EXHIBIT 3.5(a)
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF
SERIES B CONVERTIBLE PREFERRED STOCK
OF
PHOTOLOFT, INC.
Edward C. MacBeth and Jack Marshall certify that:
1. They are the President, Chief Executive Officer and Assistant
Secretary, respectively, of PhotoLoft, Inc., a corporation organized and
existing under the State of Nevada (the "Company").
2. The instrument being corrected is entitled "Certificate of
Designations, Preferences and Rights of Series B Convertible Preferred Stock of
PhotoLoft.com", and said instrument was filed with the Secretary of State of the
State of Nevada on May 17, 2000.
3. Section 2(d)(i) of said Certificate of Designation, as corrected,
should read as follows:
(i) Holder(s) Delivery Requirements. To convert Series B Preferred
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Shares into full shares of Common Stock at any time within thirty (30) days
of the date of issuance of the Series B Preferred Shares (and, in no case
later than said thirtieth (30th) day after the date of issuance) (the
"Conversion Date"), the holder(s) thereof shall (A) deliver or transmit by
facsimile, for receipt on or prior to 11:59 p.m., Eastern Standard Time, on
such date, a copy of a fully executed notice of conversion in the form
attached hereto (the "CONVERSION NOTICE") to the Company or its designated
transfer agent (the "TRANSFER AGENT"), and (B) surrender to a common
carrier for delivery to the Company or the Transfer Agent as soon as
practicable following such date, the original certificates representing the
Series B Preferred Shares being converted (or an indemnification
undertaking with respect to such shares in the case of their loss, theft or
destruction) (the "PREFERRED STOCK CERTIFICATES") and the originally
executed Conversion Notice.
4. Section 2(e) of said Certificate of Designation, as corrected,
should read as follows:
(e) Mandatory Conversion.On the first to occur of (i) the thirtieth (30th)
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day from the date of issuance of the Series B Preferred Shares or (ii) a sale of
all or substantially all of the Company's assets to another Person (as defined
below) or a merger or similar transaction which is effected in such a way that
the Company is not the surviving entity or shares of Common Stock of the Company
are to be cancelled in exchange for value (referred to herein as in "ORGANIC
CHANGE") (for purposes of this Agreement, "PERSON" shall mean an individual, a
limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof), then all such Series B Preferred Shares shall automatically be
converted as of such date (all Series B Preferred Shares shall be converted as
of the closing of said Organic Change as if the holder(s) of such Series B
Preferred Shares had given the Conversion Notice on the date of such closing and
the Conversion Date had been fixed as of the date of such closing) in accordance
with this Section 2, and all holders of Series B Preferred Shares shall within
two (2) business days thereafter surrender all Preferred Stock Certificates,
duly endorsed for cancellation, to the Company or its Transfer Agent. No person
shall thereafter have any rights in respect of Series B Preferred Shares, except
the right to receive shares of Common Stock on conversion thereof as provided in
this Section 2.
5. That said Sections, as corrected, conform the wording of the amended
Sections to that adopted by the Board of Directors of the Company.
IN WITNESS WHEREOF, the Company has caused this Certificate of Correction to
be signed by Jack Marshall, its Chief Executive Officer and Assistant Secretary,
as of the 28th day of July, 2000.
PHOTOLOFT.COM
By:
Name: Jack Marshall
Title: Chief Executive Officer and Assistant Secretary
IN WITNESS WHEREOF, the Company has caused this Certificate of Correction to
be signed by Edward C. MacBeth, its President, as of the 28th day of July,
2000.
By:
Name: Edward C. MacBeth
Title: President