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AMENDED AND RESTATED
CERTIFICATE OF DESIGNATION, PREFERENCE
AND RIGHTS OF SERIES A CONVERTIBLE
PREFERRED STOCK OF eVENTURES GROUP, INC.
I, STUART J. CHASANOFF, being the Vice President and Secretary of
eVENTURES GROUP, INC., a corporation organized and existing under the laws of
Delaware (the "Corporation"), DO HEREBY CERTIFY that, pursuant to authority
conferred upon the Board of Directors by the Amended Certificate of
Incorporation and Section 151 of the Delaware General Corporation Law, the Board
of Directors, at a meeting duly called and held on the 14th day of October,
1999, adopted the following resolution providing for the issuance of a series of
Preferred Stock:
RESOLVED, that pursuant to authority vested in the Board of Directors
by Article Fourth of the Amended Certificate of Incorporation of this
Corporation, a series of 1,200 shares of Preferred Stock, par value
$0.00002 per share, is hereby established, the distinctive designation
of which shall be "Series A Convertible Preferred Stock" (such series
being hereinafter called "Series A Stock"), and the preferences and
relative, participating, optional or other special rights of Series A
Stock, and the qualifications, limitations or restrictions thereof (in
addition to the relative powers, preferences and rights, and
qualifications, limitations or restrictions thereof, set forth in
Article Fourth of the Amended Certificate of Incorporation of the
Corporation which are applicable to shares of Preferred Stock of all
series) shall be as follows:
SERIES A CONVERTIBLE PREFERRED STOCK
PART 1. DIVIDENDS.
1.01 NO DIVIDEND OBLIGATION. The holders of the Series A Stock shall
have no rights to the payment of dividends on the Series A Stock
(regardless of whether the Corporation declares or pays dividends on
any other class of preferred stock or common stock of the Corporation).
PART 2. REDEMPTION.
2.01 OPTIONAL REDEMPTION. All or any shares of Series A Stock may be
redeemed by the Corporation at its election at any time and from time
to time expressed by resolution of its Board of Directors, in the
manner prescribed in this Part 2, provided that in any redemption under
this Section 2.01 the Corporation shall redeem not less than 750 shares
of Series A Stock.
2.02 [INTENTIONALLY OMITTED.]
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2.03 REDEMPTION NOTICE. Before making any redemption pursuant to
Section 2.01, the Corporation shall mail by certified or registered
mail, return receipt requested, to each record holder of any shares of
Series A Stock at the address shown on the Corporation's records, a
written notice (a "Redemption Notice"), stating: (i) the number of
shares of Series A Stock held by record by such holder which the
Corporation proposes to redeem; (ii) the date (herein called the
"Redemption Date") on which the Corporation proposes to pay the
Redemption Price for the shares to be redeemed; (iii) the Redemption
Price which is to be paid for each share repurchased; and (iv) the
place at which the shares to be redeemed may be surrendered in exchange
for the Redemption Price for such shares. Upon the mailing of a
Redemption Notice with respect to any optional repurchase which the
Corporation may choose to make pursuant to rights granted in Section
2.01, the Corporation shall become obligated to redeem the shares of
Series A Stock specified in such notice on the date specified in such
notice as the Redemption Date. Each Redemption Notice under Section
2.01 shall be mailed at least 10 days before the Redemption Date,
provided that if the Corporation fails to pay the Redemption Price on
such date ( for a reason other than a holder's failure to deposit
Series A Stock share certificates pursuant to Section 2.05(b)), the
Redemption Date shall be the date on which the Corporation actually
pays the Redemption Price.
2.04 DETERMINATION OF NUMBER OF EACH HOLDER'S SHARES TO BE REDEEMED.
The number of shares of Series A Stock to be redeemed from each holder
thereof in repurchases under Section 2.01 shall be determined by
multiplying the total number of shares of Series A Stock to be redeemed
times a fraction, the numerator of which shall be the total number of
shares of Series A Stock held by such holder and the denominator of
which shall be the total number of shares of Series A Stock
outstanding.
2.05 REDEMPTION PRICE.
(a) For each share of Series A Stock which shall be redeemed
by the Corporation at any time for any reason in redemptions pursuant
to Section 2.01, the Corporation shall be obligated to pay to the
holder of such share an amount (herein called the "Redemption Price"
for such share) equal to the Liquidation Value of such share. Such
payments shall be deemed to become "due" for all purposes of this
Section regardless of whether the Corporation shall be able or legally
permitted to make such payments on such Redemption Date.
(b) Each holder of Series A Stock shall be entitled to receive
on or at any time after any Redemption Date the full Redemption Price
for each share of Series A Stock held by such holder which the
Corporation shall be obligated to redeem on such Redemption Date upon
surrender by such holder at the Corporation's principal office of the
certificate representing such share duly endorsed in blank or
accompanied by an appropriate form of assignment duly endorsed in
blank. After the payment by the Corporation in the manner required
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by Section 4.03 of the full Redemption Price for any Series A Stock,
all rights of the holder of such share shall have been surrendered for
cancellation) cease and terminate with respect to such shares except,
Series A Stock as provided in Section 8 hereof.
2.06 ALLOCATION OF PARTIAL REDEMPTION PAYMENTS AMONG HOLDERS OF SERIES
A STOCK. If any time the Corporation shall not be able to pay the full
Redemption Price for all Series A Stock which the Corporation shall
have become obligated to redeem at or prior to such time in redemptions
under Section 2.01, each holder of shares of Series A Stock shall have
the right to have redeemed by the Corporation a number of such holder's
shares of Series A Stock equal to the product derived by multiplying
the total number of shares of Series A Stock which the Corporation
shall be able to redeem at such time times a fraction, the numerator of
which shall be the total number of shares of Series A Stock which the
Corporation shall have become obligated to redeem from such holder at
or prior to such time (but which the Corporation shall not have
redeemed at or prior to such time) and the denominator of which shall
be the total number of shares of Series A Stock which the Corporation
shall have become obligated to redeem at or prior to such time (but
which the Corporation shall not have redeemed at or prior to such
time).
2.07 REDEEMED SHARES OF SERIES A STOCK TO BE CANCELED. The Corporation
shall cancel each share of Series A Stock which it shall redeem or for
any other reason acquire, and no share of Series A Stock which shall be
redeemed or otherwise acquired by the Corporation shall thereafter be
reissued, sold, or transferred by the Corporation to any person. The
number of shares of Series A Stock which the Corporation shall be
authorized to issue shall be deemed to be reduced by the number of
shares of Series A Stock which the Corporation shall redeem or
otherwise acquire.
PART 3. LIQUIDATION.
3.01 RIGHTS OF HOLDERS OF SERIES A STOCK. In the event of any voluntary
or involuntary liquidation (whether complete or partial), dissolution
or winding up of the Corporation, the holders of shares of Series A
Stock shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders, whether from capital,
surplus or earnings, an amount in cash equal to the sum of one thousand
dollars ($1,000) per share (the "Liquidation Value").
3.02 ALLOCATION OF LIQUIDATION PAYMENTS AMONG HOLDERS OF STOCK. If upon
any dissolution, liquidation (whether complete or partial), or winding
up of the Corporation, the assets of the Corporation available for
distribution to holders of shares of Series A Stock (hereinafter in
this Section 3.02 called the "Total Amount Available") shall be
insufficient to pay the holders of outstanding shares of Series A Stock
the full amounts to which they shall be entitled under Section 3.01,
each holder of shares of Series A Stock shall be entitled to receive an
amount equal to the
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product derived by multiplying the Total Amount Available times a
fraction the numerator of which shall be the number of shares of Series
A Stock held by such holder and the denominator of which shall be the
total number of shares of Series A Stock then outstanding.
PART 4. ADDITIONAL PROVISIONS GOVERNING CUMULATIVE PREFERRED STOCK.
4.01 [INTENTIONALLY OMITTED.]
4.02 VOTING RIGHTS.
(a) Except as otherwise provided by the Certificate of
Incorporation or under the law, the entire voting power for the
election of directors and for all other purposes shall be vested
exclusively in the holders of the outstanding Common Stock and the
holder of shares of Series A Stock shall have no voting rights.
4.03 METHOD OF PAYMENT.
(a) Ordinary Payments. Any payment at any time due with
respect to any share of Series A Stock (including but not limited to
the payment of the Redemption Price for such share, and any payment due
on such share under Part 3) shall be made by means of a check (drawn
upon funds which are immediately available not later than the due date
of the payment being made by such check) to the order of the record
holder of such Share at the address for such record holder shown on the
Corporation's records, which check shall be mailed by United States
mail (by first class or any other class reasonably expected to effect
earlier delivery at such time so that such check should reasonably be
expected to arrive at the address to which it is required under this
sentence to be mailed) not later than the due date of the payment being
made by such check.
(b) When Payment Deemed to Have Been Made. Any payment at any
time due with respect to any share of Series A Stock (including but not
limited to payment of the Redemption Price for such share and any
payment due on such share under Part 3) shall be deemed to have been
paid by the Corporation at the time such payment shall have been
delivered pursuant to Section 4.03(a) the payment shall be deemed to
have been made on the date on which such check reasonably could have
been expected to be received by the addressee; and (ii) if any check or
other medium by which any payment shall be made shall prove not to be
immediately collectible on the due date of the payment being so made,
such payment shall not be deemed to have been made until cash in the
amount of such payment shall actually be received by the person
entitled to receive such payment.
4.04 AMENDMENT AND WAIVER. No change in the provision of this Section
affecting any interests of the holders of any shares of Series A Stock
shall be
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binding or effective unless such change shall have been approved in
writing by the holders of at least 66 2/3% of the shares of Series A
Stock outstanding at the time such change shall be made.
4.05 REGISTRATION OF TRANSFER OF PREFERRED STOCK. The Corporation will
keep at its principal office a register for the registration of the
shares of Series A Stock Upon the surrender of any certificate
representing shares of Series A Stock at the Corporation's principal
office, the Corporation will, at the request of the registered holder
of such certificate, execute and deliver, at the Corporation's expense,
a new certificate or certificates in exchange representing the number
of shares of Series A Stock represented by the surrendered certificate.
Each such new certificate shall be registered in such name and shall
represent such number of shares of Series A Stock as shall be requested
by the holder of the surrendered certificate and shall be substantially
identical in form to the surrendered certificate.
4.06 REPLACEMENT. Upon receipt by the Corporation of evidence
reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any certificate evidencing one or more
shares of Series A Stock (an affidavit of the Registered Holder,
without bond shall be satisfactory) the Corporation at its expense will
execute and deliver in lieu of such certificate, a new certificate of
like kind, representing the number of shares of Series A Stock which
shall have been represented by such lost, stolen, destroyed, or
mutilated certificate.
PART 5. [INTENTIONALLY OMITTED.]
PART 6. INTERPRETATION OF THIS INSTRUMENT.
6.01 DEFINITIONS. Each term defined in this Section 6.01 has the
meaning indicated in this instrument whenever such term is used in this
instrument.
(a) "AGREEMENT" means any agreement, as amended, modified or
extended, between the Corporation and any person holding Preferred
Stock, including, without limitation, Subscription Agreements executed
by the Corporation and such person.
(b) COMMON STOCK AND EXISTING COMMON STOCK. The term "Common
Stock" or "Common Shares" designates and includes the Corporation's
Existing Common Stock of all classes and any capital stock of any class
of the Corporation authorized after the date of the Agreement which
shall not be limited to a fixed sum or a percentage of par value in
respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon the voluntary or
involuntary liquidation or winding up of the Corporation. The term
"Existing Common Stock" designates the Corporation's authorized Common
Stock, par value $0.00002 per share, of all classes, as constituted on
the Closing Date as set forth in the Agreement.
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(c) CONVERSION SHARE. The term "Conversion Share" means one
share of the Corporation's authorized Common Stock, provided that if
under the provisions hereof, there shall be a change such that the
securities purchasable hereunder shall be issued by an entity other
than the Corporation or class of securities purchasable hereunder, then
the term "Conversion Share" shall mean one share of the security
purchasable upon the exercise of the rights granted hereunder if such
security shall be issuable in shares or shall mean the smallest unit in
which such security shall be issuable if such security shall not be
issuable in shares.
(d) CONVERSION SHARES. The term "Conversion Shares" means the
aggregate Conversion Shares at any time issuable upon conversion of the
Series A Stock at such time.
(e) CONVERSION PRICE. The term "Conversion Price" means the
Initial Conversion Price of five dollars ($5.00), as such price may be
adjusted from time to time pursuant to the provisions of Section 8
hereof.
(f) CORPORATION. The term "Corporation" means the corporation
filing this certificate and is sometimes herein referred to the
"Company".
(g) REGISTERED HOLDER. The term "Registered Holder" means the
holder of a share of Series A Stock as shown on the books and records
of the Corporation.
PART 7. CONVERSION RIGHTS.
7.01 DESCRIPTION AND CONVERSION PROCEDURE. The Series A shares shall be
convertible into an aggregate of 240,000 shares of the Common Stock of
the Corporation as hereinafter set forth.
(a) CONVERSION RiGHTS.
(i) Optional Conversion by the Holder. Except as expressly
herein provided otherwise, the Registered Holder of each share
of Series A Stock may exercise all or a portion of the
conversion rights at any time or from time to time after the
date of issuance and prior to the earlier to occur of (x) the
Corporation Conversion Date, (y) the Mandatory Conversion
Date, or (z) the date of redemption of the shares of such
Series A Stock;
(ii) Mandatory Conversion. On June 30, 2001 (the "Mandatory
Conversion Date"), each share of Series A Stock shall,
automatically and without further action on the part of any
Registered Holder of Series A Stock, be converted into the
number of shares of fully paid and nonassessable Common Stock
derived by dividing the Liquidation Preference by the
Conversion Price. Upon such conversion, each share of
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Series A Stock shall be canceled and not subject to
reissuance. On or before the twentieth (20th) Business Day
prior to the Mandatory Conversion Date, the Corporation shall
provide written notice (the "Mandatory Conversion Notice") to
the holders hereof of the Corporation's intention not to
exercise the redemption option provided for in Section 3
hereof and to allow the shares of Series A Stock to
automatically convert pursuant to this Section 7.01 (a) (ii).
The immediately preceding sentence notwithstanding, the
Corporation shall not be deemed to have waived its right to
redeem the Series A Stock pursuant to Section 3 hereof by
virtue of the issuance of the Mandatory Conversion Notice;
(iii) Optional Conversion by the Corporation. On the tenth
(10th) Business Day (the "Corporation Conversion Date")
immediately following the fifth (5th) consecutive Trading Day
(the "Trigger Date") on which the Market Price of the Common
Stock equals or exceeds ten dollars ($10.00) per share (the
"Target Price"), the Corporation may (but has no obligation
to) cause each outstanding shares of Series A Stock
(automatically and without further action on the part of any
holder of outstanding shares of Series A Stock) be converted
into the number of shares of fully paid and nonassessable
Common Stock derived by dividing the Liquidation Preference by
the Conversion Price. Upon such conversion, each share of
Series A Stock shall be canceled and not subject to
reissuance. On or before the fifth (5th) Business Day
following the Trigger Date, the Corporation shall provide
written notice (the "Corporation Conversion Notice") to the
holders of shares of Series A Stock of the Corporation's
intention not to exercise the redemption option provided for
in Section 3 hereof and to allow the shares of Series A Stock
to automatically convert pursuant to this Section 7.01 (a)
(iii). The immediately preceding sentence notwithstanding, the
Corporation shall not be deemed to have waived its right to
redeem the Series A stock pursuant to Section 3 hereof by
virtue of the issuance of the Corporation Conversion Notice.
Notwithstanding the foregoing, the Corporation may elect not
to exercise the conversion rights set forth in this paragraph
7.01 (a) (iii) by delivery of a written notice to that effect
at any time prior to the Trigger Date (whether or not a
Corporation Conversion Notice has been issued). Any waiver of
a particular Trigger Date shall not prejudice in any manner
the Corporation's rights under this paragraph 7.01 (a) (iii)
or Section 3. hereof.
(b) EXERCISE PROCEDURE. Any shares of Series A Stock shall be
deemed to have been exercised (the "Exercise Time") when the
Corporation shall have received the Certificate evidencing such shares
appropriately endorsed to reflect conversion thereof; whereupon the
Corporation shall issue so many shares of its Common Stock ("Conversion
Stock") computed on the basis of one share of Common Stock for five
dollars ($5.00) of Liquidation Value of the shares of Series A Stock so
converted.
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(c) DELIVERY OF NEW CERTIFICATES. Certificates for Conversion
Shares shall be delivered to the Holder named therein within 15 days
after the Exercise Time, acquirable Purchase Rights described in
Section 8.08. Unless all of the shares of Series A Stock evidenced by
the certificate delivered shall have been converted or shall have been
redeemed, the Corporation shall within a 15 day period prepare a new
certificate, substantially identical to that surrendered, representing
the balance of the shares of Series A Stock formerly represented by the
certificate which shall not have converted or redeemed and shall within
the said 15 day period deliver such certificate to the person
designated as the holder thereof.
(d) PAYMENT OF CONVERSION PRICE. Each share of Series A Stock
surrendered shall constitute payment of the Conversion Price equal to
the Liquidation Value of such share surrendered.
(e) RETURN OF CERTIFICATE. The certificates evidencing the
Series A Stock shall be endorsed to reflect the conversion of all or
such portion thereof as the Registered Holder determines to convert.
Unless the certificate surrendered contains an appropriate legend, the
certificate shall be accompanied by an appropriate investment
representation for purposes of confirming the availability of an
exemption from applicability of the registration provisions of the
Securities Act of 1933, as amended, signed by the Registered Holder of
such shares of Series A Stock. If the Conversion Shares are not to be
issued in the name of the Holder to whom the shares of Series A Stock
are registered, such Registered Holder shall also state the name of the
Person to whom the certificate for the Conversion Shares are to be
issued, and if the Conversion Shares to be issued shall not be all the
Conversion Shares into which the shares of Series A Stock may be
converted upon surrender of the shares of Series A Stock certificates
so surrendered, the name of the person to whom shall be delivered a new
certificate evidencing the balance of the shares of Series A Stock.
(f) ASSIGNMENT. Assignment of shares of Series A Stock shall
be in the form set forth on the reverse side of the certificate
evidencing same.
(g) AUTHORIZATION AND ISSUANCE. The Corporation covenants and
agrees that:
(i) the Conversion Shares issuable upon any conversion of any
shares of Series A Stock shall be deemed to have been issued
to the person exercising such conversion privilege at the
Exercise Time, and the person exercising such conversion
privilege shall be deemed for all purposes to have become the
record holder of such Conversion Shares at the Exercise Time;
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(ii) all Conversion Shares which may be issued upon any
conversion of any shares of Series A Stock will, upon
issuance, be fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issue thereof;
(iii) The Corporation will take all such action as may be
necessary to assure that all Conversion Shares issuable upon
conversion of Series A Stock may be issued without violation
of any applicable law or regulation or of any requirements of
any domestic securities exchange upon which securities of the
same class may be listed. The Corporation will not take any
action which would result in any adjustment of the Conversion
Price if the total number of shares of Common Stock issuable
after such action upon conversion of all Series A Stock
together with all shares of Common Stock then outstanding and
all shares of Common Stock then issuable upon the exercise of
all outstanding options, warrants, conversion and other
rights, would exceed the total number of shares of Common
Stock then authorized by the Corporation's Certificate of
Incorporation;
(iv) the issuance of certificates for Conversion Shares upon
conversion of Series A Stock shall be made without charge to
the Registered Holder thereof for any issuance tax in respect
thereof or other cost incurred by the Corporation in
connection with the conversion of the Series A Stock and the
related issuance of Conversion Shares; and
(v) The Corporation will at no time close its transfer books
against the transfer of the Series A Stock or of any
Conversion Share issued or issuable upon the conversion of the
Series A Stock in any manner which interferes with the timely
conversion of the Series A Stock.
(h) TRANSFERABILITY. The shares of Series A Stock and all
rights evidenced thereby are transferable on the Corporation's books by
the Registered Holder in person or by duly authorized attorney upon
surrender of certificate(s) evidencing said shares of Series A Stock
properly endorsed at the Corporation's principal office provided that
the Registered Holder complies with the provisions governing transfer
set forth in Section 4 of the Agreement.
(i) BREAKUP OF CERTIFICATES. Each certificate evidencing
shares of Series A Stock is exchangeable, upon the surrender of the
certificate by the Registered Holder at the Corporation's principal
office, for a new certificate or certificates of like tenor
representing in the aggregate the right to purchase the number of
Conversion Shares which may be purchased under the Certificate
surrendered, each of which new certificates shall represent the right
to purchase the number of Conversion Shares as shall be designated by
the Registered Holder of this certificate at the time of such
surrender.
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PART 8. ANTIDILUTION PROVISIONS.
8.01 ADJUSTMENT OF NUMBER OF SHARES. In order to prevent dilution of
the rights granted hereunder, the Conversion Price shall be subject to
adjustment from time to time in accordance with this Part 8. At any
given time the Conversion Price, whether as the Initial Price of five
dollars ($5.00) per share or as last adjusted, shall be that dollar (or
part of a dollar) amount the payment of which shall be sufficient at
the given time to acquire one Conversion Share. Upon each adjustment of
the Conversion Price pursuant to this Part 8, the Registered Holder of
the shares of Series A Stock shall thereafter be entitled to acquire
upon exercise, at the Conversion Price resulting from such adjustment,
the number of Conversion Shares obtainable by multiplying the
Conversion Price in effect immediately prior to such adjustment by the
number of Conversion Shares acquirable immediately prior to such
adjustment and dividing the product thereof by the Conversion Price
resulting from such adjustment.
8.02 LIQUIDATING DIVIDENDS. In the event the Corporation shall declare
a dividend upon the Common Stock (other than a dividend payable in
Common Stock) payable otherwise than out of earnings or earned surplus,
determined in accordance with generally accepted accounting principles,
including the making of appropriate deductions for minority interests,
if any, in subsidiaries (herein referred to as "Liquidating
Dividends"), then as soon as possible after the conversion of any
shares of Series A Stock the Corporation shall pay to the person
converting such shares of Series A Stock an amount equal to the
aggregate value at the time of such exercise of all Liquidating
Dividends (including but not limited to the Common Stock which would
have been issued at the time of such earlier exercise and all other
securities which would have been issued with respect to such Common
Stock by reason of stock splits, stock dividends, mergers or
reorganizations, or for any other reason). For the purposes of this
Section 8.02, a dividend other than in cash shall be considered payable
out of earnings or earned surplus only to the extent that such earnings
or earned surplus are charged an amount equal to the fair value of such
dividend.
8.03 SUBDIVISION OR COMBINATION OF STOCK. In case the Corporation shall
at any time subdivide (other than by means of a dividend payable in
Common Stock) its outstanding shares of Common Stock into a greater
number of shares, the Conversion Price in effect immediately prior to
such subdivision shall be appropriately reduced, and, conversely, in
case the outstanding shares of Common Stock of the Corporation shall be
combined into a smaller number of shares, the Conversion Price in
effect immediately prior to such combination shall be proportionately
increased.
8.04 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE.
If any capital reorganization or reclassification of the capital stock
of the Corporation, or consolidation or merger of the Corporation with
another corporation, or the sale of all or substantially all of its
assets to another corporation shall be effected in such a way that
holders of Common Stock shall be
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entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate
provision shall be made whereby the Registered Holders of the shares of
Series A Stock shall thereafter have the right to acquire and receive
upon conversion of the shares of Series A Stock such shares of stock,
securities or assets as would have been issuable or payable (as part of
the reorganization, reclassification, consolidation, merger or sale)
with respect to or in exchange for such number of outstanding shares of
the Corporation's Common Stock as would have been received upon
conversion of the Series A Stock immediately before such
reorganization, reclassification, consolidation, merger or sale and the
number of Common Shares that would have been so received), and in any
such case appropriate provisions shall be made with respect to the
rights and interests of the holders of the Series A Stock to the end
that the provisions hereof (including without limitation provisions for
adjustments of the Conversion Price and of the number of Conversion
Shares acquirable and receivable upon the conversion of the Series A
Stock) shall thereafter be applicable, in relation to any shares of
stock, securities or assets thereafter deliverable upon the conversion
of the Series A Stock. In the event of a merger or consolidation of the
Corporation with or into another corporation or the sale of all or
substantially all of its assets as a result of which a number of shares
of Common Stock of the surviving or purchasing corporation, greater or
lesser than the number of shares of Common Stock of the Corporation
outstanding immediately prior to such merger, consolidation or purchase
are issuable to holders of Common Stock of the Corporation, then the
Conversion Price in effect immediately prior to such merger,
consolidation or purchase shall be adjusted in the same manner as
though there were a subdivision or combination of the outstanding
shares of Common Stock of the Corporation.
8.05 NOTICES. In the event that:
(a) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the
Company with, or sale of all or substantially all of its assets to,
another corporation; or
(b) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in connection with such event, the Company shall give to the
Registered Holders of the shares of Series A Stock at least twenty (20)
days prior written notice of the date when the same shall take place.
Such notice shall also specify the date on which the holders of Common
Stock shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reorganization,
reclassification, consolidation, merger or sale, dissolution,
liquidation or winding up, as the case may be. Each such written notice
shall be given by first class mail, postage prepaid, address to the
Registered Holders of the Series A Stock.
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8.07 CERTAIN EVENTS. If any event occurs as to which, in the opinion of
the Board of Directors of the Company, the provisions of this Part 8
are not strictly applicable or if strictly applicable would not fairly
protect the rights of the holders of the Series A Stock in accordance
with the essential intent and principles of such provisions, then the
Board of Directors shall make an adjustment in the application of such
provision, in accordance with such essential intent and principles, so
as to protect such rights as aforesaid, but in no event shall any
adjustment have the effect of increasing the Conversion Price as
otherwise determined pursuant to any of the provisions of this Part 8
except in the case of a combination of shares of a type contemplated in
Section 8.03.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
October, 1999, and we hereby affirm that the foregoing Certificate is
my act and deed and the act and deed of the Corporation and that the
facts stated therein are true.
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Stuart J. Chasanoff,
Vice President and Secretary
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