EXHIBIT 2.1
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION OF
MB SOFTWARE CORPORATION
Pursuant to the provisions of Article 110-106 of the Colorado Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation.
FIRST: The name of the corporation is MB Software Corporation (the
"Corporation").
SECOND: The following amendment was adopted by the shareholders of the
Corporation on the 12th day of November, 1998. The number of votes cast for the
amendment by each voting group entitled to vote separately on the amendment was
sufficient for approval by that voting group.
The amendment alters the Fourth Article of the Amended and Restated
Articles of Incorporation to read in its entirety as follows:
"FOURTH:
(a) The aggregate number of shares which the Corporation shall
have the authority to issue is one hundred and fifty-one million (151,000,000),
one hundred fifty million (150,000,000) of which will be shares of Common Stock
("Common Stock"), having a par value of $.001, and one million (1,000,000) of
which will be shares of Preferred Stock ("Preferred Stock"), having a par value
of $10 per share.
(b) Preferred Stock may be issued in one or more series as may
be determined from time to time by the Board of Directors. All shares of any one
series of Preferred Stock will be identical except as to the date of issue and
the dates from which dividends on shares of the series issued on different dates
will cumulate, if cumulative. Authority is hereby expressly granted to the Board
of Directors to authorize the issuance of one or more series of Preferred Stock,
and to fix by resolution or resolutions providing for the issue of each such
series the voting powers, designations, preferences, and relative participating,
optional, redemption, conversion, exchange or other special rights,
qualifications, limitations or restrictions of such series, and the number of
shares in each series to the full extent now or hereafter permitted by law.
(c) A first series of the class of Preferred Stock, par value
$10, authorized by these Articles of Incorporation is hereby created and
issuance is hereby authorized. The designation, amount thereof, voting powers,
preferences and relative rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are hereby set as follows:
1. Designation of Series. The designation of the series of Preferred
Stock shall be "Series A Senior Cumulative Convertible Participating Preferred
Stock" (the "Series A Preferred Stock").
2. Par Value. The Series A Preferred Stock shall have a par value of
$10 per share.
3. Number of Shares. The number of shares of Series A Preferred Stock
shall be three hundred forty thousand (340,000).
4. Dividends of Series A Preferred Stock. The holders of record of the
Series A Preferred Stock (each, a "Holder") shall be entitled to receive
dividends at the rate of $1 per share of Series A Preferred Stock, per annum,
out of any assets at the time legally available therefor and subject to the
further limitations set out herein. Such dividends shall begin to accrue upon
the issuance of the Series A Preferred Stock, and shall be payable in quarterly
installments in arrears as of the last day of each of March, June, September and
December of each year (each such quarter being herein referred to as a "Dividend
Period"), the first dividend being payable on or before December 31, 1998;
provided however, if such date on which a dividend is payable is a Saturday,
Sunday or legal holiday, such dividend shall be payable on the next following
business day to the Holder. Dividends on the Series A Preferred Stock shall be
paid only out of those assets of the Corporation legally available therefor. All
dividends paid pursuant to this paragraph shall be in the form of cash.
Dividends on the Series A Preferred Stock shall accrue and be cumulative,
whether or not in any Dividend Period or Periods there shall be assets of the
Corporation legally available for the payment of such dividends. Accrued but
unpaid dividends shall not be deemed to earn interest, except as contemplated in
paragraph 5. For so long as any shares of Series A Preferred Stock shall remain
outstanding, no dividend or distribution in cash or other property shall be
declared, set aside or paid on or in respect of the Common Stock of the
Corporation or on any other series of stock issued by the Corporation.
5. Redemption Rights. If the Series A Preferred Stock is not converted
into Common Stock as provided herein, it shall be redeemable, in whole or in
part, at the option of the Holder thereof any time and from time to time after
October 1, 2000, at a redemption price equal to $10 per share, plus accrued but
unpaid dividends thereon through the Holder Redemption Date (as defined below)
(the "Redemption Price"). In the event any Holder of Series A Preferred Stock
wishes to exercise the redemption option set forth above, the Holder shall give
the Corporation written notice of a redemption, which notice must be given not
less than 15 days prior to the date the shares are to be redeemed (the "Holder
Redemption Date") and shall specify: (i) the Holder Redemption Date; (ii) the
number of shares of Series A Preferred Stock held by such Holder to be redeemed
on such date; and (iii) that the certificate or certificates evidencing
ownership of Series A Preferred Stock to be redeemed will be surrendered at a
place to be designated by the Corporation. Within five days of its receipt of a
redemption notice, the Corporation shall deliver a copy thereof to every other
holder of record of Series A Preferred Stock. Each holder of Series A Preferred
Stock that gives a redemption notice to the Corporation within five days after
its receipt of such copy (a "Subsequent Notice") shall be deemed to have given
such Subsequent Notice on the same date as the original
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redemption notice. However, no Subsequent Notice shall serve as the basis for
any redemption notice given within five days after its delivery being deemed to
have been given as of any date other than the actual date on which it is given.
Upon receipt of any redemption notice, the Corporation shall be obligated to
redeem for cash the shares to be redeemed within 60 days after the Corporation's
receipt of such redemption notice; provided, however, that if the Corporation
does not have sufficient funds that are legally available for such redemption,
(i) the Corporation shall redeem so many of the shares to be redeemed as may
lawfully redeem, (ii) if the Corporation cannot redeem all of the shares to be
redeemed, the Corporation shall redeem the shares to be redeemed in the
chronological order in which the redemption notices related thereto were given
and shall redeem the shares to be redeemed subject to redemption notices given
or deemed given on the same date pro rata, (iii) the Corporation shall promptly
take such action as is lawful and possible for it to cause sufficient funds to
become legally available to redeem all shares to be redeemed, (iv) shares to be
redeemed and not redeemed shall remain outstanding shares for all purposes until
redeemed and paid for in full, and (v) a holder of shares to be redeemed may, by
written notice to the Corporation given at any time after the 60th day after
giving a redemption notice but prior to the time payment in full is made to such
holder, revoke such redemption notice with respect to any or all shares to be
redeemed that have not then been redeemed. The fact that an Event of Default
ceases to exist after a redemption notice has been given but before the
redemption of the shares to be redeemed does not negate the obligation of the
Corporation to redeem such shares. On and after the Holder Redemption Date, the
Holder of Series A Preferred Stock giving notice for redemption as aforesaid,
upon presentation and surrender at the place designated by the Corporation (such
place, as is reasonably accessible to the Holder, to be designated by the
Corporation by giving written notice of such designation to the Holder no less
than 10 days prior to the Holder Redemption Date) of the certificate or
certificates representing such shares of Series A Preferred Stock that are being
redeemed held by it, duly endorsed in blank for transfer or accompanied by a
written instrument of transfer duly executed by such Holder or its attorney duly
authorized in writing, shall be entitled to receive the Redemption Price. After
the Holder Redemption Date specified in such notice (unless default shall be
made by the Corporation in the payment of the Redemption Price), all dividends
on the Series A Preferred Stock so redeemed shall cease to accrue and all rights
of the Holders of the Series A Preferred Stock so redeemed as shareholders of
the Corporation, excepting only the right to receive the Redemption Price on and
after the Holder Redemption Date without interest thereon (except as
contemplated below), shall cease and terminate. Should the Corporation fail to
redeem any shares of Series A Preferred Stock following receipt from a Holder of
written notice of redemption, (i) the Holders of the Series A Preferred Stock
shall have the right to elect a majority of the Corporation's board of directors
as provided below, and (ii) the Corporation shall pay interest on the Redemption
Price with respect to the shares of Series A Preferred Stock that were called
for redemption but not redeemed at the Holder Redemption Date at an interest
rate equal to the lesser of the prime rate of interest stated by The Wall Street
Journal on the proposed Holder Redemption Date, plus 5%, or the highest rate
allowed by law from the proposed Holder Redemption Date through the date the
shares are actually redeemed. The Series A Preferred Stock shall not be entitled
to the benefits of any sinking or similar fund.
6. Voting Rights.
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(i) Except as provided herein or by applicable law, the
Series A Preferred Stock shall have no right to vote
with respect to matters requiring the vote of the
holders of the Corporation's capital stock.
(ii) Holders of Series A Preferred Stock shall have the
right to vote with holders of Common Stock, on an
as-converted basis, on any matter submitted to a vote
of holders of Common Stock that constitutes either a
Sale Triggering Event, a Change in Control Triggering
Event or a Dissolution Triggering Event (as such terms
are defined below), with the Conversion Percentage of
the Series A Preferred Stock being calculated based
upon the Triggering Event being voted upon.
(iii) In the event the Corporation shall, for any reason, (a)
fail to redeem shares of Series A Preferred Stock
following receipt of written notice of redemption from
the Holder as provided above, or (b) default with
respect to any of its other obligations under this
Article Fourth with respect to the Series A Preferred
Stock, which default shall remain uncured for a period
of 30 days if such default is curable, otherwise the
rights set forth below shall be activated immediately
upon default, the number of directors constituting the
whole Board of Directors of the Corporation (the
"Board") shall, without further action by the
shareholders or the Board, be increased by the number
of directors then constituting the entire Board, plus
one, and the Holders of Series A Preferred Stock shall
have the exclusive and special right, voting separately
and as a single class, to vote for and elect such
additional directors, and the remaining number of
directors of the Corporation shall be elected by the
shareholders generally entitled to vote in the election
of directors. Directors elected by Holders of Series A
Preferred Stock may only be removed by Holders of
Series A Preferred Stock and no increase or decrease in
the size of the Board shall be permitted during the
pendency of such right except as expressly contemplated
in this paragraph 6. The right of the Holders of Series
A Preferred Stock to elect additional directors shall
cease, the term of the additional directors elected by
the Holders of the Series A Preferred Stock voting as a
separate class pursuant to this paragraph shall
terminate forthwith and the number of directors of the
Corporation shall be reduced by such number whenever
the Series A Preferred Stock with respect to which the
Corporation defaulted on its obligation to redeem shall
have been redeemed, the default creating the election
right shall have been cured or all the Series A
Preferred Stock shall have been redeemed, as the case
may be.
(iv) Whenever such voting right shall have vested, such
right may be exercised initially either at a special
meeting of the Holders of the Series A Preferred Stock
having such voting right, called as hereinafter
provided, or at any
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annual meeting of shareholders held for the purpose of
electing directors, and thereafter at such annual
meetings or by the written consent of the Holders of
the Series A Preferred Stock entitled to vote thereon.
(v) At any time when such voting right shall have vested in
the Holders of the Series A Preferred Stock, and if
such right shall not already have been initially
exercised, a proper officer of the Corporation shall,
upon the written request of any Holder of Series A
Preferred Stock having such voting right then
outstanding, addressed to the Secretary of the
Corporation, call a special meeting of the Holders of
the Series A Preferred Stock having such voting right
for the purpose of electing directors. Such meeting
shall be held at the earliest practicable date upon the
notice required for special meetings of shareholders at
the place where the last annual meeting of shareholders
of the Corporation was held or the Corporation's chief
executive office. If such meeting shall not be called
by the proper officers of the Corporation within 10
days after the delivery of notice of such written
request to the Secretary of the Corporation, or within
10 days after mailing the same within the United
States, by registered mail, addressed to the Secretary
of the Corporation at its principal office (such
mailing to be evidenced by the registry receipt issued
by the postal authorities), then the Holders of 10% or
more of the shares of the Series A Preferred Stock then
outstanding which would be entitled to vote at such
meeting may designate in writing a Holder of Series A
Preferred Stock to call such meeting at the expense of
the Corporation, and such meeting may be called by such
person so designated upon the notice required for
special meetings of shareholders and shall be held at
the same place as is elsewhere provided in this
paragraph. Any Holder of the Series A Preferred Stock
which would be entitled to vote at such meeting shall
have access to the stock books of the Corporation for
the purpose of causing a meeting of shareholders to be
called pursuant to the provisions of this paragraph.
Notwithstanding the provisions of this paragraph,
however, no such special meeting shall be called during
a period within 30 days immediately preceding the date
fixed for the next annual meeting of shareholders.
(vi) At any meeting held for the purpose of electing
directors at which the holders of Series A Preferred
Stock shall have the right to elect directors as
provided herein, the presence in person or by proxy of
the holders of 33-1/3% or more of the then outstanding
shares of Series A Preferred Stock having such right
shall be required and be sufficient to constitute a
quorum of such series for the election of directors by
such series. At any such meeting or adjournment thereof
(a) the absence of a quorum of the Holders of the
Series A Preferred Stock having such right shall not
prevent the election of directors other than those to
be elected by the Holders of stock of such series and
the absence of a quorum or quorums of the holders of
capital stock entitled to elect such
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other directors shall not prevent the election of
directors to be elected by the Holders of the Series A
Preferred Stock entitled to elect such directors and
(b) in the absence of a quorum of the holders of any
class or series of stock entitled to vote for the
election of directors, a majority of the holders
present in person or by proxy of such class or series
shall have the power to adjourn the meeting for the
election of directors which the holders of such class
or series are entitled to elect, from time to time,
without notice other than announcement at the meeting,
until a quorum shall be present.
(vii) The term of office of all directors elected by the
Holders of the Series A Preferred Stock in office at
any time when the aforesaid voting rights are vested in
the Holders of the Series A Preferred Stock having such
voting rights shall terminate upon the election of
their successors at any meeting of shareholders for the
purpose of electing directors. Upon any termination of
the aforesaid voting rights as set forth above the term
of office of all directors elected by the Holders of
the Series A Preferred Stock then in office shall
thereupon terminate and upon such termination the
number of directors constituting the Board of Directors
shall, without further action, be reduced by the amount
of increase, subject always to the increase of the
number of directors in case of the future right of the
Holders of the Series A Preferred Stock to elect
directors.
(viii) So long as any shares of Series A Preferred Stock
remain outstanding, the Corporation will not, either
directly or indirectly or through merger or
consolidation with any other corporation, without the
affirmative vote at a meeting or the written consent
with or without a meeting of the Holders of at least a
majority in number of shares of the Series A Preferred
Stock, (x) create any class or series of stock ranking
equal or prior to the Series A Preferred Stock, either
as to dividends or upon liquidation or increase the
authorized number of shares of any class or series of
stock ranking equal or prior to the Series A Preferred
Stock either as to dividends or upon liquidation, (y)
amend, alter or repeal (whether by merger,
consolidation or otherwise) any of the provisions of
the Articles of Incorporation of the Corporation so as
to affect adversely the preferences, special rights or
powers of the Series A Preferred Stock or (z) authorize
any reclassification of the Series A Preferred Stock.
(ix) Holders of Series A Preferred Stock shall be sent
notice of any meeting of shareholders, regardless of
whether they are entitled to vote or consent at such
meeting, together with copies of all other
correspondence sent to shareholders by the Corporation.
The Corporation will give Holders of Series A Preferred
Stock at least twenty days' advance notice of the
fixing of any record date with respect to holders of
the Common Stock.
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7. Priority. The Series A Preferred Stock shall be senior to all other
capital stock of the Corporation as to payment of dividends, redemption and
(except with respect to Common Stock as described under the heading "Priority of
the Series A Preferred Stock in the Event of Liquidation") liquidation
preference.
8. Priority of the Series A Preferred Stock in the Event of
Liquidation. In the event of a voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the Holders of Series A Preferred Stock shall
be entitled to receive the sum of (i) $100 per share plus accrued and unpaid
dividends through the date of the liquidating distribution, plus (ii) after
$20,000,000 has been paid to holders of Common Stock in the aggregate, an amount
equal to the amount paid under subsection (i), plus (iii) that percentage of all
liquidation proceeds remaining after the foregoing payments equal to the
Conversion Percentage (as defined below) calculated for a Dissolution Triggering
Event (as defined below) pursuant to paragraph 11 below. If upon any
liquidation, dissolution or winding up of the Corporation, the amounts payable
with respect to the Series A Preferred Stock are not paid in full, the Holders
of the Series A Preferred Stock will share ratably in any such distribution of
assets in proportion to the full respective preferential amounts to which they
are entitled. The merger or consolidation of the Corporation with any other
entity shall not be deemed to be a liquidation, dissolution or winding up of the
Corporation for the purpose of this paragraph.
9. Conversion. If a Triggering Event (as defined below) occurs, the
Series A Preferred Stock will be convertible, at the option of the Holders, into
that number of shares of Common Stock representing the Conversion Percentage (as
defined below) of the Common Stock of the Corporation outstanding after such
conversion.
10. Triggering Events. A Triggering Event shall be the first to occur
of any one of: (i) the sale of all or substantially all of the assets of the
Corporation (the "Sale Triggering Event"); (ii) a Change in Control (as defined
below) of the Corporation (the "Change in Control Triggering Event"); (iii) the
voluntary or involuntary dissolution of the Corporation (the "Dissolution
Triggering Event"); or (iv) October 1, 2000 (the "Year 2000 Triggering Event").
11. Conversion Percentage. The "Conversion Percentage" will be (i) 30%
in the case of the Year 2000 Triggering Event, or (ii) 30% adjusted pursuant to
the following calculations, in the case of any other Triggering Event:
(a) Determine the Future Corporation Value (as defined
below) at the time of the Triggering Event;
(b) subtract the Redemption Price at the date of the
Triggering Event from $6 million (the result being
called the "Excess Preferred Value");
(c) if the Excess Preferred Value is zero or less, the
Conversion Percentage is 30% and no further
calculations are necessary; if the Excess Preferred
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Value is positive, divide the Excess Preferred Value
by the Future Corporation Value (the result being
called the "Conversion Adjustment");
(d) subtract the Conversion Adjustment from 30% and the
result is the Conversion Percentage.
In either instance, if a portion of the Series A Preferred Stock has
been redeemed or converted into Common Stock as provided in paragraph 5 or
paragraph 9 hereof, the Conversion Percentage shall be reduced proportionately.
12. Future Corporation Value. The "Future Corporation Value" is defined
as, with respect to (i) a Sale Triggering Event, all amounts received or to be
received by the Corporation as a result of such transaction (including the
amount of obligations of the Corporation assumed by the buyer); plus, to the
extent not transferred in such transaction, the fair value of all remaining
assets of the Corporation; plus, all amounts to be received from the buyer or
its affiliates by officers, directors and shareholders of the Corporation or
their affiliates pursuant to agreements entered into in connection with or in
anticipation of such sale, regardless of whether characterized as being for
services, non-competition covenants, or otherwise, to the extent the
consideration therefor exceeds the fair value thereof; (ii) a Change in Control
Triggering Event, the sum of (1) the product of the highest per share
consideration received by a holder of Common Stock in such transaction
multiplied by the number of shares (on a fully diluted basis, assuming that the
Series A Preferred Stock is converted into Common Stock as a Year 2000
Triggering Event) of Common Stock outstanding at the date of such Triggering
Event; plus, (2) all amounts to be received from the buyer or its affiliates by
officers, directors, and shareholders of the Corporation or their affiliates
pursuant to agreements entered into in connection with or in anticipation of
such Change in Control, regardless of whether characterized as being for
services, non-competition covenants, or otherwise, to the extent the
consideration therefor exceeds the fair value thereof; and (iii) a Dissolution
Triggering Event, all amounts available for distribution to shareholders (after
paying all bona fide debts and obligations of the Corporation other than amounts
payable to the Holders of Preferred Stock).
13. Change in Control. Each of the following events shall be considered
a "Change in Control": (i) a merger or consolidation of the Corporation with any
other entity as a result of which the holders of Common Stock immediately prior
to the merger or consolidation do not own (on a fully diluted basis) a majority
of the outstanding capital stock or other equity interests of the surviving
entity; (ii) any event or series of events that causes any person, group or
entity, together with its affiliates and associates, to be the beneficial owner
of a majority of the outstanding securities of the Corporation that have the
right to vote generally in the election of the directors of the Corporation (for
the purposes of this paragraph, "Voting Securities"), or that results in any
person or entity that currently owns a majority of the outstanding voting
securities of Maker increasing its ownership percentage by 5% or more; provided,
however, that neither the issuance of Series A Preferred Stock nor the issuance
of Common Stock upon conversion of Series A Preferred Stock shall be an issuance
or transfer of Voting Securities or securities convertible into Voting
Securities for purposes of this clause; (iii) any reclassification of securities
of the Corporation or any
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recapitalization of the Corporation that, in either case, has the effect of
increasing the percentage of the outstanding Voting Securities of the
Corporation that are beneficially owned by any shareholder of the Corporation by
5% or more; or (iv) any acquisition (pursuant to a tender offer or otherwise) of
securities of the Corporation that results in any person, group or entity,
together with its affiliates and associates, being the beneficial owner of a
majority of the then outstanding Voting Securities of the Corporation or that
results in any person or entity that currently owns a majority of the
outstanding Voting Securities of the Corporation increasing its percentage of
outstanding Voting Securities by 5% or more. For purposes of this paragraph, the
term "beneficial owner" means, with respect to any security, a person or entity
who has an economic interest in such security, has the right to acquire such
security (including by virtue of owning convertible securities, rights, options
or warrants, whether such right is immediately exercisable or subject to certain
conditions, including lapse of time, with any securities not outstanding that
are subject to such convertible securities, rights, options or warrants being
deemed to be outstanding for the purpose of computing the percentage of
outstanding securities of a class owned by a person but not being deemed to be
outstanding for the purpose of computing the percentage of the class by any
other person), has the right to vote or direct the voting of such security, or
has the right to dispose or direct the disposition of such security; the term
"outstanding" includes securities that, pursuant to the foregoing definition,
are deemed beneficially owned, regardless of whether actually issued and
outstanding; and the terms "associate" and "affiliate" have the meaning given
them in regulations promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended.
14. Certain Restrictions on the Corporation. As long as any shares of
Series A Preferred Stock shall be outstanding, the Corporation shall not,
without the consent of the holders of a majority of the outstanding shares of
Series A Preferred Stock, (i) issue any capital stock that is equal with or
senior to the Series A Preferred Stock with respect to dividends, redemption, or
(except with respect to Common Stock as described in the section "Priority of
the Series A Preferred Stock in the Event of Liquidation") liquidation
preference; (ii) fail to have reserved sufficient shares of Common Stock to
permit full conversion of the Series A Preferred Stock as provided herein; (iii)
issue any capital stock that would cause there to be insufficient shares of
Common Stock to permit full conversion of the Series A Preferred Stock as
provided herein; (iv) amend the Articles of Incorporation of the Corporation;
(v) have outstanding, at any time, indebtedness for borrowed money and/or
capital leases in excess of $4,300,000 or incur any indebtedness for borrowed
money and/or capital leases, in a single transaction or series of related
transactions, in excess of $500,000; (vi) enter into any transaction or series
of related transactions with any director, officer or holder of over 10% of the
outstanding shares of Common Stock or any affiliates of any such person, other
than a wholly owned subsidiary of the Corporation involving over $50,000 (other
than employment arrangements existing on June 30, 1998); or (vii) increase the
annual compensation of any employee by $50,000 or more. Any action taken
hereunder by the Corporation without such consent shall be void.
15. Reservation of Shares. The Corporation shall at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock and issued Common Stock held in its
treasury, solely for the purpose of effecting the
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conversion of the shares of Series A Preferred Stock as provided herein, the
full number of shares of Common Stock then issuable upon the conversion of all
outstanding shares of Series A Preferred Stock. For the purpose of this
paragraph, the full number of Common Stock issuable upon the conversion of all
outstanding shares of Series A Preferred Stock shall be computed as if at the
time of computation of such number of Common Stock all outstanding shares of
Series A Preferred Stock were held by a single Holder. The Corporation shall
from time to time, in accordance with the laws of the State of Colorado,
increase the number of shares of its Common Stock if at any time the aggregate
of the authorized number of shares of its Common Shares remaining unissued and
its issued Common Stock held in its treasury (other than any such shares
reserved for issuance in any other matter) shall not be sufficient to permit the
conversion of all shares of Series A Preferred Stock at the time outstanding.
16. Taxes. The Corporation shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issue or
delivery of Common Stock on conversion of shares of Series A Preferred Stock
pursuant hereto. The Corporation shall not, however, be required to pay any such
tax which may be payable in respect of any transfer involved in the issue or
transfer and delivery of Common Stock in a name other than that in which the
shares of Series A Preferred Stock so converted were registered, and no such
issue or delivery shall be made unless and until the person requesting such
issue has paid to the Corporation the amount of any such tax or has established
to the satisfaction of the Corporation that such tax has been paid.
17. Waiver. Notwithstanding anything to the contrary herein, any
condition, requirement, or covenant contained in this Article may be waived in
writing by the person(s) for whose benefit such condition, requirement, or
covenant is made.
18. Notice. The Corporation will give Holders of Series A Preferred
Stock at least twenty days' advance written notice of any Sale Triggering Event
or Change in Control Triggering Event, any record date relating to such
Triggering Event, and, to the extent possible, at least twenty days' advance
written notice of any event that could give rise to either such Triggering Event
or any event that could lead to a liquidation of the Corporation. Any notices
required to be given hereunder shall be in writing and, unless otherwise
provided herein, shall be deemed validly delivered if delivered personally or
sent by certified mail postage prepaid to the Corporation at its address set
forth on the first page of its most recent filing with the Securities and
Exchange Commission or, if no longer registered, its registered office, and to
Holders of Series A Preferred Stock at the address listed in the stock records
of the Corporation. Notice given by mail as set out above shall be deemed
delivered three days from the date of mailing.
(d) Each holder of Common Stock shall have one vote for each share
outstanding in his or her name on the books of the Corporation and entitled to
vote, except that in the election of directors he or she shall have the right to
vote such number of shares for as many persons as there are directors to be
elected and for whose election the shareholder has a right to vote. Cumulative
voting shall not be allowed in the election of directors or for any other
purpose.
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(e) No shareholder of the Corporation shall have any preemptive or
similar right to acquire any additional unissued or treasury shares of stock or
for other securities of any class, or for rights, warrants or options to
purchase stock or for scrip, or for securities of any kind convertible into
stock or carrying stock purchase warrants or privileges.
(f) The board of directors may from time to time distribute to the
shareholders in partial liquidation, out of stated capital or capital surplus of
the Corporation, a portion of its assets, in cash or property, subject to the
limitations contained in the statutes of Colorado and elsewhere in these
Articles of Incorporation."
IN WITNESS WHEREOF, these Articles of Amendment to the Articles of
Incorporation are executed on behalf of the Company by its President effective
this the 12th day of November, 1998.
MB Software Corporation
By: /s/ Scott A. Haire
---------------------------------
Scott A. Haire, President
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