EXHIBIT 4.3
CERTIFICATE OF THE DESIGNATIONS, PREFERENCES,
RIGHTS AND LIMITATIONS OF SERIES E PREFERRED STOCK
OF
MOBILITY ELECTRONICS, INC.
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Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
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MOBILITY ELECTRONICS, INC. (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the state of Delaware (the
"DGCL"),
DOES HEREBY CERTIFY:
That, pursuant to the authority expressly vested in the Board of
Directors by Article Fourth of the Certificate of Incorporation of the
Corporation, and pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, the Board of Directors duly adopted by
unanimous consent, dated as of January 14, 2003, a resolution providing for the
issuance of up to One Million, Four Hundred Thousand (1,400,000) shares of
Series E Preferred Stock, which resolution is as follows:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation by the provisions of Article
Fourth of the Certificate of Incorporation of the Corporation, this Board of
Directors hereby creates a series of the Preferred Stock, $0.01 par value, of
the Corporation to consist of One Million, Four Hundred Thousand (1,400,000)
shares, and this Board of Directors hereby fixes the designation and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereon, of the shares of such series (in addition to the powers, preferences
and rights, and the qualifications, limitations or restrictions thereon, set
forth in the Certificate of Incorporation, as amended, which are applicable to
all series of the Preferred Stock, $0.01 par value, of the Corporation) as
follows:
One Million, Four Hundred Thousand (1,400,000) shares of Preferred
Stock, par value $0.01 per share, of the Corporation are hereby constituted as a
series of Preferred Stock designated as "Series E Preferred Stock" (hereinafter
called the "Series E Stock") with the powers, preferences and rights hereinafter
set forth.
1. Definitions. As used herein:
"Additional Stock" means all capital stock issued by the Corporation
after the date of the first issuance of shares of Series E Stock, other than (i)
Common Stock issuable upon conversion of Series E Stock or Series F Stock, (ii)
capital stock of the Corporation issued at a per share consideration equal to or
greater than the Issuance Consideration, (iii) Series E Stock, Series F Stock
and the warrants to purchase Common Stock issued in the Offering, (iv) Common
Stock issued as a dividend or distribution on the Series E Stock or Series F
Stock, (v) additional shares of Common Stock issuable to the holders of Series C
Stock, Series E Stock or Series F Stock
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under the anti-dilution provisions of such Series for events occurring after the
date this Certificate is filed with the Secretary of State of Delaware, (vi)
Common Stock issued as a result of Exempt Issuances, or (vii) additional shares
of Series E Stock or Series F Stock issued as a dividend or distribution on the
Series E Stock or Series F Stock.
"Board of Directors" means the Board of Directors of the Corporation.
"Certificate of Designations" means the Certificate of the
Designations, Preferences, Rights and Limitations of Series E Preferred Stock of
the Corporation.
"Common Stock" means (i) the class of stock designated as the common
stock of the Corporation as of January 1, 2003, or (ii) any other class of stock
resulting from successive changes or reclassification of such stock consisting
solely of changes in par value, or from par value to no par value or from no par
value to par value.
"Conversion Event" shall have the meaning ascribed thereto in Paragraph
6(b) below.
"Conversion Price" means the Issuance Consideration divided by the
Conversion Rate in effect at such time.
"Conversion Rate" means the number of shares of Common Stock into which
a single share of Series E Stock is convertible at such time. The initial
Conversion Rate shall be one. Thereafter, the Conversion Rate shall be subject
to adjustment as provided in Paragraph 6 below.
"Convertible Securities" means capital stock or other securities,
options, rights or warrants which are convertible into or exchangeable or
exercisable for, with or without payment of additional consideration of cash or
property, Common Stock or rights to acquire Common Stock, either immediately or
upon the arrival of a specified date or the happening of a specified event.
"Exempt Issuances" means any issuance of capital stock of the
Corporation or Convertible Securities: (i) pursuant to any plan or arrangement
approved by the Board of Directors; (ii) pursuant to any option, warrants, right
or convertible or exchangeable security of the Corporation outstanding as of the
date of filing of this Certificate of Designations with the Secretary of State
of Delaware (although the terms of which may be changed after said date); (iii)
issued in connection with the Offering (including, without limitation, warrants
and stock issued in connection therewith and the securities underlying the
Series E Stock, Series F Stock and such warrants); or (iv) the issuance of any
warrants for nominal consideration in connection with a debt private placement.
"Fair Market Value" means with respect to a share of Common Stock, the
fair market value of such share, determined by such methods or procedures as
shall be established from time to time by the Board of Directors, provided,
however, that if the Common Stock is listed on a national securities exchange or
quoted in an interdealer quotation system, the Fair Market Value of a share of
Common Stock on a given date shall be based upon the last sales price or, if
unavailable, the average of the closing bid and asked prices per share of the
Common Stock on such date (or, if there was no trading or quotation in the Stock
on such date, on the next preceding date on which there was trading or
quotation) as reported in The Wall Street Journal.
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"Issuance Consideration" means the consideration received by the
Corporation for the issuance of a single share of the Series E Stock subject to
adjustment in the event of a stock split, stock dividend, recapitalization or
the like. The Issuance Consideration is initially $0.7225 per share.
"Liquidation Event" shall mean any liquidation, dissolution or
winding-up of the Corporation or, at the option of the holders of a majority of
the outstanding Series E Stock, voting as a single class: (i) a consolidation or
merger of the Corporation with or into any other corporation or other business
organization; or (ii) the sale, lease or transfer of all or substantially all of
the assets of the Corporation, except in each case of (i) and (ii), for a
Surviving Combination.
"Liquidation Preference" shall have the meaning ascribed thereto in
Paragraph 4 below.
"Non-Surviving Combination" shall mean any merger, consolidation or
other business combination between the Corporation and one or more other Persons
which is not a Surviving Combination, or a sale of all or substantially all of
the assets of the Corporation and its subsidiaries, taken as a whole, to one or
mores such other Persons.
"Offering" means that certain private placement of up to 1,038,061
shares of Series E Stock, 705,879 shares of Series F Stock and Common Stock
Purchase Warrants undertaken by the Corporation commencing on or about January
14, 2003.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Preferred Stock" means the preferred stock, par value $0.01 per share,
of the Corporation.
"Series C Stock" means the Series C Preferred Stock, par value $0.01
per share, of the Company.
Series F Stock" means the Series F Preferred Stock, par value $0.01 per
share, of the Company.
"Surviving Combination" means any merger, consolidation or sale of
assets in which the Corporation is the surviving corporation, the holders of the
Series E Stock outstanding immediately prior to such transaction will hold the
same number of shares of Series E Stock with substantially identical
designations and preferences after such transaction as they held immediately
prior to such transaction, the voting power or the number of voting shares
outstanding immediately after such transaction plus the number of shares issued
as a result of such transaction does not exceed by more than 49% the voting
power of the total number of voting shares of the Corporation outstanding
immediately prior to such transaction, and the number of voting shares issuable
as a result of such transaction will not exceed by more than 49% the number of
voting shares of the Corporation outstanding immediately prior to the merger.
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2. Ranking. Except as set forth herein with respect to shares of Series
C Stock, or as may be waived by the holders of a majority of the Series E Stock
then outstanding, the Series E Stock shall rank pari pasu with all other issued
and outstanding shares of Preferred Stock.
3. Dividends.
(a) Holders of the Series E Stock shall be entitled to receive, out
of any funds of the Corporation legally available therefore ("Legally Available
Funds") pursuant to the DGCL, dividends, payable at the discretion of the Board
of Directors in cash or in additional shares of Series E Stock (valued at the
Fair Market Value of the shares of Common Stock into which the Series E Stock is
then convertible), in an amount equal to four percent (4%) of the Issuance
Consideration (plus all accrued but unpaid dividends), per share, per annum. The
dividends payable hereunder shall be payable quarterly, on the first business
day of each calendar quarter to holders of record as they appear on the stock
books of the Corporation on the applicable record date, which shall be not more
than 60 nor less than 10 days preceding the payment date for such dividends, as
fixed by the Board of Directors
(b) Dividends on the shares of Series E Stock shall accrue and be
cumulative from the date of issuance based on a 360-day year consisting of
twelve 30-day months, whether or not (i) dividends on such shares are declared
or (ii) there shall be funds legally available to the Corporation for the
payment of the dividends.
(c) Dividends shall be payable on parity with all other series of
Preferred Stock which rank junior to or pari passu with the Series E Stock. No
dividends shall be paid on Common Stock, unless all accumulated but unpaid
dividends on the shares of Series E Stock and all other series of Preferred
Stock for all past dividend periods and for the current dividend period shall
have been declared and paid.
(d) In the event the Board of Directors shall declare a cash
dividend payable upon the outstanding shares of Common Stock out of Legally
Available Funds, the Board of Directors shall at the same time declare a
dividend payable on each share of Series E Stock equal to the amount of the
dividend payable on the number of shares of Common Stock into which each such
share of Series E Stock could then be converted into pursuant to the provisions
of Section 6 below, such number to be determined as of the record date for the
determination of holders of Common Stock entitled to receive such dividends.
4. Preference on Dissolution, Liquidation or Winding Up.
(a) In the event of the occurrence of a Liquidation Event, after all
amounts due to the holders of Series C Stock have been paid as a result of such
Liquidation Event, each holder of Series E Stock shall be entitled to receive,
in preference to the holders of Common Stock or any other class of stock or
series thereof ranking junior to the Series E Stock with respect to the
distribution of assets, an amount equal to the product of the number of shares
of Series E Stock held multiplied by the Issuance Consideration, plus an amount
equal to all dividends accrued and unpaid thereon (including interest accrued
thereon, if applicable) to the date fixed for distribution, and no more (the
"Liquidation Preference"). If Legally Available Assets for distribution upon the
occurrence of a Liquidation Event are insufficient to satisfy in
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full the Liquidation Preference, then the Liquidation Preference shall be
reduced to such amount as can be satisfied out of the Legally Available Assets,
and such amounts shall be paid to the holders of the Series E Stock on a pari
passu basis (based on the number of shares of Series E Stock held by each such
holder).
(b) Written notice of the occurrence of a Liquidation Event, stating
a payment date and the place where the distributable amounts shall be payable
shall be given by mail, postage prepaid, not less than 20 days prior to the
payment date stated therein, to the holders of record of the Series E Stock at
their respective addresses as the same shall appear on the books of the
Corporation.
(c) No payment on account of such Liquidation Event shall be made to
the holders of any class or series of capital stock ranking on a parity with the
Series E Stock in respect of the distribution of assets, unless there shall
likewise be paid at the same time to the holders of the Series E Stock like
proportionate distributive amounts, ratably, in proportion to the full
distributive amounts to which they and the holders of such parity stock are
respectively entitled with respect to such preferential distribution.
5. Voting Rights. Except as otherwise provided in this Certificate of
Designations, each holder of Series E Stock shall be entitled to vote on all
matters submitted for a vote of the holders of Common Stock a number of votes
equal to the number of full shares of Common Stock into which such holder's
shares of Series E Stock could then be converted pursuant to the provisions of
Paragraph 6 below, such number to be determined as of the record date for the
determination of holders of Common Stock entitled to vote on any such matter,
or, if no record date is fixed, then the record date for determination of
holders of Series E Stock entitled to vote at a meeting of stockholders shall be
at the close of business on the day next preceding the day on which such meeting
is held. Except as otherwise required in this Certificate of Designations or by
the Delaware General Corporation Law, the holders of the Series E Stock shall
vote with the holders of outstanding Common Stock and any other preferred shares
entitled to vote on any such matter, and not as a separate class or series.
6. Conversion Rights. Each share of Series E Stock may be converted
into shares of Common Stock on the terms and conditions set forth in this
Section 6:
(a) Each share of Series E Stock shall be convertible at the option
of the holder thereof, at any time and from time to time, in the manner
hereinafter set forth, into a number of fully-paid and nonassessable shares of
Common Stock (rounded to the nearest whole number) at the Conversion Rate in
effect at the time of conversion determined as hereinafter provided.
(b) Each share of Series E Stock shall convert automatically, and
without any action on the part of the holder thereof, into the number of
fully-paid and nonassessable shares of Common Stock (rounded to the nearest
whole number) determined by applying the Conversion Rate then in effect, at such
time as the closing price of the Common Stock (as reported on the primary market
on which the Common Stock is then trading (e.g., Nasdaq National Market System,
Nasdaq Small Cap Market System, Bulletin Board System)) for any ten (10)
consecutive
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trading days is greater than or equal to $2.00 per share (as adjusted for stock
splits, stock dividends, recapitalizations and the like) (a "Conversion Event").
(c) Upon conversion of any Series E Stock, all accrued and unpaid
dividends on the Series E Stock so converted shall be paid in cash.
(d) Upon the occurrence of a Conversion Event, the Corporation shall
prepare a notice stating that a Conversion Event has occurred and setting forth
in detail the facts, and such notice shall forthwith be mailed by first class
mail to the holders of the Series E Stock at their last known address shown on
the stock books of the Corporation.
(e) Upon receipt of written notice of a Conversion Event, each
holder of Series E Stock shall (i) surrender the certificate or certificates
therefor, duly endorsed, at the office of any transfer agent for such Series E
Stock, or if there is no such transfer agent, then at the principal executive
offices of the Corporation and (ii) state in writing therein the name or names
in which such holder wishes the certificate or certificates for the Common Stock
to be issued. The Corporation shall, as soon as practicable thereafter, issue
and deliver at the last known address of each holder of the Series E Stock, or
to his nominee or nominees, certificates for the number of full shares of Common
Stock to which he shall be entitled, as aforesaid, together with cash in lieu of
any fraction of a share as hereinafter provided. Such conversion shall be deemed
to have been made on the date of the Conversion Event, and the person or persons
entitled to receive the Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such Common Stock on
said date.
(f) If the Corporation shall at any time (i) pay or make a dividend
or other distribution on any class or series of capital stock of the Corporation
in Common Stock, (ii) subdivide (by means of a stock split or otherwise) its
outstanding Common Stock into a larger number of shares or (iii) combine (by
means of a reverse stock split or otherwise) its outstanding Common Stock into a
smaller number of shares, the Conversion Rate for the Series E Stock in effect
immediately prior thereto shall be adjusted so that each share of Series E Stock
shall thereafter be convertible into the number of shares of Common Stock which
the holder of one share of Series E Stock would have been entitled to receive
after the happening of any of the events described above had such stock been
converted into Common Stock immediately prior to the record date, if any, in the
case of a dividend, distribution, subdivision or combination with respect to
which the Corporation has fixed a record date for the determination of
stockholders entitled to receive such dividend, distribution, subdivision or
combination or, if no such record date has been fixed, the effective date of
such dividend, distribution, subdivision or combination. An adjustment made
pursuant to this subparagraph (f) shall be effected at the time such dividend or
distribution is made or paid or such subdivision or combination is effected and
shall be effective retroactively with respect to conversions effected subsequent
to any record date described in the immediately preceding sentence.
(g) In case at any time or from time to time the Corporation shall
pay any dividend or make any other distribution to the holders of Common Stock
of (i) any securities or property of any nature whatsoever (other than cash or
as provided in subparagraph (f) above), or (ii) any warrants or other rights to
subscribe for or purchase capital stock of the Corporation, then the Conversion
Rate shall be adjusted to that number determined by multiplying the
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Conversion Rate immediately prior to such adjustment by a fraction (A) the
numerator of which shall be the fair value (as determined in good faith by the
Board of Directors) per share of Common Stock at the date of taking such record
and (B) the denominator of which shall be such fair value per share of Common
Stock minus the portion applicable to one share of Common Stock of the fair
value (as determined in good faith by the Board of Directors) of any and all
such securities or property to be distributed. A reclassification of the Common
Stock into Common Stock and shares of any other class of securities shall be
deemed a distribution by the Corporation to the holders of its Common Stock of
such other Common Stock and of such other class of securities within the meaning
of this subparagraph and, if the outstanding Common Stock shall be changed into
a larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination, an
the case may be, of the outstanding Common Stock within the meaning of
subparagraph (f) above.
(h) In case at any time or from time to time the Corporation shall
issue or sell any Additional Stock for a consideration per share less than the
Issuance Consideration, then the Conversion Rate shall be adjusted to that
number determined by multiplying the Conversion Rate immediately prior to such
adjustment by a fraction (i) the numerator of which shall be the number of
shares of Common Stock (including shares of Common Stock underlying the Series E
Stock) outstanding immediately prior to the issuance of such shares of
Additional Stock plus the number of such shares of Additional Stock so issued
and (ii) the denominator of which shall be the number of shares of Common Stock
(including shares of Common Stock underlying the Series E Stock) outstanding
immediately prior to the issuance of the shares of Additional Stock plus the
number of shares of Common Stock which the aggregate consideration for the total
number of such shares of Additional Stock so issued would purchase at the
Conversion Price in effect immediately prior to the issuance of the Additional
Stock. For the purposes of this subparagraph, the date as of which the
Conversion Price of the Common Stock shall be computed shall be the earlier of
(i) the date on which the Corporation shall enter into a firm contract for the
issuance of such Additional Stock or (ii) the date of actual issuance of such
Additional Stock. The provisions of this subparagraph shall not apply to any
issuance of Additional Stock for which an adjustment is provided under
subparagraph (g) above. No adjustment of the Conversion Rate shall be made under
this subparagraph upon the issuance of any shares of Additional Stock which are
issued pursuant to the exercise of any warrants or any other subscription or
purchase rights or pursuant to the exercise of any conversion or exchange rights
in any Convertible Securities, if any such adjustment shall previously have been
made upon the issuance of such warrants or other rights or upon the issuance of
such Convertible Securities (or upon the issuance of any warrant or other rights
therefor) pursuant to subparagraph 5(f) or (g) above.
(i) In case at any time or from time to time the Corporation shall
distribute or shall in any manner (whether directly or indirectly) issue or sell
any Convertible Securities (excluding Exempt Issuances), whether or not the
rights to exchange or convert thereunder are immediately exercisable, and the
consideration per share for which additional Common Stock may at any time
thereafter be issuable pursuant to such warrants, options or other rights or
pursuant to the terms of such Convertible Securities shall be less than the
Issuance Consideration, then the Conversion Rate shall adjusted as provided in
subparagraph (h) above on the basis that (i) the maximum number of shares of
Additional Stock issuable pursuant to all such Convertible Securities on the
date of issuance of such Convertible Securities shall be deemed to
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have been issued as of the date of the determination of the Conversion Price as
hereinafter provided, and (ii) the aggregate consideration for such maximum
number of shares of Additional Stock shall be deemed to be the minimum
consideration received and receivable by the Corporation for the issuance of
such Convertible Securities. For the purposes of this subparagraph, the date on
which the Conversion Price shall be computed shall be the earliest of (i) the
date on which the Corporation shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive any such Convertible
Securities, (ii) the date on which the Corporation shall enter into a firm
contract for the issuance of such Convertible Securities or (iii) the date of
actual issuance of such Convertible Securities. No adjustment of the Conversion
Rate shall be made under this subparagraph upon the issuance of any Convertible
Securities which are issued pursuant to the exercise of any warrants or any
subscription or purchase rights therefor, if any such adjustment shall
previously have been made upon the issuance of such warrants or other rights
pursuant to any of the above subparagraphs.
(j) If, at any time after any adjustment of the Conversion Rate
shall have been made pursuant to any of the above subparagraphs on the basis of
the issuance of Convertible Securities, or after any new adjustments of the
Conversion Rate shall have been made pursuant to this subparagraph (j),
(i) such warrants or rights or the right of conversion or
exchange in such other Convertible Securities shall expire, and a
portion of such warrants or rights, or the right of conversion or
exchange in respect of a portion of such other Convertible
Securities, as the came may be, shall not have been exercised,
and/or
(ii) the consideration per share, of which shares of Common
Stock are issuable pursuant to such warrants or rights or the terms
of such other Convertible Securities, shall be increased solely by
virtue of provisions therein contained for an automatic increase in
such consideration per share upon the arrival of a specified date or
the happening of a specified event,
such previous adjustment shall be rescinded and annulled as to any shares of
Series E Stock then outstanding and the shares of Common Stock which were deemed
to have been issued by virtue of the computation made in connection with the
adjustment so rescinded and annulled, shall no longer be deemed have been issued
by virtue of such computation. Thereupon, a recomputation (assuming that all
shares of Series E Stock on the date of the initial computation are outstanding
on the date of such recomputation) shall be made of the affect of such rights or
options or other Convertible Securities on the basis of
(i) treating the number of shares of Common Stock, if any,
theretofore issued or issuable pursuant to the previous exercise of
such warrants or rights or right of conversion or exchange, as
having been issued on the date or dates of such exercise and for the
consideration actually received and receivable therefor, and
(ii) treating any such warrants or rights or any such other
Convertible Securities which then remain outstanding as having been
granted or issued immediately after the time of such increase of the
consideration per share for
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which shares of Common Stock are issuable under such warrants or
rights or other Convertible Securities; and, if and to the extent
called for by the foregoing provisions of this Paragraph on the
basis aforesaid, a new adjustment of the Conversion Rate shall be
made, which new adjustment shall supersede the previous adjustment
so rescinded and annulled.
(k) The following provisions of this subparagraph (k) shall also be
applicable to the making of adjustments to the Conversion Rate:
(i) To the extent that any Additional Stock or any Convertible
Securities or any warrants or other rights to subscribe for or
purchase any Additional Stock or any Convertible Securities shall be
issued for a cash consideration, the consideration received by the
Corporation therefor shall be deemed to be the amount of the cash
received by the Corporation therefor, or, if such Additional Stock
or Convertible Securities are offered by the Corporation for
subscription, the subscription price, or, if such Additional Stock
or Convertible Securities are sold to underwriters or dealers for
public offering without a subscription offering, the initial public
offering price, in any such case without deduction of any
compensation, discounts or expenses paid or incurred by the
Corporation for and in the underwriting of, or otherwise in
connection with, the issuance thereof. To the extent that such
issuance shall be for a consideration other than cash, then except
as herein otherwise expressly provided, the amount of such
consideration shall be deemed to be the fair value of such
consideration at the time of such issuance as determined in good
faith by the Board of Directors. In case any shares of Additional
Stock or any Convertible Securities or warrants or other rights to
subscribe for or purchase such Additional Stock or Convertible
Securities shall be issued in connection with any consolidation or
merger in which the Corporation issues any securities, the amount of
consideration therefor shall be deemed to be the fair value, as
determined in good faith by the Board of Directors, of such portion
of the assets and business of the non-surviving corporation as such
Board of Directors in good faith shall determine to be attributable
to such Additional Stock, Convertible Securities, warrants or other
rights, as the case may be. The consideration for any Additional
Stock issuable pursuant to any warrants or other rights to subscribe
for or purchase the same shall be the consideration received by the
Corporation for issuing such warrants or other rights, plus the
minimum additional consideration payable to the Corporation upon the
exercise of such warrants or other rights. The consideration for any
Additional Stock issuable pursuant to the terms of any Convertible
Securities shall be the consideration received by the Corporation
for issuing any warrants or other rights to subscribe for or
purchase such Convertible Securities, plus the minimum consideration
paid or payable to the Corporation in respect of the subscription
for or purchase of such Convertible Securities, plus the minimum
additional consideration, if any, payable to the Corporation upon
the exercise of the right of conversion or exchange in such
Convertible Securities. In case of the issuance at any time of any
Additional Stock or Convertible Securities in payment or
satisfaction of any dividends upon any class of capital stock other
than Common Stock, the Corporation shall be deemed to have received
for such
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Additional Stock or Convertible Securities consideration equal to
the amount of such dividend so paid or satisfied.
(ii) The adjustments required by this Paragraph 6 shall be made
whenever and as often as any specified event requiring an adjustment
shall occur, except that no adjustment shall be made (except in the
case of a subdivision or combination of shares of the Common Stock,
as provided for in subparagraph(f) above) unless and until such
adjustment either by itself or with other adjustments not previously
made adds or subtracts at least 1/20th of a share to or from the
Conversion Rate in effect immediately prior to the making of such
adjustment. Any adjustment representing a change of less than such
minimum amount (except as aforesaid) shall be carried forward and
made so soon as such adjustment, together with other adjustments
required by this Paragraph 6 and not previously made, would result
in a minimum adjustment. For the purpose of any adjustment, any
specified event shall be deemed to have occurred at the close of
business on the date of its occurrence.
(iii) If the Corporation shall take a record of the holder of
its Common Stock for the purpose of entitling them to receive a
dividend or distribution or subscription or purchase rights and
shall, thereafter and before the distribution to stockholders
thereof, legally abandon its plan to pay or deliver such dividend,
distribution, subscription or purchase rights, then thereafter no
adjustment shall be required by reason of the taking of such record
and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(l) In the case of a merger, or the sale or conveyance of all or
substantially all of the assets of the Corporation for which approval of the
holders of the Common Stock is necessary, or in the case of any capital
reorganization or any reclassification or similar change of the outstanding
Common Stock (other than as at forth in subparagraph (f) above), each share of
Series E Stock, if any, outstanding following such transaction shall thereafter
be convertible into the kind and amount of securities or other securities or
cash or other property receivable upon such merger, sale, conveyance,
reorganization, reclassification or change by a holder of the number of shares
of Common Stock into which such Series E Stock might have been converted
immediately prior to such merger, sale, conveyance reorganization,
reclassification or change, assuming such holder of Common Stock failed to
exercise his rights of election, if any, as to the kind and amount of stock or
other securities or cash or other property receivable upon such merger, sale,
conveyance, reorganization, reclassification or change (provided that if the
kind and amount of stock or other securities or cash or other property
receivable upon such merger, sale, conveyance, reorganization, reclassification
or change is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("non-electing shares")
then for the purpose of this subparagraph the kind and amount of stock or other
securities or cash or other property receivable upon such merger, sale,
conveyance, reorganization, reclassification or change by each non-electing
share shall be deemed to be the kind and amount so receivable by a plurality of
the non-electing share); and, in any such case, appropriate adjustments (as
determined in good faith by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to the rights and
interests thereafter of the holders of the Series E Stock to the and that the
provisions set forth heroin (including
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provisions with respect to changes in and other adjustments of the Conversion
Rate) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any stock or other property thereafter deliverable upon the
conversion of the Series E Stock.
(m) Whenever the Conversion Rate or terms of conversion are adjusted
or readjusted as herein provided, the Corporation shall prepare a notice setting
forth such adjustment or readjustment and showing in detail the facts upon which
each adjustment or readjustment is based, and such notice shall forthwith be
mailed by first class mail to the holders of shares of Series E Stock so
affected at their last known address shown on the stock books of the
Corporation.
(n) The Corporation shall at all times reserve and keep available,
out of its authorized but unissued Common Stock or out of Common Stock held in
its treasury, solely for the purpose of effecting the conversion of the Series E
Stock, the full number of shares of Common Stock deliverable upon the conversion
of all Series E Stock from time to time outstanding. The Corporation shall from
time to time in accordance with the General Corporation Law of the State of
Delaware increase the authorized amount of its Common Stock if at any time the
authorized number of share of Common Stock remaining unissued shall not be
sufficient to permit the conversion of all of the Series E Stock outstanding
from time to time.
(o) No fractional shares of Common Stock are to be delivered upon
conversion, but the Corporation shall pay a cash adjustment in respect of any
fraction of a share which would otherwise be deliverable in an amount equal to
the same fraction of the current market price per share of Common Stock on the
date of conversion, such current market price to be determined in good faith by
the Board of Directors.
(p) The Corporation will pay any issue and other taxes (other than
income taxes) that may be payable in respect of any issue or delivery of Common
Stock on conversion of Series E Stock pursuant hereto. The Corporation shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of stock in a name other than that
in which the shares of Series E Stock so converted were registered, and no such
issue or delivery shall be made unless and until the person requesting such
issue or delivery has paid to the Corporation the amount of any such tax, or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
(q) Notwithstanding anything to the contrary contained in this
Section 6, in the event that an adjustment pursuant to Sections 6(h), (i), (j)
or (k) could result in the Corporation issuing in excess of an aggregate of Four
Million (4,000,000) shares of Common Stock (as adjusted for stock-splits, stock
dividends, recapitalizations and the like) upon the conversion into shares of
Common Stock of all the Series E Stock and the Series F Stock and the exercise
of all warrants to purchase Common Stock issued in the Offering (a "Complete
Conversion"), then the adjustment in the number of shares of Common Stock into
which the Series E Stock may be converted shall be limited to that number of
shares of Common Stock necessary to limit a Complete Conversion to Four Million
(4,000,000) shares of Common Stock (as adjusted for stock-splits, stock
dividends, recapitalizations and the like).
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7. Notices of Record Date. In the event that the Corporation shall
propose at any time:
(a) to declare any dividend or distribution upon its Common Stock,
whether in cash, property, stock or other securities, whether or not a regular
cash dividend and whether or not out of earnings or earned surplus;
(b) to offer for subscription pro rata to the holders of Common
Stock any additional shares of stock of any class or series or other rights;
(c) to effect any reclassification or recapitalization of its Common
Stock outstanding involving a change in the Common Stock; or
(d) to merge or consolidate with or into any other corporation, or
sell, lease or convey all or substantially all of its property or business, or
to liquidate, dissolve or wind up;
then, in connection with any such event, the Corporation shall send to the then
holders of record of Series E Stock (the "Record Holders"):
(i) in the case of the matters referred to in (a) and (b) above,
at least ten (10) days prior written notice of the date on which a
record shall be taken for such dividend, distribution or
subscription rights (and specifying the date on which the holders of
Common Stock shall be entitled thereto) or for determining rights to
vote in respect of the matters referred to in (a) or (b) above; and
(ii) in the case of the matters referred to in (c) and (d), at
least ten (10) days prior written notice of the date when the same
shall take place (and specifying the date on which the holders of
Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon the occurrence of such
event) or for determining rights to vote in respect of the matters
referred to in (c) or (d) above.
Each such written notice shall be delivered or given by first class
mail, postage prepaid, addressed to the Record Holders at the address for each
such holder as shown on the books and records of the Corporation.
IN WITNESS WHEREOF, Mobility Electronics, Inc. has caused hereunto this
certificate to be signed by its Secretary on January 14, 2003.
MOBILITY ELECTRONICS, INC.
By: /s/ Richard F. Dahlson
Richard F. Dahlson, Secretary
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