payment for fractional shares to any
one holder shall not exceed the value of one share.
2.2 LIMITATIONS. Except as hereinafter provided in this
Section 2.2, unless all dividends on the outstanding shares of Series A
Preferred Stock that have accrued and are payable as of any date shall have
been paid, or declared and additional shares or funds, as appropriate, set
apart for payment thereof, no dividend or other distribution shall be paid to
the holders of Junior Stock and no shares of Junior Stock shall be purchased or
redeemed by the Company. Holders of shares of Series A Preferred Stock shall
not be entitled to any dividends in excess of full cumulative dividends, as
herein provided, on the Series A Preferred Stock. Any dividend that is not
declared and paid (or set apart for payment) on the requisite Dividend Payment
Date shall accrue additional dividends at the rate of 7.5 per cent per annum
compounded on a semi-annual basis and payable on succeeding Dividend Payment
Dates.
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ARTICLE III
DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP
3.1 PREFERENCE ON LIQUIDATION, ETC. In the event of any
voluntary or involuntary liquidation, dissolution or other winding up of the
affairs of the Company, subject to the prior preferences and other rights of
any Senior Stock as to liquidation preferences, the holders of Series A
Preferred Stock shall be entitled to be paid out of the assets of the Company
in cash or property at its fair market value as determined, in good faith, by
the Board of Directors of the Company, the Liquidation Value per share plus an
amount equal to all accrued and unpaid dividends and distributions thereon
(which to the extent payable in Series A Preferred Stock shall be valued at the
Liquidation Value thereof) to the date of such payment prior to any payment to
the holders of Junior Stock. After payment in full of the Liquidation Value
per share of the Series A Preferred Stock and other preferential amounts
provided for in this Section 3.1, the holders of the Series A Preferred Stock
as such shall have no right or claim to any of the remaining assets of the
Company. Except as provided in this Section 3.1, holders of Series A Preferred
Stock shall not be entitled to any distribution in the event of liquidation,
dissolution or winding up of the affairs of the Company.
3.2 LIQUIDATION PRO RATA IF ASSETS INADEQUATE. If, upon
any such liquidation, dissolution or other winding up of the affairs of the
Company, the assets of the Company shall be insufficient to permit the payment
in full of the Liquidation Value per share of Series A Preferred Stock, then
the assets of the Company remaining after the distributions to holders of any
Senior Stock of the full amounts to which they may be entitled shall be ratably
distributed among the holders of Series A Preferred Stock and any other stock
ranking on a parity with the Series A Preferred Stock with respect to
distributions upon liquidation, dissolution or winding up of the affairs of the
Company in proportion to the full amounts to which they would otherwise be
respectively entitled if all amounts thereon were paid in full. Neither the
consolidation or merger of the Company into or with another corporation or
corporations nor the sale, lease, transfer or conveyance of all or
substantially all of the assets of the Company to another corporation or any
other entity shall be deemed a liquidation, dissolution or winding up of the
affairs of the Company within the meaning of this resolution.
ARTICLE IV
VOTING RIGHTS
4.1 VOTING RIGHTS OF HOLDERS OF PREFERRED STOCK. The
shares of Series A Preferred Stock shall have no voting rights except as
required by law.
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ARTICLE V
CONVERSION
5.1 CONVERSION.
(a) Optional Conversion. Subject to and upon compliance with
the provisions of this Article V, at the option of the holder thereof, shares
of Series A Preferred Stock may at any time be converted into fully paid and
non-assessable shares of Common Stock at the Conversion Price. For this
purpose, the value of any shares of Series A Preferred Stock shall be deemed to
be the Liquidation Value. Immediately following such conversion, the rights of
the holders of any converted shares of Series A Preferred Stock, including
without limitation, the right to receive dividends on the next Dividend Payment
Date, shall cease and the persons entitled to receive shares of Common Stock
upon the conversion of such shares of Series A Preferred Stock shall upon
compliance with the requirements of Section 5.2(a) hereof be treated for all
purposes as having become the owners of such shares of Common Stock. No
payments or adjustments will be made upon the Conversion Date on account of
accrued and unpaid dividends and distributions on the shares of Series A
Preferred Stock subject to such conversion.
(b) Mandatory Conversion. Unless previously converted at the
option of the holder in accordance with Section 5.1(a) hereof or pursuant to a
transaction in accordance with Section 5.1(c) hereof, on _______________, 2002
(the "Mandatory Conversion Date"), each outstanding share of Series A Preferred
Stock shall mandatorily convert into shares of fully paid and non-assessable
Common Stock at the Conversion Price. For this purpose, the value of any
shares of Series A Preferred Stock shall be deemed to be the Liquidation Value.
Immediately following such conversion, the rights of the holders of any
converted shares of Series A Preferred Stock, including without limitation, the
right to receive dividends on the next Dividend Payment Date, shall cease and
the persons entitled to receive shares of Common Stock upon the conversion of
such shares of Series A Preferred Stock shall be treated for all purposes as
having become the owners of such shares of Common Stock, subject to Section
5.2(b) hereof. No payments or adjustments will be made upon the Mandatory
Conversion Date on account of accrued and unpaid dividends and distributions on
the shares of Series A Preferred Stock subject to such conversion.
(c) Accelerated Mandatory Conversion. In the event there is
an offer to acquire all the outstanding shares of the Common Stock and such
offer, if accepted, would result in the consummation of a transaction whereby
90 per cent of the outstanding shares of Common Stock, on a fully diluted basis
(including, without limitation, the shares of Common Stock into which the
Series A Preferred Stock is convertible), would become beneficially owned
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) by one person or group (as such terms are used in
Section 13(d)(3) of the Exchange Act), each outstanding share of Series A
Preferred Stock shall mandatorily convert into shares of fully paid and
non-assessable Common Stock at the Conversion Price, immediately prior to the
consummation of such transaction (the "Accelerated Conversion Date"). For this
purpose, the value of any shares of Series A Preferred Stock shall be deemed to
be the Liquidation Value. Immediately following such conversion, the rights of
the holders of any converted shares of Series A Preferred Stock,
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including without limitation, the right to receive dividends on the next
Dividend Payment Date, shall cease and the persons entitled to receive shares
of Common Stock upon the conversion of such shares of Series A Preferred Stock
shall be treated for all purposes as having become the owners of such shares of
Common Stock, subject to Section 5.2(b) hereof. No payments or adjustments
will be made upon the Accelerated Conversion Date on account of accrued and
unpaid dividends and distributions on the shares of Series A Preferred Stock
subject to such conversion.
5.2 PROCEDURES.
(a) Procedures for Optional Conversion. To receive
certificates evidencing Common Stock issuable on conversion of Series A
Preferred Stock pursuant to Section 5.1(a) hereof, a holder must (i) surrender
the certificate or certificates evidencing the shares of Series A Preferred
Stock to be converted, duly endorsed in a form reasonably satisfactory to the
Company, at the office of the Company or transfer agent for the Series A
Preferred Stock, (ii) state in writing the name or names in which he or she
wishes the certificate or certificates for shares of Common Stock to be issued,
and (iii) pay any transfer or similar tax if required. The date on which the
holder satisfies all those requirements is the "Conversion Date". The Person
in whose name the Common Stock certificate is registered shall be treated as
the stockholder of record on and after the Conversion Date. As soon as
practicable, but in any event within 10 business days after the Conversion
Date, the Company shall deliver, through the Transfer Agent, a certificate for
the number of full shares of Common Stock issuable upon the conversion and a
check for any fractional share. The number of full shares of Common Stock
issuable to any holder of Series A Preferred Stock upon conversion shall be
based on the total number of shares of Series A Preferred Stock surrendered for
conversion by such holder.
(b) Procedures for Mandatory Conversion and Accelerated
Mandatory Conversion. Upon conversion of Series A Preferred Stock pursuant to
Sections 5.1(b) and (c) hereof, the Company shall make such arrangements as it
deems appropriate for (i) the issuance of certificates representing shares of
Common Stock and (ii) payment of cash in lieu of any fractional shares of
Common Stock in exchange for and contingent upon surrender of certificates
representing shares of Series A Preferred Stock. The Company may defer the
payment of dividends on such shares of Common Stock until, and make such
payment and voting contingent upon, the surrender of certificates representing
the shares of Series A Preferred Stock; provided, that the Company shall give
the holders of shares of Series A Preferred Stock such notice of any such
actions as the Company deems appropriate and, upon such surrender of their
certificates representing the Series A Preferred Stock, such holders shall be
entitled to receive dividends declared and paid, if any, on such shares of
Common Stock subsequent to the Mandatory Conversion Date or the Accelerated
Conversion Date, as the case may be.
5.3 FRACTIONAL INTERESTS. No fractions of shares or
scrip representing fractions of shares of Common Stock shall be issued upon
conversion of the Series A Preferred Stock. If any fraction of a share of
Common Stock would, except for the provisions of this Section 5.3, be issuable
on the conversion of any shares of Series A Preferred Stock, the Company shall
make payment in lieu thereof in an amount of United
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States dollars equal to the value of such fraction computed on the basis of the
last sale price of the Common Stock as reported on the Composite Tape for New
York Exchange Listed Stocks (or if not listed or admitted to trading on such
Exchange, then on the principal national securities exchange on which the
Common Stock is listed or admitted to trading, or, if not listed or admitted to
trading on any national securities exchange, on the National Association of
Securities Dealers Automated Quotation/National Market System (the
"NASDAQ/NMS") or a similar organization if NASDAQ/NMS is no longer reporting
information) on the last trading day prior to the Conversion Date or if no such
sale takes place on such day, the last sale price for such day shall be the
average of the closing bid and asked prices regular way on the New York Stock
Exchange (or if not listed or admitted to trading on such Exchange, on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading, or, if not listed or admitted to trading on any national
securities exchange, the average of the highest bid and lowest asked prices on
NASDAQ/NMS or a similar organization if NASDAQ/NMS is no longer reporting
information) for such day (any such last sale price being hereinafter referred
to as the "Last Sale Price"). If on such trading day the Common Stock is not
quoted by any such organization, the fair value of such Common Stock on such
day, as determined by the Board of Directors, shall be used. The number of
full shares of Common Stock which shall be issued upon conversion of Series A
Preferred Stock shall be computed on the basis of the aggregate number of
shares of Series A Preferred Stock held by such holder. The Transfer Agent
shall carry forward any fractional share such that payment for fractional
shares to any one holder shall not exceed the value of one share of Common
Stock.
5.4 ADJUSTMENT OF CONVERSION PRICE. The Conversion Price
per share of Common Stock issuable upon conversion of the Series A Preferred
Stock pursuant to Section 5.1 hereof shall be subject to adjustment from time
to time from and after the date of this resolution as follows:
(a) In case the Company shall (i) pay a dividend or make
a distribution in shares of Common Stock on any class of capital stock
of the Company, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares or (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, the Conversion
Price in effect immediately prior to such action shall be adjusted so
that the holder of any shares of Series A Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the number of
shares of Common Stock which he or she would have owned immediately
following such action had such shares of Series A Preferred Stock been
converted immediately prior thereto. An adjustment made pursuant to
this subsection (a) shall become effective immediately, except as
provided in subsection (f) below, after the record date in the case of
a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all
holders of Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (as determined pursuant to subsection (d)
below) of the Common Stock on the record date mentioned below, the
Conversion Price shall be adjusted to a
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price, computed to the nearest cent, so that the same shall equal the
price determined by multiplying:
(i) the Conversion Price in effect immediately
prior to the date of issuance of such rights
or warrants by a fraction, of which
(ii) the numerator shall be (A) the number of
shares of Common Stock outstanding on the
date of issuance of such rights or warrants,
immediately prior to such issuance, plus (B)
the number of shares which the aggregate
offering price of the total number of shares
so offered for subscription or purchase would
purchase at such current market price
(determined by multiplying such total number
of shares by the exercise price of such
rights or warrants and dividing the product
so obtained by such current market price),
and of which
(iii) the denominator shall be (A) the number of
shares of Common Stock outstanding on the
date of issuance of such rights or warrants,
immediately prior to such issuance, plus (B)
the number of additional shares of Common
Stock which are so offered for subscription
or purchase.
Such adjustment shall become effective immediately, except as
provided in subsection (f) below after the record date for the
determination of holders entitled to receive such rights or warrants.
(c) In case the Company or any subsidiary of the Company
shall distribute to all holders of Common Stock any of its
assets, evidences of indebtedness or securities other than Common
Stock (other than (x) ordinary dividends in cash or other property
whether or not paid out of retained earnings of the Company or (y) any
dividend or distribution referred to in subsection (a) or (b) above),
then in each such case the Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in subsection (d)
below) of the Common Stock immediately prior to the record date
mentioned below less the then fair market value (as determined by the
Board of Directors, whose determination shall, if made in good faith,
be conclusive evidence of such fair market value) of the portion of
the assets so distributed or of such evidences of indebtedness debt or
other securities applicable to one share of Common Stock, and of which
the denominator shall be such current market price per share of the
Common Stock. Such adjustment shall become effective immediately,
except as provided in subsection (f) below, after the record date for
the determination of stockholders entitled to receive such
distribution. Notwithstanding the foregoing, in the event that the
fair market value of the assets, evidences of indebtedness or other
securities so distributed applicable to one share of Common Stock
equals or exceeds such current market price per share of Common Stock
or such current market price exceeds such fair market value by less
than $1.00 per share, the Conversion
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Price shall not be adjusted pursuant to this subsection (c) until such
time as the cumulative amount of all such distributions exceeds $1.00
per share.
(d) For the purpose of any computation under subsections (b)
and (c) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Last Sale Prices of
a share of Common Stock for the five consecutive trading days selected
by the Company commencing not more than 15 trading days before, and
ending not later than, the earlier of the date in question and the
date before the "'ex' date" with respect to the issuance, distribution
or offer requiring such computation. If on any such trading day the
Common Stock is not quoted by any organization referred to in the
definition of Last Sale Price in Section 5.3 hereof, the fair value of
the Common Stock on such day, as determined by the Board of Directors,
shall be used. For purposes of this paragraph, the term "'ex' date",
when used with respect to any issuance, distribution or payments with
respect to an offer, means the first date on which the Common Stock
trades on the principal national securities exchange on which the
Common Stock trades or on which the Common Stock is listed or admitted
to trading without the right to receive such issuance, distribution or
offer.
(e) In addition to the foregoing adjustments in subsections
(a), (b) and (c) above, the Company will be permitted to make such
reductions in the Conversion Price as it considers to be advisable in
order that any event treated for Federal income tax purposes as a
dividend of stock or stock rights will not be taxable to the holders
of the shares of Common Stock.
(f) In any case in which this Section 5.4 shall require that
adjustment (including by reason of the last sentence of subsection (a)
or (c) above) be made immediately following a record date, the Company
may elect to defer the effectiveness of such adjustment (but in no
event until a date later than the effective time of the event giving
rise to such adjustment), in which case the Company shall, with
respect to any shares of Series A Preferred Stock converted after such
record date pursuant to Section 5.1 hereof and on and before such
adjustment shall have become effective, (i) defer paying any cash
payment pursuant to Section 5.3 hereof or issuing to the holder of
such shares the number of shares of Common Stock and other capital
stock of the Company (or other assets or securities) issuable upon
such conversion in excess of the number of shares of Common Stock and
other capital stock of the Company issuable thereupon only on the
basis of the Conversion Price prior to adjustment, and (ii) not later
than five business days after such adjustment shall have become
effective, pay to such holder the appropriate cash payment pursuant to
Section 5.3 hereof and issue to such holder the additional shares of
Common Stock and other capital stock of the Company issuable on such
conversion.
(g) Before taking any action which would cause an
adjustment reducing the Conversion Price below the then par value, if
any, of Common Stock, the Company will take all corporate action which
may, in the opinion of counsel, be necessary in order that the Company
may validly and legally
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issue fully paid and non-assessable shares of Common Stock at such
adjusted Conversion Price.
5.5 RESERVATION AND REGISTRATION OF COMMON STOCK.
(a) The Company shall at all times reserve and keep available
out of its authorized and unissued Common Stock, solely for issuance
upon the conversion of the shares of Series A Preferred Stock, as
herein provided, free from preemptive rights, such maximum number of
shares of Common Stock as shall from time to time be issuable upon the
Optional Conversion, Mandatory Conversion or Accelerated Mandatory
Conversion of all the shares of Series A Preferred Stock then
outstanding.
(b) If any shares of Common Stock to be reserved for the
purpose of conversion of shares of Series A Preferred Stock hereunder
require registration with or approval of any governmental authority
under any Federal or state law before such shares may be validly
issued or delivered upon conversion, then the Company covenants that
it will in good faith and as expeditiously as possible endeavor to
secure such registration or approval, as the case may be, provided,
however, that nothing in this Section 5.5 shall be deemed to affect in
any way the obligations of the Company to convert Series A Preferred
Stock into Common Stock as provided in this Article V.
ARTICLE VI
MISCELLANEOUS
6.1 EXCLUSION OF OTHER RIGHTS. Except as may otherwise be
required by law, the shares of Series A Preferred Stock shall not have any
powers, preferences or relative, participating, optional or special rights,
other than those specifically set forth in this Certificate and in the
Certificate of Incorporation.
6.2 HEADINGS OF SUBDIVISIONS. The headings of the various
subdivisions hereof are for convenience of reference only and shall not affect
the interpretation of any of the provisions hereof.
6.3 SEVERABILITY OF PROVISION. If any voting powers,
preferences, and relative, participating, optional or other special rights of
the Series A Preferred Stock and qualifications, limitations, and restrictions
thereof set forth in this resolution are invalid, unlawful or incapable of
being enforced by reason of any rule of law or public policy, all other voting
powers, preferences and relative, participating, optional and other special
rights of the Series A Preferred Stock and qualifications, limitations and
restrictions thereof set forth in this resolution (as so amended) which can be
given effect without the invalid, unlawful or unenforceable voting powers,
preferences and relative, participating, optional and other special rights of
the Series A Preferred Stock and qualifications, limitations and restrictions
thereof shall, nevertheless, remain in full force and effect, and no voting
powers, preferences and relative, participating, optional or other special
rights of the Series A
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Preferred Stock and qualifications, limitations and restrictions thereof herein
set forth shall be deemed dependent upon any other special rights of the Series
A Preferred Stock and qualifications, limitations and restrictions thereof
unless so expressed herein.
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