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EXHIBIT 3.0
CERTIFICATE OF DESIGNATION
OF
SERIES A SENIOR CUMULATIVE
PARTICIPATING CONVERTIBLE PREFERRED STOCK,
SERIES B SENIOR CUMULATIVE
PARTICIPATING CONVERTIBLE PREFERRED STOCK
AND
SERIES C SENIOR CUMULATIVE
PARTICIPATING CONVERTIBLE PREFERRED STOCK
OF
EQUITY MARKETING, INC.
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Pursuant To Section 151 Of The
General Corporation Law Of The State Of Delaware
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Equity Marketing, Inc., a Delaware corporation (the "Corporation"),
certifies that pursuant to the authority contained in Article Fourth of its
Certificate of Incorporation (the "Certificate of Incorporation"), and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors of the Corporation at a meeting
duly called and held on March 23, 2000 duly approved and adopted the following
resolution which resolution remains in full force and effect on the date hereof:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by the Certificate of Incorporation, the Board of Directors does
hereby designate, create, authorize and provide for the issue of three series of
preferred stock having a par value of $.001 per share, each with a liquidation
preference of $1,000 per share (the "Liquidation Preference"), which shall be
separately designated as the "Series A Senior Cumulative Participating
Convertible Preferred Stock (the "Series A Preferred Stock"), the Series B
Senior Cumulative Participating Convertible Preferred Stock (the "Series B
Preferred Stock") and the Series C Senior Cumulative Participating Convertible
Preferred Stock (the "Series C Preferred Stock"), respectively (the Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock are
collectively referred to as the "Preferred Stock") and which shall consist of
25,000 shares of Series A
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Preferred Stock, 12,000 shares of Series B Preferred Stock and 3,000 shares of
Series C Preferred Stock, respectively, and which shall have the following
voting powers, preferences and relative, participating, optional and other
special rights, and qualifications, limitations and restrictions thereof as
follows:
1. Ranking.
The Preferred Stock shall, with respect to dividend distributions and
distributions upon the liquidation, winding-up and dissolution of the
Corporation, rank (i) senior to all classes of Common Stock of the Corporation
and to each other class of capital stock or series of preferred stock
established after the Preferred Stock Issue Date by the Board of Directors the
terms of which do not expressly provide that it ranks senior to or on a parity
with the Preferred Stock as to dividend distributions and distributions upon the
liquidation, winding-up and dissolution of the Corporation (collectively
referred to with the Common Stock of the Corporation as "Junior Securities");
(ii) on a parity with any additional shares of Preferred Stock issued by the
Corporation in the future and any other class of capital stock or series of
preferred stock issued by the Corporation established after the Preferred Stock
Issue Date by the Board of Directors, the terms of which expressly provide that
such class or series will rank on a parity with the Preferred Stock as to
dividend distributions and distributions upon the liquidation, winding-up and
dissolution of the Corporation (collectively referred to as "Parity
Securities"); and (iii) junior to each class of capital stock or series of
preferred stock issued by the Corporation established after the Preferred Stock
Issue Date by the Board of Directors, the terms of which expressly provide that
such class or series will rank senior to the Preferred Stock as to dividend
distributions and distributions upon liquidation, winding-up and dissolution of
the Corporation (collectively referred to as "Senior Securities"). The issuance
of any Junior Securities, Parity Securities or Senior Securities shall be
subject to paragraph 6 and the other provisions of this Certificate of
Designation.
2. Dividends.
(i) The holders of shares of the Preferred Stock shall be entitled to
receive, when, as and if dividends are declared by the Board of Directors out of
funds of the Corporation legally available therefor, cumulative dividends from
the date of issuance of the Preferred Stock accruing at the rate per annum of 6%
of the Liquidation Preference per share, payable quarterly in arrears on each
March 31, June 30, September 30 and December 31, commencing on June 30, 2000
(each a "Dividend Payment Date"), to the holders of record as of the preceding
March 15, June 15, September 15 and December 15 (each, a "Record Date") whether
or not such Record Date is a Business Day. If any Dividend Payment Date is not a
Business Day, such payment shall be made on the next succeeding Business Day.
Dividends on the Preferred Stock when and if paid, shall be paid in cash.
Notwithstanding the foregoing, neither the Corporation nor the Board of
Directors shall at any time be obligated to declare and pay any such dividend.
Unpaid dividends (whether or not declared) shall accrue and cumulate as provided
herein.
(ii) Dividends on the Preferred Stock shall be cumulative and shall
accrue whether or not the Corporation has earnings or profits, whether or not
there are funds legally available for the payment of such dividends and whether
or not dividends are declared. Dividends will accumulate to the extent they are
not paid on the Dividend Payment Date for the period to which
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they relate, compounded quarterly so that such accrued and unpaid dividends
shall be added (solely for the purpose of calculating dividends payable on the
Preferred Stock) to the Liquidation Preference of the Preferred Stock effective
on the Dividend Payment Date on which such dividends were not paid and shall
thereafter accrue additional dividends in respect thereof at the rate set forth
in subparagraph 2(i) above until such accrued and unpaid dividends have been
paid in full.
(iii) If the Corporation declares or pays any cash dividends on the
Common Stock, the Corporation shall also declare and pay to the holders of the
Preferred Stock at the same time that it declares and pays such dividends, the
dividends which would have been declared and paid with respect to the Common
Stock issuable upon conversion of the Preferred Stock had all of the outstanding
Preferred Stock been converted immediately prior to the record date for such
dividend.
(iv) No dividend whatsoever shall be declared or paid upon, or any sum
set apart for the payment of dividends upon, any outstanding share of the
Preferred Stock with respect to any dividend period unless all dividends for all
preceding dividend periods have been declared and paid, or declared and a
sufficient sum set apart for the payment of such dividend, upon all outstanding
shares of Preferred Stock. Unless full cumulative dividends on all outstanding
shares of Preferred Stock for all past dividend periods shall have been declared
and paid, or declared and a sufficient sum for the payment thereof set apart,
then: (a) no dividend (other than a dividend payable solely in shares of any
Junior Securities or securities to purchase Junior Securities) shall be declared
or paid upon, or any sum set apart for the payment of dividends upon, any shares
of Junior Securities or Parity Securities; (b) no other distribution shall be
declared or made upon, or any sum set apart for the payment of any distribution
upon, any shares of Junior Securities or Parity Securities, other than a
distribution consisting solely of Junior Securities or securities to purchase
Junior Securities; (c) no shares of Junior Securities or Parity Securities shall
be purchased, redeemed or otherwise acquired or retired for value (excluding an
exchange for shares of other Junior Securities or Parity Securities) by the
Corporation or any of its subsidiaries; and (d) no monies shall be paid into or
set apart or made available for a sinking or other like fund for the purchase,
redemption or other acquisition or retirement for value of any shares of Junior
Securities or Parity Securities by the Corporation or any of its subsidiaries.
Holders of the Preferred Stock will not be entitled to any dividends, whether
payable in cash, property or stock, in excess of the full cumulative dividends
and the dividends provided for in paragraph 2(iii) above as herein described.
3. Conversion Rights.
(i) A holder of shares of Preferred Stock may convert all or any portion
of such shares at any time, unless previously redeemed, at the option of the
holder thereof into shares of Common Stock of the Corporation. For the purposes
of conversion, each share of Preferred Stock shall be valued at the Liquidation
Preference plus an amount equal to all accrued and unpaid dividends, which shall
be divided by the Conversion Price in effect on the Conversion Date (defined
below) to determine the number of shares of Common Stock issuable upon
conversion, except that the right to convert shares of Preferred Stock tendered
for redemption shall terminate at the close of business on the Business Day
preceding the Redemption Date and shall be lost if not exercised prior to that
time, unless the Corporation shall default in payment of
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the redemption price contemplated by Section 5. Immediately following such
conversion, the rights of the holders of the shares of converted Preferred Stock
shall cease (other than the right to receive the shares of Common Stock issued
as a result of the conversion) and the persons entitled to receive the Common
Stock upon the conversion of Preferred Stock shall be treated for all purposes
as having become the owners of such Common Stock. In addition, for purposes of
determining whether any adjustments should be made to the Conversion Price
pursuant to this paragraph 3, all shares of Preferred Stock shall be deemed to
have been issued on the Preferred Stock Issue Date (whether or not issued on or
after such date and whether or not issued after the date of any event giving
rise to any such adjustment under this paragraph 3).
(ii) To convert shares of Preferred Stock, a holder must (A) surrender
the certificate or certificates evidencing the shares of Preferred Stock to be
converted, duly endorsed in a form reasonably satisfactory to the Corporation,
at the office of the Corporation or transfer agent for the Preferred Stock, (B)
notify the Corporation at such office that such holder elects to convert
Preferred Stock and the number of shares such holder wishes to convert, (C)
state in writing the name or names in which such holder wishes the certificate
or certificates for shares of Common Stock to be issued, and (D) pay any
transfer or similar tax to the extent required under paragraph 3(iv). In the
event that a holder fails to notify the Corporation of the number of shares of
Preferred Stock which such holder wishes to convert, such holder shall be deemed
to have elected to convert all shares represented by the certificate or
certificates surrendered for conversion. The date on which the holder satisfies
all those requirements is the "Conversion Date." As soon as practical following
the Conversion Date, the Corporation shall deliver to the holder a certificate
for the number of full shares of Common Stock issuable upon the conversion, and
a new certificate representing the unconverted portion, if any, of the shares of
Preferred Stock represented by the certificate or certificates surrendered for
conversion. The person in whose name the Common Stock certificate is registered
shall be treated as the stockholder of record on and after the Conversion Date.
The holder of record of a share of Preferred Stock at the close of business on a
Record Date with respect to the payment of dividends on the Preferred Stock will
be entitled to receive such dividends with respect to such share of Preferred
Stock on the corresponding Dividend Payment Date, notwithstanding the conversion
of such share after such Record Date and prior to such Dividend Payment Date.
The dividend payment with respect to a share of Preferred Stock tendered for
redemption on a date during the period from the close of business on any Record
Date for the payment of dividends to the close of business on the Business Day
immediately following the corresponding Dividend Payment Date will be payable on
such Dividend Payment Date to the record holder of such share on such Record
Date, notwithstanding the conversion of such share after such Record Date and
prior to such Dividend Payment Date, and the holder converting such share of
Preferred Stock need not include a payment of such dividend amount upon
surrender of such share of Preferred Stock for conversion. If a holder of
Preferred Stock converts more than one share at a time, the number of full
shares of Common Stock issuable upon conversion shall be based on the total
Liquidation Preferences plus accrued and unpaid dividends thereon of all shares
of Preferred Stock converted.
(iii) The Corporation shall not issue any fractional shares of Common
Stock upon conversion of Preferred Stock. Instead the Corporation shall pay an
amount of cash equal to the product of (A) the fraction of a share otherwise
issuable and (B) the Closing Price of the Common Stock on the Business Day prior
to the Conversion Date.
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(iv) If a holder converts shares of Preferred Stock, the Corporation
shall pay any documentary, stamp or similar issue or transfer tax due on the
issue of shares of Common Stock upon the conversion. However, the holder shall
pay any such tax that is due because the shares are issued in a name other than
the holder's name.
(v) The Corporation has reserved and shall continue to reserve out of
its authorized but unissued Common Stock or its Common Stock held in treasury
enough shares of Common Stock to permit the conversion of the Preferred Stock in
full. All shares of Common Stock that may be issued upon conversion of Preferred
Stock shall be fully paid and nonassessable.
(vi) In case the Corporation shall pay or make a dividend or other
distribution on any class of capital stock of the Corporation (other than the
Preferred Stock) payable in shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price by a fraction
the numerator of which shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator of which shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination of the holders entitled to
such dividends and distributions. For the purposes of this paragraph 3(vi), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Corporation. The Corporation will not pay any
dividend or make any distribution on shares of Common Stock held in the treasury
of the Corporation.
(vii) In case the Corporation shall issue or sell (a) Common Stock, (b)
rights, warrants or options entitling the holders thereof to subscribe for or
purchase shares of Common Stock or (c) any security convertible into Common
Stock, in each case at a price, or having an exercise or conversion price, per
share less than the then-current market price per share of Common Stock
(determined as provided in paragraph 3(xii) below) on (x) the date of such
issuance or sale or (y) in the case of a dividend or distribution of such
rights, warrants, options or convertible securities to the holders of Common
Stock, the date fixed for determination of the holders of such Common Stock
entitled to such dividend or distribution (the date specified in clause (x) or
(y) being the "Relevant Date") (excluding any issuance for which an appropriate
and full adjustment has been made pursuant to the preceding subparagraph (vi)),
the Conversion Price shall be reduced by multiplying the then-current Conversion
Price by a fraction of which (A) the numerator shall be the number of shares of
Common Stock outstanding at the open of business on the Relevant Date (including
such shares of Common Stock, rights, warrants or options or convertible
securities (described in clauses (a), (b) and (c) above) as are issued or sold
on the Relevant Date) plus the number of shares of Common Stock which the
aggregate consideration received or receivable (I) for the total number of
shares of Common Stock, rights, warrants or options or convertible securities so
issued or sold, and (II) upon the exercise or conversion of all such rights,
warrants, options or securities, would purchase at the then-current market price
per share of Common Stock (determined as provided in paragraph 3(xii) and (B)
the denominator shall be the number of shares of Common Stock outstanding at the
close of business on the Relevant Date plus (without duplication) the number of
shares of Common Stock subject to all such rights, warrants, options and
convertible securities, such reduction of the Conversion Price
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to be effective at the opening of business on the day following the Relevant
Date; provided, that if any such dividend or distribution is rescinded and not
paid, then the Conversion Price shall, as of the date when it is determined that
such dividend or distribution will be rescinded, revert back to the Conversion
Price in effect prior to the adjustment made pursuant to this paragraph. The
grant and/or issuance of any shares of Common Stock or other rights, warrants,
options or convertible securities pursuant to (a) any restricted stock or stock
option plan or program of the Corporation involving the grant or issuance of
stock or options or rights solely to officers, directors, employees and/or
consultants of the Corporation or its subsidiaries at the then-current market
price per share of Common Stock on the date of grant or issuance (without regard
to the computation set forth in clause (xii) below), (b) any option, warrant,
right, or convertible security outstanding as of the date hereof, (c) the terms
of a firmly committed bona fide underwritten public offering, or (d) any merger,
acquisition, consolidation, or similar transaction, shall not be deemed to
constitute an issuance or sale to which this clause (vii) applies. Upon the
expiration of any right, option or warrant to purchase Common Stock, the
issuance of which resulted in an adjustment in the Conversion Price pursuant to
this paragraph 3(vii), if any such right, option or warrant shall expire and
shall not have been exercised, the Conversion Price shall be recomputed
immediately upon such expiration and effective immediately upon such expiration
shall be increased to the price it would have been (but reflecting any other
adjustments to the Conversion Price made pursuant to the provisions of this
paragraph 3 after the issuance of such rights, options or warrants) had the
adjustment of the Conversion Price made upon the issuance of such rights,
options or warrants been made on the basis of offering for subscription or
purchase only that number of shares of Common Stock actually purchased upon the
exercise of such rights, options or warrants. No further adjustment shall be
made upon exercise of any right, option or warrant if any adjustment shall be
made upon the issuance of such security. For the purposes of this paragraph
3(vii), the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Corporation.
(viii) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be reduced, and, conversely, in case
the outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be increased, in each case to equal the product of the
Conversion Price in effect on such date and a fraction the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior to
such subdivision or combination, as the case may be, and the denominator of
which shall be the number of shares of Common Stock outstanding immediately
after such subdivision or combination, as the case may be. Such reduction or
increase, as the case may be, shall become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective.
(ix) In case the Corporation shall, by dividend or otherwise, distribute
to all holders of its Common Stock (A) evidences of its indebtedness or (B)
shares of any class of capital stock, cash or other assets (including
securities, but excluding (x) any Common Stock, rights, options or warrants
referred to in paragraph 3(vii) above, (y) any dividends or distributions
referred to in paragraph 3(vi) or 3(viii) above, and (z) cash dividends), then
in each case, the Conversion Price in effect at the opening of business on the
day following the date fixed for the determination of
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holders of Common Stock entitled to receive such distribution shall be adjusted
by multiplying such Conversion Price by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph
3(xii) below) of the Common Stock on such date of determination (or, if earlier,
on the date on which the Common Stock goes "ex-dividend" in respect of such
distribution) less the then fair market value as determined by the Board of
Directors (whose determination shall be conclusive and shall be described in a
statement filed with the Transfer Agent) of the portion of the capital stock,
cash or other assets or evidences of indebtedness so distributed (and for which
an adjustment to the Conversion Price has not previously been made pursuant to
the terms of this paragraph 3) applicable to one share of Common Stock, and the
denominator shall be such current market price per share of the Common Stock,
such adjustment to become effective immediately after the opening of business on
the day following such date of determination of the holders entitled to such
distribution.
(x) In case a tender or exchange offer made by the Corporation or any
subsidiary of the Corporation for all or any portion of the Common Stock shall
expire and such tender or exchange offer shall involve the payment by the
Corporation or such subsidiary of consideration per share of Common Stock having
a fair market value (as determined by the Board of Directors or, to the extent
permitted by applicable law, a duly authorized committee thereof, whose
determination shall be conclusive and described in a resolution of the Board of
Directors or such duly authorized committee thereof, as the case may be) at the
last time (the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer (as it shall have been amended) that exceeds the
current market price per share (determined as provided in paragraph 3(xii)
below) of the Common Stock on the Trading Day next succeeding the Expiration
Time, the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the Expiration Time by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding (including any tendered or exchanged
shares) on the Expiration Time multiplied by the current market price per share
of the Common Stock on the Trading Day next succeeding the Expiration Time and
the denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) on the Expiration
Time and the current market price per share of the Common Stock on the Trading
Day next succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the Expiration
Time. For the purposes of this paragraph 3(x), the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Corporation.
(xi) The reclassification or change of Common Stock into securities,
including securities other than Common Stock (other than any reclassification
upon a consolidation or merger to which paragraph 3(xix) below shall apply)
shall be deemed to involve (A) a distribution of such securities other than
Common Stock to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the determination of
holders of Common Stock entitled to receive such distribution" within the
meaning of paragraph 3(ix) above), and (B) a subdivision or combination, as the
case may be, of
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the number of shares of Common Stock outstanding immediately prior to such
reclassification into the number of Common Shares outstanding immediately
thereafter (and the effective date of such reclassification shall be deemed to
be "the day upon which such subdivision becomes effective" or "the day upon
which such combination becomes effective," as the case may be, and "the day upon
which such subdivision or combination becomes effective" within the meaning of
paragraph 3(viii) above).
(xii) For the purpose of any computation under paragraph 3(vii), or
3(ix) or 3(x) above, the current market price per share of Common Stock on any
day shall be deemed to be the average of the Closing Prices of the Common Stock
for the 20 consecutive Trading Days ending on the day before the day in
question; provided, that, in the case of paragraph 3(ix), if the period between
the date of the public announcement of the dividend or distribution and the date
for the determination of holders of Common Stock entitled to receive such
dividend or distribution (or, if earlier, the date on which the Common Stock
goes "ex-dividend" in respect of such dividend or distribution) shall be less
than 20 Trading Days, the period shall be such lesser number of Trading Days
but, in any event, not less than 5 Trading Days.
(xiii) No adjustment in the Conversion Price need be made until all
cumulative adjustments amount to 1% or more of the Conversion Price as last
adjusted. Any adjustments that are not made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this paragraph
3 shall be made to the nearest 1/10,000th of a cent or to the nearest 1/10,000th
of a share, as the case may be.
(xiv) For purposes of this Certificate of Designation, "Common Stock"
includes any stock of any class of the Corporation which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation and which
is not subject to redemption by the Corporation. However, subject to the
provisions of paragraph 3(xix) below, shares issuable on conversion of shares of
Preferred Stock shall include only shares of the class designated as Common
Stock of the Corporation on the Preferred Stock Issue Date or shares of any
class or classes resulting from any reclassification thereof and which have no
preferences in respect of dividends or amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation and which are not subject to redemption by the Corporation; provided
that, if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
(xv) No adjustment in the Conversion Price shall reduce the Conversion
Price below the then par value of the Common Stock. No adjustment in the
Conversion Price need be made under paragraphs 3(vi), 3(vii) and 3(ix) above if
the Corporation issues or distributes to each holder of Preferred Stock the
shares of Common Stock, evidences of indebtedness, assets, rights, options or
warrants referred to in those paragraphs which each holder would have been
entitled to receive had the Preferred Stock been converted into Common Stock
prior to the happening of such event or the record date with respect thereto.
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(xvi) Whenever the Conversion Price is adjusted or an adjustment is made
pursuant to clause (xix), the Corporation shall promptly mail to holders of
Preferred Stock, first class, postage prepaid, a notice of the adjustment. The
Corporation shall file with the transfer agent for the Preferred Stock, if any,
a certificate from the Corporation's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it.
Unless holders of a majority of the outstanding shares of Preferred Stock shall
notify (a "Dispute Notice") the Corporation, within 30 days of the date the
Corporation mails such notice of adjustment, that such holders (the "Disputing
Holders") dispute such adjustment, such adjustment shall be final and binding.
The Dispute Notice shall set forth in reasonable detail the basis for such
dispute and shall name a representative (the "Representative") for the Disputing
Holders. The Corporation and the Representative shall jointly engage an
accounting firm of national reputation which shall be instructed to resolve such
dispute as promptly as practicable. The decision of such accounting firm shall
be final and binding. The Corporation and the Representative, on behalf of the
Disputing Holders, shall each bear one-half of the fees and expenses (including
the responsibility for any indemnity or similar obligations) of such accounting
firm.
(xvii) The Corporation from time to time may reduce the Conversion Price
if it considers such reductions to be advisable in order that any event treated
for federal income tax purposes as a dividend of stock or stock rights will not
be taxable to the holders of Common Stock by any amount, but in no event may the
Conversion Price be less than the par value of a share of Common Stock. Whenever
the Conversion Price is reduced, the Corporation shall mail to holders of
Preferred Stock a notice of the reduction. The Corporation shall mail, first
class, postage prepaid, the notice at least 15 days before the date the reduced
Conversion Price takes effect. The notice shall state the reduced Conversion
Price and the period it will be in effect. A reduction of the Conversion Price
pursuant to this paragraph 3(xvii) does not change or adjust the Conversion
Price otherwise in effect for purposes of paragraphs 3(vi), 3(vii), 3(viii),
3(ix) and 3(x) above.
(xviii) If:
(a) the Corporation takes any action which would require an
adjustment in the Conversion Price pursuant to paragraph 3 (vi), 3(vii),
3(viii), 3(ix), 3(x) or 3(xi) above;
(b) the Corporation consolidates or merges with, or transfers
all or substantially all of its assets to, another entity, and stockholders of
the Corporation must approve the transaction; or
(c) there is a dissolution or liquidation of the Corporation;
the Corporation shall mail to holders of the Preferred Stock, first class,
postage prepaid, a notice stating the proposed record or effective date, as the
case may be. The Corporation shall mail the notice at least 10 days before such
date. However, failure to mail the notice or any defect in it shall not affect
the validity of any transaction referred to in clause (a), (b) or (c) of this
paragraph 3(xviii).
(xix) In the case of any consolidation of the Corporation or the merger
of the Corporation with or into any other entity or the sale or transfer of all
or substantially all the assets of the Corporation pursuant to which the
Corporation's Common Stock is converted into other securities, cash or assets,
upon consummation of such transaction, each share of Preferred
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Stock shall automatically become convertible into the kind and amount of
securities, cash or other assets receivable upon the consolidation, merger, sale
or transfer by a holder of the number of shares of Common Stock into which such
share of Preferred Stock is convertible immediately prior to such consolidation,
merger, transfer or sale (assuming such holder of Common Stock failed to
exercise any rights of election and received per share the kind and amount of
consideration receivable per share by a plurality of non-electing shares).
Appropriate adjustment (as determined by the Board of Directors of the
Corporation) shall be made in the application of the provisions herein set forth
with respect to the rights and interests thereafter of the holders of Preferred
Stock, to the end that the provisions set forth herein (including provisions
with respect to changes in and other adjustment of the Conversion Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other securities or property thereafter deliverable upon the
conversion of Preferred Stock. If this paragraph 3(xix) applies, paragraphs
3(vi), 3(viii) and 3(xi) do not apply.
(xx) In any case in which this paragraph 3 shall require that an
adjustment as a result of any event becomes effective from and after a record
date, the Corporation may elect to defer until after the occurrence of such
event the issuance to the holder of any shares of Preferred Stock converted
after such record date and before the occurrence of such event of the additional
shares of Common Stock issuable upon such conversion over and above the shares
issuable on the basis of the Conversion Price in effect immediately prior to
adjustment; provided, however, that if such event shall not have occurred and
authorization of such event shall be rescinded by the Corporation, the
Conversion Price shall be recomputed immediately upon such rescission to the
price that would have been in effect had such event not been authorized,
provided that such rescission is permitted by and effective under applicable
laws.
4. Liquidation Preference.
Upon any voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation or reduction or decrease in its capital stock resulting in a
distribution of assets to the holders of any class or series of the
Corporation's capital stock, each holder of shares of the Preferred Stock will
be entitled to payment out of the assets of the Corporation available for
distribution of an amount equal to the greater of (a) the Liquidation Preference
plus an amount equal to all accrued and unpaid dividends on the Preferred Shares
as of the date fixed for liquidation, dissolution, winding-up or reduction or
decrease in capital stock per share of Preferred Stock held by such holder times
the number of shares of Preferred Stock held by such holder or (b) the amount
that would have been paid to such holder of the Preferred Stock with respect to
Common Stock issuable upon conversion of such holder's Preferred Stock had each
share of such holder's outstanding Preferred Stock been converted to Common
Stock immediately prior to the date of the liquidation, dissolution, winding-up
or reduction or decrease in capital stock (such sum, the "Total Liquidation
Payment"), before any distribution is made on any Junior Securities, including,
without limitation, Common Stock of the Corporation. After payment in full of
the Total Liquidation Payment to which holders of Preferred Stock are entitled,
such holders will not be entitled to any further participation in any
distribution of assets of the Corporation. If, upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, the amounts payable
with respect to the Preferred Stock and all other Parity Securities are not paid
in full, the holders of the Preferred Stock and the Parity Securities will share
equally and ratably in any distribution of assets of the Corporation in
proportion to the full
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liquidation preference and accumulated and unpaid dividends, if any, to which
each is entitled. However, neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other consideration) of all
or substantially all of the property or assets of the Corporation nor the
consolidation or merger of the Corporation with or into one or more Persons will
be deemed to be a voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation or reduction or decrease in capital stock, unless
such sale, conveyance, exchange or transfer shall be in connection with a
liquidation, dissolution or winding-up of the business of the Corporation or
reduction or decrease in capital stock.
5. Redemption Upon Change of Control.
(i) Upon the occurrence of a Change of Control, each holder of shares of
Preferred Stock shall have the right to require the Corporation to repurchase
all, but not less than all, of such holder's Preferred Stock pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate Liquidation Preference thereof plus an amount
equal to all accrued and unpaid dividends thereon to the date of purchase (the
"Change of Control Payment"). For purposes of this paragraph 5(i), a holder of
shares of Preferred Stock and any of its Affiliates that may also hold shares of
Preferred Stock shall be deemed to be one holder.
(ii) The Corporation shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of the Preferred Stock as a result of a Change of Control.
(iii) At least 15 days prior to any Change of Control, the Corporation
shall send, by first-class, postage prepaid, mail, a notice to each holder of
Preferred Stock at such holder's address as it appears in the register
maintained by the Corporation or, if applicable, the Transfer Agent, which
notice shall govern the terms of the Change of Control Offer. The notices of the
Change of Control Offer shall include all instructions and materials necessary
to enable holders of Preferred Stock to tender their shares of Preferred Stock
pursuant to the Change of Control Offer. In addition to any information required
by law, such notice of the Change of Control Offer shall state:
(a) that the Change of Control Offer is being made pursuant to
this paragraph 5 and that all shares of Preferred Stock tendered will be
accepted for payment;
(b) the purchase price and the purchase date, which shall be no
earlier than 30 days nor later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date");
(c) that any share of Preferred Stock not tendered will continue
to accrue dividends;
(d) that, unless the Corporation fails to pay the Change of
Control Payment, all shares of Preferred Stock accepted for payment pursuant to
the Change of Control Offer shall cease to accrue dividends after the Change of
Control Payment Date;
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(e) that holders of Preferred Stock electing to have any shares of
Preferred Stock purchased pursuant to a Change of Control Offer will be required
to surrender the shares of Preferred Stock, with a completed copy of the form
entitled "Option of Holder to Elect Purchase" which shall be included with the
notice of the Change of Control, to the paying agent (which may be the
Corporation) at the address specified in the notice of the Change of Control
prior to the close of business on the third Business Day preceding the Change of
Control Payment Date;
(f) that holders of Preferred Stock will be entitled to withdraw
their election if the paying agent receives, not later than the close of
business on the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the holder of the Preferred Stock, the number of shares of Preferred Stock
delivered for purchase, and a statement that such holder of Preferred Stock is
withdrawing his election to have such shares purchased; and
(g) the circumstances and relevant facts regarding such Change of
Control (including, but not limited to, information with respect to pro forma
historical financial information after giving effect to such Change of Control
and information regarding the Person or Persons acquiring control).
(iv) On the Change of Control Payment Date, the Corporation shall (i)
accept for payment all shares of Preferred Stock properly tendered pursuant to
the Change of Control Offer, (ii) deposit with the paying agent an amount equal
to the Change of Control Payment in respect of all shares of Preferred Stock so
tendered and (iii) deliver or cause to be delivered to the paying agent the
shares of Preferred Stock so accepted together with an Officers' Certificate of
the Corporation stating the aggregate Liquidation Preference plus accrued and
unpaid dividends on the shares of Preferred Stock being purchased by the
Corporation. The failure of the holder to accept such offer prior to the close
of business on the third Business Day preceding the Change of Control Payment
Date in accordance with the provisions of this paragraph 5 shall be deemed a
rejection of such offer, and the provisions of this Certificate of Designation
(including paragraph 3(xix)) shall continue to apply to any shares of Preferred
Stock not tendered for redemption. The paying agent shall promptly send by
registered mail to each holder of Preferred Stock so tendered the Change of
Control Payment for such Preferred Stock, and the Transfer Agent shall promptly
authenticate and send by registered mail (or cause to be transferred by book
entry) to each holder a new certificate representing the shares of Preferred
Stock equal in Liquidation Preference amount to any unpurchased portion of the
shares of Preferred Stock surrendered, if any.
6. Voting Rights.
(i) So long as there remain outstanding at least 25% of the shares of
Preferred Stock issued on or after the Preferred Stock Issue Date pursuant to
this Certificate of Designation, the holders of the Preferred Stock shall have
the exclusive right, voting separately as a class and to the exclusion of the
holders of all other classes of capital stock of the Corporation, to elect two
directors to the Board of Directors; provided, however, if at any time the Board
of Directors is increased to include more than eight members, then, so long as
there remain outstanding at least 25% of the shares of Preferred Stock issued on
or after the Preferred Stock Issue Date pursuant
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to this Certificate of Designation, the holders of the Preferred Stock shall
have the exclusive right, voting separately as a class and to the exclusion of
the holders of all other classes of capital stock of the Corporation, to elect
one additional director to the Board of Directors. For as long the holders of
Preferred Stock voting separately as a class are entitled to elect two (or if
applicable, three) directors to the Board of Directors (the "Separate Voting
Period"), the holders of Preferred Stock shall not be entitled to vote in the
election of any other directors of the Corporation (and following the expiration
of the Separate Voting Period, the holders of Preferred Stock shall be entitled
to vote with the holders of the Common Stock for the election of directors
pursuant to paragraph 6(ii) below). Each director to be designated and elected
to the Board of Directors by the holders of the Preferred Stock shall be
designated and elected at each annual meeting of stockholders or any special
meeting called for the purpose of electing directors. Each director shall be
elected at the annual meeting of stockholders and shall serve until the earlier
of (i) the next annual meeting of stockholders to elect directors or (ii) his or
her earlier resignation or removal. Each such director may be removed during his
or her term of office by and only by the affirmative vote of the holders of a
majority of the outstanding shares of Preferred Stock, given at a special
meeting of such holders duly called for such purpose. Any vacancy existing or
created in the office of such directors may be filled at a special meeting of
the holders of the majority of the Preferred Stock entitled to elect the
director to serve in such directorship, by the holders of a majority of the
Preferred Stock at a special meeting duly called for such purpose. Any special
meetings of the holders of Preferred Stock shall be called by the Secretary of
the Corporation upon the written request of 10% or more of the number of shares
of Preferred Stock then outstanding; provided, however, that if the Secretary of
the Corporation shall fail to call any such meeting within 10 days after any
such request, such meeting may be called by any holder of Preferred Stock
designated for that purpose by the holders of record of 10% or more of the
number of shares of Preferred Stock then outstanding. Any action that could
otherwise be taken at a special meeting of the holders of Preferred Stock,
including the election of directors, may be taken by written consent of a
majority of the holders of outstanding Preferred Stock. Notwithstanding the
election of directors as provided in this paragraph 6(i), each such director
shall have equal rights and duties with all other directors of the Corporation.
(ii) The holders of Preferred Stock shall vote together with the holders
of the shares of Common Stock as a single class, except as provided in paragraph
6(i) above and 6(iii), below, with each share of Common Stock entitled to one
vote and each share of Preferred Stock entitled to one vote for each share of
Common Stock issuable upon conversion of such Preferred Stock as of the relevant
record date.
(iii) The Corporation shall not, without the affirmative vote or consent
of the holders of at least 50% of the shares of Preferred Stock then outstanding
(with shares held by the Corporation as treasury stock not being considered to
be outstanding for this purpose), voting or consenting as the case may be,
separately as one class:
(a) issue any Senior Securities or Parity Securities (other than
as contemplated by the Securities Purchase Agreement and the Warrants);
(b) amend this Certificate of Designation, the Corporation's
Certificate of Incorporation or Bylaws (whether by merger, consolidation or
otherwise) in any manner that adversely affects the rights, preferences or
powers of holders of Preferred Stock;
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(c) authorize the issuance of any additional shares of Preferred
Stock (other than as contemplated by the Securities Purchase Agreement and this
Certificate of Designation);
(d) issue any preferred stock which is not a Senior Security or
Parity Security and which has voting rights ("Other Preferred Stock") unless
such Other Preferred Stock votes on all matters as a single class with the
Common Stock and the Preferred Stock, except that holders of Other Preferred
Stock may have the right to vote separately as a single class (i) with respect
to matters required by law to be voted on by such holders voting as a separate
class, (ii) to approve the issuance of preferred stock ranking (x) senior to
such Other Preferred Stock and (y) junior to the Preferred Stock, in each case,
with respect to dividend distributions and distributions upon liquidation,
winding-up and dissolution of the Corporation and (iii) for the election of not
more than one director in the aggregate so long as either (x) holders of the
Preferred Stock have the right, voting separately as a class, to elect two
directors pursuant to this Certificate of Designation or (y) Investor or its
Affiliates has the right to nominate two directors pursuant to Section 4.4 of
the Securities Purchase Agreement; provided that holders of Other Preferred
Stock may be granted the right to vote separately as a class for the election of
not more than two directors in the aggregate during any period that either (x)
holders of the Preferred Stock have the right, voting separately as a class, to
elect three directors pursuant to this Certificate of Designation or (y)
Investor or its Affiliates has the right to nominate three directors pursuant to
Section 4.4 of the Securities Purchase Agreement.
7. Exclusion Of Other Rights.
Except as may otherwise be required by law, the shares of Preferred
Stock shall not have any voting powers, preferences and relative, participating,
optional or other special rights, other than those specifically set forth in
this resolution (as such resolution may be amended from time to time in
accordance with the Certificate of Designation) and in the Certificate of
Incorporation. The shares of Preferred Stock shall have no preemptive or
subscription rights.
8. Headings Of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
9. Severability Of Provisions.
If any voting powers, preferences and relative, participating, optional
and other special rights of the Preferred Stock and qualifications, limitations
and restrictions thereof set forth in this resolution (as such resolution may be
amended from time to time) is invalid, unlawful or incapable of being enforced
by reason of any rule of law or public policy, all other voting powers,
preferences and relative, participating, optional and other special rights of
Preferred Stock and qualifications, limitations and restrictions thereof set
forth in this resolution (as so amended) which can be given effect without the
invalid, unlawful or unenforceable voting powers, preferences and relative,
participating, optional or other special rights of Preferred Stock and
qualifications, limitations and restrictions thereof herein set forth.
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10. Re-Issuance Of Preferred Stock.
Shares of Preferred Stock that have been issued and reacquired in any
manner, including shares purchased or redeemed or exchanged or converted, shall
(upon compliance with any applicable provisions of the laws of Delaware) have
the status of authorized but unissued shares of preferred stock of the
Corporation undesignated as to series and may be designated or re-designated and
issued or reissued, as the case may be, as part of any series of preferred stock
of the Corporation, provided that any issuance of such shares as Preferred Stock
must be in compliance with the terms hereof.
11. Mutilated Or Missing Preferred Stock Certificates.
If any of the Preferred Stock certificates shall be mutilated, lost,
stolen or destroyed, the Corporation shall issue, in exchange and in
substitution for and upon cancellation of the mutilated Preferred Stock
certificate, or in lieu of and substitution for the Preferred Stock certificate
lost, stolen or destroyed, a new Preferred Stock certificate of like tenor and
representing an equivalent amount of shares of Preferred Stock, but only upon
receipt of evidence of such loss, theft or destruction of such Preferred Stock
certificate and indemnity, if requested, satisfactory to the Corporation and the
transfer agent (if other than the Corporation).
12. Certain Definitions.
As used in this Certificate of Designation, the following terms shall
have the following meanings (with terms defined in the singular having
comparable meanings when used in the plural and vice versa), unless the context
otherwise requires:
"Business Day" means any day except a Saturday, a Sunday, or any day on
which banking institutions in New York, New York are required or authorized by
law or other governmental action to be closed.
"Change of Control" shall mean (A) the acquisition by any person (other
than Investor and its Affiliates) or group (within the meaning of Section
12(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934), of beneficial
ownership, direct or indirect, of securities of the Corporation representing 50%
or more of the combined voting power of the Corporation's then outstanding
equity securities, (B) the acquisition by any person or group (other than Donald
Kurz, Stephen Robeck or the Investor or their respective Affiliates) of
beneficial ownership, direct or indirect, of securities of the Corporation
representing 20% or more of the combined voting power of the Corporation's then
outstanding equity securities, and either (x) a representative or nominee of
such person or group shall be elected or appointed to the Board of Directors of
the Corporation without the support of at least one (1) of the members of the
Board of Directors of the Corporation to be elected by the holders of the
Preferred Stock pursuant to paragraph 6 of this Certificate of Designation (the
condition contained in this subparagraph (x) will no longer be applicable once
the holders of such Preferred Stock no longer have the right to elect directors
pursuant to paragraph 6 of this Certificate of Designation) or (y) a person
designated by the Investor (as defined in the Securities Purchase Agreement)
pursuant to Section 4.4 of such Securities Purchase Agreement shall not be
elected to the Board of Directors of the Corporation as provided in such Section
or (C) the consolidation of the Corporation with, or the
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merger of the Corporation with or into, another Person or the sale, assignment
or transfer of all or substantially all of the Corporation's assets to any
Person, or the consolidation of any Person with, or the merger of any Person
with or into, the Corporation, in any such event in a transaction in which the
outstanding voting capital stock of the Corporation is converted into or
exchanged for cash, securities or other property, provided that following such
transaction the holders of voting stock of the Corporation immediately prior to
such transaction do not own more than 50% of the voting stock of the company
surviving such transaction or to which such assets are transferred.
"Closing Price" means, for each Trading Day, the last reported sale
price on the Nasdaq National Market or, if the Common Stock is not quoted on the
Nasdaq National Market, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the corporation for that purpose.
"Common Stock" means the Common Stock, par value $.001 per share, of the
Corporation.
"Conversion Price" shall initially mean $14.75 per share of Series A
Preferred Stock, $16.00 per share of Series B Preferred Stock and $18.00 per
share of Series C Preferred Stock and thereafter shall be subject to adjustment
from time to time pursuant to the terms of paragraph 3 hereof.
"Exchange Act" means the Securities Exchange Act of 1934 and the rules
and regulations promulgated thereunder.
"Person" means any individual or corporation, partnership (limited,
general or otherwise), joint venture, limited liability company, association,
joint stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
"Preferred Stock Issue Date" means March 29, 2000.
"Securities Purchase Agreement" means the Securities Purchase Agreement
dated as of March 29, 2000 between the Corporation and Crown Acquisition
Partners, LLC. A copy of the Securities Purchase Agreement is on file at the
principal executive offices of the Corporation and shall be provided to any
stockholder of the Corporation upon written request and without charge.
"Trading Day" means any day on which the Nasdaq National Market or other
applicable stock exchange or market is open for business.
"Transfer Agent" shall be the Corporation unless and until a successor
is selected by the Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by Donald A. Kurz, Chairman of the Board and
Chief Executive Officer on this 29th day of March 2000.
EQUITY MARKETING, INC.
By: /s/ DONALD A. KURZ
-------------------------------------
Name: Donald A. Kurz
Title: Chairman of the Board and Chief
Executive Officer
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