EXHIBIT 3.9
DESIGNATIONS OF PREFERENCES,
LIMITATIONS, AND RELATIVE RIGHTS OF SERIES A
CONVERTIBLE PREFERRED STOCK OF
OASIS GROUP, INC.
Pursuant to authority granted in the charter, as amended (the
"Articles of Incorporation"), of Oasis Group, Inc. (the "Corporation") and
Section 14-2-602 of the Georgia Business Corporation Code ("GBCC"), the
Corporation has been authorized to issue in series Twenty-Five Million
(25,000,000) shares of Preferred Stock and to designate the terms, preferences,
limitations and relative rights of each series established. By resolution of
the required vote of the Board of Directors of the Corporation, the Corporation
has established and fixed the relative preferences, powers, limitations and
relative rights of Ten Million (10,000,000) shares of Preferred Stock
designated the "Series A Convertible Preferred Stock," $.001 par value (the
"Series A Preferred Stock").
For the purposes of these designations, the following terms shall have
the meanings specified:
"Board of Directors" shall mean the board of directors of the
Corporation.
"Common Stock" shall mean the common stock, no par value per share, of
the Corporation.
"Conversion Price" shall have the meaning provided in SubSection
(d)(1) hereof.
"Conversion Rate" shall have the meaning provided in SubSection (d)(1)
hereof.
"Corporation" shall mean Oasis Group, Inc., a Georgia corporation.
"Designations" shall mean the terms, preferences, limitations and
relative rights of the Series A Preferred Stock established hereby and set
forth hereinafter.
"Invested Amount" per share of Series A Preferred Stock shall mean
$3.00 (as adjusted for changes in the Series A Preferred Stock by stock split,
stock dividend, or the like occurring after the Original Issue Date).
"Liquidation" shall have the meaning specified in Section (b).
"Original Issue Date" shall mean the date on which shares of Series A
Preferred Stock are first actually issued by the Corporation.
"Person" means any individual, firm, corporation, partnership, trust,
limited liability company, incorporated or unincorporated association, joint
venture, joint stock company, or other entity of any kind, and shall include
any successor (by merger or otherwise) of any such entity.
"Qualified Public Offering" shall mean a firm commitment underwritten
offer and sale of Common Stock to the public having aggregate net proceeds to
the Corporation of not less than $50,000,000, at a per share offering price
(prior to underwriters' commissions and expenses) of not less than $3.00 per
share of Common Stock (as adjusted for any stock dividends, combinations or
splits with respect to such shares following the Original Issue Date).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sale or Merger" shall have the meaning specified in Section (b).
The Designations granted to and imposed upon the Series A Preferred
Stock are as follows:
(a) Dividend Rights. The holders of shares of Series A Preferred Stock
shall be entitled to receive dividends, out of any funds legally available
thereto, at the rate of five percent (5%) per annum payable quarterly for each
share of Series A Preferred Stock held by them (as adjusted for any stock
dividends, combinations or splits with respect to such shares). Such dividends
will commence as of the Original Issue Date and will accumulate, without
compounding, until paid and will be cumulative, to the extent unpaid, whether
or not they have been declared and whether or not there are any funds legally
available thereto for the payment of dividends.
(b) Liquidation Rights.
(1) In the event of:
(A) the liquidation, dissolution or winding up of
the Corporation, or such of the Corporation's subsidiaries
the assets of which constitute all or substantially all the
assets of the business of the Corporation and its
subsidiaries taken as a whole (a "Liquidation"), or
(B) a Sale or Merger (defined below), unless, in the
case of a Sale or Merger, the holders of the Series A
Preferred Stock have elected by a vote of at least two-thirds
(66(2)?c%) of the total number of shares of such series
outstanding, voting separately as a class, to exclude such
Sale or Merger from the application of this Section (b) (in
which case SubSection (d)(7) shall apply to such
transaction),
each holder of Series A Preferred Stock then outstanding shall be
entitled to receive, out of the assets of the Corporation available
for distribution to its stockholders, before any payment shall be made
in respect of all other classes of capital stock of the Corporation,
an amount per share of Series A Preferred Stock equal to the Invested
Amount, plus any and all accrued or declared but unpaid dividends on
such share computed to the date of payment thereof (the "Series A
Preferential Amount"). After payment of the Series A Preferential
Amount, any remaining assets and property of the Corporation available
for distribution to stockholders shall be distributed pro rata among
the holders of the Corporation's Common Stock and Series A Preferred
Stock, treating for purposes of such distribution each share of Series
A Preferred Stock as such number of shares of Common
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Stock as such share of Series A Preferred Stock would be convertible
under the circumstances described in Section (d) hereof on the record
date for any such distribution.
(2) To the extent necessary, the Corporation shall cause such
actions to be taken by any of its subsidiaries so as to enable the
proceeds of a Liquidation or a Sale or Merger to be distributed to the
holders of shares of Series A Preferred Stock in accordance with this
Section (b). All the preferential amounts to be paid to the holders of
the Series A Preferred Stock under this Section (b) shall be paid or
set apart for payment before the payment or setting apart for payment
of any amount for, or the distribution of any assets of the
Corporation to, the holders of all other classes of capital stock of
the Corporation in connection with a Liquidation or a Sale or Merger
as to which this Section (b) applies. If the assets or surplus funds
to be distributed to the holders of the Series A Preferred Stock are
insufficient to permit the payment to such holders of the full amounts
payable to such holders, the assets and surplus funds legally
available for distribution shall be distributed ratably among the
holders of the Series A Preferred Stock in proportion to the full
amount each such holder is otherwise entitled to receive.
(3) For purposes of these Designations, a "Sale or Merger"
shall mean any of the following:
(A) the merger, share exchange, reorganization or
consolidation of the Corporation or such subsidiary or
subsidiaries of the Corporation the assets of which
constitute all or substantially all the assets of the
business of the Corporation and its subsidiaries taken as a
whole into or with another corporation in which the
Corporation's stockholders holding the right to vote with
respect to matters generally (the "Corporation's Voting
Power") immediately preceding such merger, share exchange,
reorganization or consolidation (solely by virtue of their
shares or other securities of the Corporation or such
subsidiaries) shall own less than fifty percent (50%) of the
voting securities of the surviving corporation;
(B) the sale, transfer or lease (but not including a
transfer or lease by pledge or mortgage to a bona fide
lender), of all or substantially all the assets of the
Corporation, whether pursuant to a single transaction or a
series of related transactions or plan (which assets shall
include for these purposes the assets of the Corporation's
subsidiaries);
(C) the sale or transfer, whether in a single
transaction or pursuant to a series of related transactions,
of securities of the Corporation such that the Corporation's
stockholders holding the Corporation's Voting Power
immediately prior to such sale or transfer or series of
transfers cease to hold a majority of the Corporation's
Voting Power after such sale or transfer or series of
transfers; or
(D) any consolidation or merger of the Corporation
into or with any other entity or entities which results in
the exchange of fifty percent (50%) or more of the
outstanding capital stock of the Corporation for securities
or other consideration issued or paid or caused to be issued
or paid by any such entity or
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affiliate thereof (other than a merger to reincorporate the
Corporation in a different jurisdiction).
(4) The Corporation shall give each holder of record of
Series A Preferred Stock written notice of any impending Sale or
Merger not later than twenty (20) days prior to the stockholders'
meeting called to approve such transaction, or twenty (20) days prior
to the closing of such transaction, whichever is earlier, and shall
also notify such holder in writing of the final approval of such
transaction. The first of such notices shall describe the material
terms and conditions of the impending Sale or Merger and the
provisions of this Section (b), and the Corporation shall thereafter
give such holders prompt notice of any material changes. The
transaction shall in no event take place sooner than twenty (20) days
after the Corporation has given the first notice provided for herein
or sooner than ten (10) days after the Corporation has given notice of
any material changes provided for herein; provided, however, that such
periods may be shortened upon the written consent of the holders of a
majority of the then outstanding shares of Series A Preferred Stock.
(5) The provisions of this Section (b) are in addition to and
not in limitation of the protective provision of Section (f).
(c) Voting Rights.
(1) Generally. Except as set forth specifically below, on all
matters on which the holders of Common Stock are entitled to vote,
each holder of a share of the Series A Preferred Stock shall be
entitled to ten (10) votes for each share of Series A Preferred Stock
standing in his or her name on the books at the Corporation. Each
holder of a share of the Series A Preferred Stock shall be entitled to
receive the same prior notice of any stockholders' meeting as provided
to the holders of Common Stock in accordance with the bylaws of the
Corporation, as well as prior notice of all stockholder actions to be
taken by legally available means in lieu of meeting, and shall vote
with holders of the Common Stock upon any matter submitted to a vote
of stockholders, except those matters required by law, or by the terms
hereof, to be submitted to a class vote of the holders of Series A
Preferred Stock. Fractional votes shall be permitted, and any
fractions shall be taken into account in computing voting rights.
(2) Board Size; Election of Directors. So long as there has
not been a Qualified Public Offering, the holders of the Series A
Preferred Stock shall be entitled, voting as a separate class, to
elect a majority of the directors of the Corporation.
(3) Restriction. Except for the voting rights granted in
Section (c)(2) above, the holders of Series A Preferred Stock Shall
have no right to vote on any matters on which the holders of Common
Stock are entitled to vote for until such time as that certain share
exchange agreement by and between the Company and Rainwire Inc., a
Delaware Corporation, dated December 19, 2001 is either consummated or
terminated.
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(d) Conversion. The holders of the Series A Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(1) Conversion Rate. For purposes of this Section (d), the
shares of Series A Preferred Stock shall be convertible, at the times
and under the conditions described in this Section (d) hereafter, at
the rate (the "Conversion Rate") of one share of Series A Preferred
Stock to the number of shares of Common Stock that equals the quotient
obtained by dividing the Invested Amount by the Conversion Price
(defined hereinafter). Thus, the number of shares of Common Stock to
which a holder of Series A Preferred Stock shall be entitled upon any
conversion provided for in this Section (d) shall be the product
obtained by multiplying the Conversion Rate by the number of shares of
Series A Preferred Stock being converted. Such conversion shall be
deemed to have been made immediately prior to the close of business on
the date of the surrender of the shares of Series A Preferred Stock to
be converted in accordance with the procedures described in SubSection
(d)(4) below. The "Conversion Price" shall initially be equal to the
Invested Amount, and shall be subject to adjustment as provided
hereafter in this Section (d). The initial Conversion Rate shall be
one share of Common Stock for one share of Series A Preferred Stock.
(2) Optional. Each share of Series A Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after
the later of (i) the first year anniversary of the effective date of
the registration statement on Form S-4 contemplated in connection with
the Amended and Restated Share Exchange Agreement, dated December 19,
2001 between the Corporation and Rainwire, Inc., a Delaware
Corporation, (ii) the withdrawal of such registration statement or
(iii) the date of issuance of such share, at the office of the
Corporation or any transfer agent for the Series A Preferred Stock,
into Common Stock at the then effective Conversion Rate. Such
conversion shall be deemed to have been made immediately prior to the
close of business on the date of the surrender of the shares of Series
A Preferred Stock to be converted in accordance with the procedures
described in Subsection (d)(4) below.
(3) Automatic. Upon the closing of, but effective immediately
prior to, the first sale in a Qualified Public Offering, each and
every share of outstanding Series A Preferred Stock held by all
holders of Series A Preferred Stock shall automatically be converted
into Common Stock at the then effective Conversion Rate. The
Corporation shall notify each holder of Series A Preferred Stock at
least ninety (90) days prior to the anticipated effective date of a
registration statement filed by the Corporation under the Securities
Act covering a Qualified Public Offering. In any conversion pursuant
to this Subsection (d)(3), such conversion shall be automatic, without
need for any further action by the holders of shares of Series A
Preferred Stock and regardless of whether the certificates
representing such shares are surrendered to the Corporation or its
transfer agent; provided, however, that the Corporation shall not be
obligated to issue certificates evidencing the shares of Common Stock
issuable upon such conversion unless certificates evidencing such
shares of Series A Preferred Stock so converted are surrendered to the
Corporation in accordance with the procedures described in SubSection
(d)(4) below. Upon the conversion of the Series A Preferred Stock
pursuant to this SubSection (d)(3), the Corporation shall promptly
send written notice thereof, by
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registered or certified mail, return receipt requested and postage
prepaid, by hand delivery or by overnight delivery, to each holder of
record of Series A Preferred Stock at his or its address then shown on
the records of the Corporation, which notice shall state that
certificates evidencing shares of Series A Preferred Stock must be
surrendered at the office of the Corporation (or of its transfer agent
for the Common Stock, if applicable) in the manner described in
SubSection (d)(4) below.
No fractional shares of Common Stock shall be issued upon conversion
of Series A Preferred Stock. In lieu of fractional shares, the Corporation
shall pay therefor, at the time of any conversion of Series A Preferred Stock
as herein provided, an amount in cash equal to such fraction multiplied by the
then effective Conversion Price, payable as promptly as possible when funds are
legally available therefore.
(4) Mechanics of Conversion; Payment of Dividends. Before any
holder of Series A Preferred Stock shall be entitled to receive
certificates representing the shares of Common Stock into which shares
of Series A Preferred Stock are converted in accordance with
Subsections (d)(2) or (d)(3) above, such holder shall surrender the
certificate or certificates for such shares of Series A Preferred
Stock, duly endorsed, at the office of the Corporation or of any
transfer agent for the Series A Preferred Stock, and shall give
written notice to the Corporation at such office of the name or names
in which such holder wishes the certificate or certificates for shares
of Common Stock to be issued, if different from the name shown on the
books and records of the Corporation. Said conversion notice shall
also contain such representations as may reasonably be required by the
Corporation to the effect that the shares to be received upon
conversion are not being acquired and will not be transferred in any
way that might violate the then applicable securities laws. The
Corporation shall, as soon as practicable thereafter and in no event
later than thirty (30) days after the delivery of said certificates,
issue and deliver at such office to such holder of Series A Preferred
Stock, or to the nominee or nominees of such holder as provided in
such notice, a certificate or certificates for the number of shares of
Common Stock to which such holder shall be entitled as aforesaid. The
person or persons entitled to receive the shares of Common Stock
issuable upon a conversion pursuant to Subsections (d)(2) or (d)(3)
shall be treated for all purposes as the record holder or holders of
such shares of Common Stock as of the effective date of conversion
specified in such section. All certificates issued upon the exercise
or occurrence of the conversion shall contain a legend governing
restrictions upon such shares imposed by law or agreement of the
holder or his or its predecessors. In addition, simultaneously with
any conversion, any accrued or declared and unpaid dividends payable
on such Series A Preferred Stock shall be paid by the Corporation to
the holder of such Series A Preferred Stock.
(5) Adjustment for Subdivisions or Combinations of Common
Stock; Stock Dividends. In the event the Corporation at any time or
from time to time after the Original Issue Date effects a subdivision
or split of its Common Stock into a greater number of Common Stock or
shall issue a stock dividend on the outstanding Common Stock without
an equivalent subdivision or split of, or dividend on, the Series A
Preferred Stock, then in such event the Conversion Price in effect
immediately prior to such subdivision or split or the issuance of such
dividend shall be proportionately decreased
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(and the Conversion Rate thus proportionately increased), effective at
the close of business on the date of such subdivision, split or
dividend. In the event the Corporation at any time or from time to
time after the Original Issue Date effects a combination of the
outstanding Common Stock into a lesser number of shares without an
equivalent combination of the outstanding Series A Preferred Stock,
then in such event the Conversion Price in effect immediately prior to
such combination, shall be proportionately increased (and the
Conversion Rate thus proportionately decreased), effective at the
close of business on the date of such combination.
(e) Notices. Any notice required by the provisions hereof to be given
to the holders of shares of Series A Preferred Stock shall be deemed given on
the third business day following (and not including) the date on which such
notice is deposited in the United States mail, first-class, postage prepaid,
and addressed to each holder of record at his address appearing on the books of
the Corporation. Notice by any other means shall not be deemed effective until
actually received.
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IN WITNESS WHEREOF, this Certificate has been duly executed by the
President of the Corporation and attested to by its Secretary as of
June 26, 2002.
OASIS GROUP, INC.
By: /s/ Ronald A. Potts
-----------------------------------
Ronald A. Potts, President
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