EXHIBIT 3.1(e)
CERTIFICATE OF DESIGNATION, PREFERENCES,
RIGHTS, AND LIMITATIONS
OF
SERIES D CONVERTIBLE REDEEMABLE PREFERRED STOCK
OF
CLAIMSNET.COM INC.
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware (the "DGCL"), CLAIMSNET.COM INC., a Delaware corporation (the
"Corporation"), does hereby certify that:
FIRST: The Corporation was incorporated in the State of Delaware on
September 11, 1997 and the authorized number of shares of Preferred Stock, par
value $.001 per share, of the Corporation is 4,000,000, none of which is
outstanding prior to the filing hereof; and
SECOND: Pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation of the Corporation and by the provisions of
Sections 141 and 151 et seq of the DGCL, the Board of Directors, at a meeting
duly called pursuant to notice and duly given, the minutes of which are attached
hereto as Exhibit 1, adopted the following resolutions authorizing the issuance
of an aggregate of 3,304 shares of Series D Preferred Stock (as defined below),
which resolutions are still in full force and effect and are not in conflict
with any provisions of the Certificate of Incorporation or By-Laws of the
Corporation:
WHEREAS, the Board of Directors of the Corporation is
authorized, within the limitations and restrictions stated in the
Certificate of Incorporation, to fix by resolution or resolutions the
designation of each series of preferred stock and the powers,
preferences, and relative participating, optional, voting, or other
special rights, and the qualifications, limitations, or restrictions
thereof; and
WHEREAS, it is the desire of the Board of Directors of the
Corporation, pursuant to its authority as aforesaid, to fix the terms
of one series of preferred stock.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to authority
vested in the Board of Directors of the Corporation by Section 151 of
the DGCL, and in accordance with the provisions of the Certificate of
Incorporation of the Corporation, one series of preferred stock, par
value $.001 per share, of the Corporation be and hereby is created and
provided for with the terms, designation, relative rights, preferences,
and limitations as follows:
1. DEFINITIONS.
COMMON STOCK. Common stock, par value $.001 per share, of the
Corporation.
ISSUANCE DATE. With respect to any shares of Series D Preferred Stock,
the date of the issuance of such shares of Series D Preferred Stock by the
Corporation.
LIQUIDATION. The event of any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation.
LIQUIDATION PRICE. With respect to any share of Series D Preferred
Stock, the amount equal to the sum of (i) the Stated Value per share and (ii)
declared, but unpaid, dividends, if any, on such share of Series D Preferred
Stock from the date hereof until the date immediately prior to, but excluding,
the date of the Liquidation.
REDEMPTION DATE. As defined in Section 5 hereof.
REDEMPTION PRICE. With respect to any share of Series D Preferred
Stock, the amount equal to the sum of (i) the Stated Value per share and (ii)
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declared, but unpaid, dividends, if any, on such share of Series D Preferred
Stock from the date hereof until the date immediately prior to, but excluding,
the date of the redemption. Upon redemption thereof by the Corporation, the
shares of Series D Preferred Stock shall be cancelled and shall become
authorized, but unissued shares of preferred stock, par value $0.001, per share,
of the Corporation.
REORGANIZATION. As defined in Section 7(e) hereof.
SECURITIES ACT. Securities Act of 1933, as amended.
SERIES D PREFERRED STOCK. The Series D Convertible Redeemable Preferred
Stock, par value $.001 per share.
STATED VALUE. $250 per share of Series D Preferred Stock.
2. DESIGNATION AND NUMBER OF SHARES. The series of preferred stock
established hereby shall consist of 3,304 shares and shall be designated "Series
D Convertible Redeemable Preferred Stock, par value $.001 per share".
3. DIVIDENDS. Subject to the next sentence of this Section 3, no dividends
shall accrue on the Series D Preferred Stock. Each share of Series D Preferred
Stock shall be entitled to participate in cash dividends pari passu with the
Common Stock, when declared and paid out of capital legally available therefor,
on an as converted basis.
4. VOTING.
(a) GENERAL RIGHTS. Except as otherwise provided herein or as
required by law, the Series D Preferred Stock shall be voted together with the
shares of the Common Stock and not as a separate class, at any annual or special
meeting of stockholders of the Corporation, and may act by written consent in
the same manner as the holders of the common stock of the Corporation, in each
case on an as converted basis.
(b) SEPARATE VOTE OF THE SERIES D PREFERRED STOCK.
Notwithstanding anything to the contrary in Section 4(a), for so long as any
shares of Series D Preferred Stock remain outstanding, in addition to any other
vote or consent required by non-waivable provisions of the DGCL to be taken by
the holders of Series D Preferred Stock separately as a class, the affirmative
vote or written consent of the holders of at least a majority of the outstanding
Series D Preferred Stock, voting separately as a class, shall be necessary for
the Corporation to effect or validate any alteration or amendment to the
Corporation's Certificate of Incorporation (including this certificate) having
an adverse effect on the terms, powers, designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions of the Series D Preferred Stock; provided, that, the creation or
designation of a class or series of the capital stock of the Corporation with
any powers, designations, preferences and relative, participating, optional or
other special rights senior to, or on parity with, the Series D Preferred Stock
in one or more regards shall not be deemed to require the affirmative vote of
holders of Series D Preferred Stock voting separately as a class.
5. OPTIONAL REDEMPTION.
(a) REDEMPTION RIGHT. In the event that the closing sale
price for the Common Stock, or, if no closing sale price is reported, the
average of the high bid and low asked price for the Common Stock, exceed an
amount equal to 200% of the then effective conversion price per share of Series
D Preferred Stock for 20 of any 30 consecutive trading days (the happening of
such event, a "Redemption Triggering Event"), the Corporation shall be entitled
to redeem, out of funds legally available therefor, all or any portion of the
Series D Preferred Stock in accordance with this Section 5. On the date of
redemption (the "Redemption Date"), each holder of Series D Preferred Stock to
be redeemed shall surrender certificates representing such holder's ownership of
Series D Preferred Stock to be redeemed to the Corporation as provided in
Section 5(e). On the Redemption Date, the Corporation shall redeem the Series D
Preferred Stock to be redeemed to the extent of the funds of the Corporation
legally available therefore. Each share of Series D Preferred Stock shall be
redeemed pursuant to this Section 5 for an amount equal to its respective Stated
Value (as defined below). The relevant Redemption Price shall be prorated for
fractional shares of Series D Preferred Stock.
(b) REDEMPTION PROCEDURE.
(i) Within ten days following any Redemption Triggering
Event, the Corporation may, but shall not be obligated to, elect to redeem all
or any portion of the Series D Preferred Stock by providing written notice to
the holders, which notice shall be mailed in accordance with Section 8(b) hereof
within 20 days following such Redemption Triggering Event. Such notice shall
state the number of shares to be redeemed and the Redemption Date, which date
shall be within 20 days of the date of such notice. The Corporation shall be
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entitled to utilize any method chosen by the Board of Directors thereof in order
to determine which shares of Series D Redeemable Preferred Stock to redeem.
Payment for such redeemed shares shall be made by the Corporation within five
days following the Redemption Date.
(ii) On the Redemption Date, regardless of whether the
certificate or certificates representing the shares of Series D Preferred Stock
redeemed on such date have been surrendered for cancellation, or whether the
respective Redemption Price for such shares (or fractional shares) of Series D
Preferred Stock has been received by the relevant holder, each share (or
fractional share) of Series D Preferred Stock redeemed in accordance with this
Section 5 shall no longer be deemed outstanding and all rights with respect to
any such share shall forthwith cease following such redemption, except only the
right of the holder thereof to receive, upon presentation in accordance with the
requirements in Section 5(c) of the certificate or certificates representing
shares redeemed pursuant to this Section 5, the applicable redemption price for
such share (or fractional share), without interest thereon. Notwithstanding
anything to the contrary herein, the Corporation shall not be required to make
any payment in respect of shares (or fractional shares) of Series D Preferred
Stock redeemed pursuant to this Section 5 until actual delivery to the
Corporation or its agents of the certificates representing the shares redeemed
hereby, such delivery to be conducted in accordance with the requirements in
Section 5(c).
(iii) All shares (or fractional shares) of the Series D
Preferred Stock redeemed pursuant to this Section 5, or otherwise acquired by
the Corporation in any manner whatsoever, shall be returned to the pool of the
Corporation's authorized but unissued shares of undesignated preferred stock;
and the Corporation may from time to time take such appropriate corporate action
as may be necessary to reduce the number of authorized shares of Series D
Preferred Stock accordingly.
(c) PRESENTATION. The Corporation shall not be obligated to
pay the redemption price unless the certificates evidencing the shares of Series
D Preferred Stock to be redeemed are either delivered to the Corporation or its
transfer agent as provided below, or the holder notifies the Corporation or its
transfer agent that such certificates have been lost, stolen or destroyed and
executes an agreement satisfactory to the Corporation to indemnify the
Corporation and its representatives and agents from any loss incurred by such
persons or entities in connection with such certificates. On the Redemption
Date, each holder of Series D Preferred Stock to be redeemed shall surrender the
certificates representing all of such holder's shares of Series D Preferred
Stock at the principal offices of the Corporation or any transfer agent for the
Series D Preferred Stock in accordance herewith. Thereupon, there shall be
delivered to the relevant holder promptly at such address and in the holder's
name as shown on such surrendered certificate or certificates, a Corporation
check representing the redemption price for which the shares of Series D
Preferred Stock surrendered were redeemed.
6. LIQUIDATION RIGHTS. In the event of any Liquidation prior to the
conversion, if any, of the Series D Preferred Stock, or the redemption if any,
thereof, pursuant to the terms hereof, before any payment or distribution of
assets of the Corporation shall be made to, or set apart for, the holders of the
Common Stock or any other capital stock of the Corporation not ranking prior to,
or on a parity with, the Series D Preferred Stock in respect of rights upon a
Liquidation, the holders of the Series D Preferred Stock shall first be entitled
to receive payment out of such assets of the Corporation of an amount of cash
per share of Series D Preferred Stock equal to the Liquidation Price. If the
assets of the Corporation are insufficient to permit full payment to the holders
of the Series D Preferred Stock as herein provided, such assets shall be
distributed ratably among the holders of the outstanding Series D Preferred
Stock.
7. CONVERSION. The Series D Preferred Stock shall be converted at the
option of the holder into shares of the common stock of the Corporation upon the
following terms:
(a) CONVERSION. Subject to and in compliance with the
provisions of this Section 7, on the Redemption Date, all shares (and any
fractional shares) of Series D Preferred Stock which are not theretofore
redeemed may, at the option of the holder, be converted into fully-paid and
nonassessable shares of Common Stock (as defined below). The number of shares of
Common Stock to which a holder of Series D Preferred Stock shall be entitled
upon conversion shall equal the quotient of the Stated Value per share of Series
D Preferred Stock divided by the Series D Conversion Rate (as hereinafter
defined).
(b) SERIES D CONVERSION RATE. Except as otherwise adjusted
pursuant to Section 7(c), the conversion rate for conversion of the Series D
Preferred Stock pursuant to Section 7(a) (the "SERIES D CONVERSION RATE") shall
be $0.25.
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(c) ADJUSTMENT FOR COMMON STOCK DIVIDENDS AND DISTRIBUTIONS.
If the Corporation at any time or from time to time after the original issue
date of any shares of Series D Preferred Stock makes, or fixes a record date for
the determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock without the
payment of additional consideration, in each such event the Series D Conversion
Rate that is then in effect shall be proportionately decreased as of the time of
such issuance or, in the event such record date is fixed, as of the close of
business on such record date, by multiplying the Series D Conversion Rate then
in effect by a fraction (i) the numerator of which is the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and (ii) the denominator
of which is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date plus the number of shares of Common Stock issuable in payment of
such dividend or distribution; provided, however, that if such record date is
fixed and such dividend is not fully paid or if such distribution is not fully
made on the date fixed therefor, the Series D Conversion Price shall be
recomputed accordingly as of the close of business on such record date and
thereafter the Series D Conversion Price shall be adjusted pursuant to this
Section 7(c) to reflect the actual payment of such dividend or distribution.
(d) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND
SUBSTITUTION. If at any time or from time to time after the original issue date
of any shares of Series D Preferred Stock, the Common Stock issuable upon the
conversion of the Series D Preferred Stock is changed into the same or a
different number of shares of any class or classes of stock of the Corporation,
whether by recapitalization, reclassification or otherwise (other than in
connection with an Acquisition (as defined below) or Asset Transfer (as defined
below), or a subdivision or combination of shares, or a stock dividend or
distribution, or a reorganization, merger, consolidation or sale of assets
provided for elsewhere in this Section 4), in any such event each holder of
Series D Preferred Stock shall have the right thereafter to receive upon
conversion of their shares of Series D Preferred Stock on the Redemption Date
the kind and amount of stock and other securities and property receivable upon
such recapitalization, reclassification or other change by holders of the shares
of Common Stock into which such shares of Series D Preferred Stock would then be
convertible immediately prior to such recapitalization, reclassification or
change, all subject to further adjustment as provided herein or with respect to
such other securities or property by the terms thereof. For the purposes hereof,
the following capitalized terms shall have the meanings ascribed to them below:
"ACQUISITION" means any consolidation or merger of
the Corporation as a result of which the Corporation is not the surviving
entity;
"ASSET SALE" means the sale, lease, license or
other disposition of all, or substantially all, of the assets of the
Corporation.
(e) REORGANIZATIONS, MERGERS OR CONSOLIDATIONS. If at any
time or from time to time after the original issue date of any shares of Series
D Preferred Stock, there is a capital reorganization of the Common Stock (other
than a recapitalization, reclassification, subdivision, combination, exchange or
substitution of shares provided for elsewhere in this Section 7) or an
Acquisition or an Asset Sale shall be consummated, as a part of such capital
reorganization, Acquisition or Asset Sale, provision shall be made so that the
holders of the Series D Preferred Stock shall thereafter be entitled to receive
upon conversion of the Series D Preferred Stock on the Redemption Date the
number of shares of stock or other securities or property to which a holder of
the number of shares of Common Stock then deliverable upon conversion of shares
of Series D Preferred Stock would have been entitled upon consummation of such
capital reorganization, Acquisition or Asset Sale, subject to adjustment in
respect of such stock or securities by the terms thereof. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 7 with respect to the rights of the holders of Series D Preferred
Stock after the capital reorganization, Acquisition or Asset Sale to the end
that the provisions of this Section 4 (including adjustment of the Series D
Conversion Price then in effect and the number of shares of Common Stock
issuable upon conversion of the Series D Preferred Stock on the Redemption Date)
shall be applicable after that event and be as nearly equivalent as practicable.
(f) CERTIFICATE OF ADJUSTMENT. In each case of the occurrence
of events or circumstances which would require an adjustment or readjustment of
(i) the Series D Conversion Price for the number of shares of Common Stock or
other securities issuable upon conversion of the Series D Preferred Stock on the
Redemption Date, or (ii) the type or amount of other property issuable upon
conversion of the Series D Preferred Stock on any Redemption Date, the
Corporation, at its expense, shall compute such adjustment or readjustment in
accordance with the provisions hereof and prepare a certificate showing such
adjustment or readjustment, and shall promptly deliver such certificate to each
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registered holder of Series D Preferred Stock. The certificate shall set forth
such adjustment or readjustment, showing in reasonable detail the facts upon
which such adjustment or readjustment is based, including a statement of the
type and amount, if any, of other property which at the time would then be
received upon conversion of the Series D Preferred Stock on the Redemption Date.
(g) NOTICES OF RECORD DATE. Upon (i) any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend or other distribution described in Section 7(c), or (ii) any
Acquisition or other capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the Corporation,
any Asset Transfer, or any voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, the Corporation shall mail to each holder of
Series D Preferred Stock at least ten (10) days prior to the record date
specified therein (or such shorter period approved by the holders of a majority
of the then outstanding Series D Preferred Stock) a notice specifying (A) the
date on which any such record is to be taken for the purpose of such dividend or
distribution and a description of such dividend or distribution, (B) the date on
which any such Acquisition, reorganization, reclassification, Asset Transfer,
dissolution, liquidation or winding up is expected to become effective, and (C)
the date, if any, that is to be fixed as to when the holders of record of Common
Stock (or other securities) shall be entitled to exchange their shares of Common
Stock (or other securities) for securities or other property deliverable upon
such Acquisition, reorganization, reclassification, Asset Transfer, dissolution,
liquidation or winding up.
(h) FRACTIONAL SHARES. No fractional shares of Common Stock
shall be issued upon conversion of Series D Preferred Stock. All shares of
Common Stock (including fractions thereof) issuable upon conversion of the
Series D Preferred Stock shall be aggregated for purposes of determining whether
the conversion would result in the issuance of any fractional share. If, after
the aforementioned aggregation, the conversion would result in the issuance of
any fractional share, the aggregate number of shares of Common Stock issuable
upon conversion of the Series D Preferred Stock shall be rounded down to the
nearest whole share of Common Stock.
(i) NOTICES AND DELIVERIES. Any notice required by the
provisions of this Section 7 shall be in writing and shall be deemed effectively
given: (i) upon personal delivery to the party to be notified (signature
required), (ii) when sent by confirmed facsimile if sent during normal business
hours of the recipient; if not, then on the next business day, (iii) five (5)
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (iv) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with verification of
receipt. All notices and other deliveries to holders of Series D Preferred Stock
provided for herein shall be addressed to each holder of record at the address
of such holder appearing on the books of the Corporation or, if to the
Corporation or its transfer agent, to the principal offices thereof or such
other address as may be designated in a written notice delivered in accordance
with this Section 7(i).
(j) PAYMENT OF TAXES. The Corporation will pay all stock
transfer taxes (other than taxes based upon income) and other governmental
charges that may be imposed with respect to the issue or delivery of shares of
Common Stock upon conversion of shares of Series D Preferred Stock, excluding
any tax or other charge imposed in connection with any transfer involved in the
issue and delivery of shares of Common Stock in a name other than that in which
the shares of Series D Preferred Stock so converted were registered.
(k) CONVERTED SHARES. All shares of the Series D Preferred
Stock converted pursuant to this Section 7, or otherwise acquired by the
Corporation in any manner whatsoever, shall be returned to the pool of the
Corporation's authorized but unissued shares of undesignated preferred stock;
and the Corporation may from time to time take such appropriate corporate action
as may be necessary to reduce the number of authorized shares of Series D
Preferred Stock accordingly.
8. MISCELLANEOUS.
(a) CLOSING OF TRANSFER BOOKS. To facilitate the payment of any
dividend with respect to the Series D Preferred Stock or any Liquidation, the
Board of Directors of the Corporation is authorized, but not required, to set a
record date not earlier than 60 days and not later than 10 days prior to the
date of the distribution, in the case of a dividend or a Liquidation, as the
case may be.
(b) NOTICES. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested or by Federal Express, Express Mail, or similar
overnight delivery or courier service or delivered (in-person or by telecopy,
telex, or similar telecommunications equipment) against receipt to the party to
whom it is to be given, in the case of the holders of the Series D Preferred
Stock, at the address of each such holder set forth in the stock transfer ledger
of the Corporation, or, in the case of the Corporation, at 12801 N. Central
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Expressway, Suite 1515, Dallas, Texas, 75243. Any notice or other communication
given by certified mail shall be deemed given at the time of certification
thereof. Any notice given by other means permitted by this paragraph 8(a) shall
be deemed given at the time of receipt thereof.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by the President and attested by its Secretary this____ day of March
2002.
CLAIMSNET.COM
BY: ____________________________________________
NAME: PAUL W. MILLER
TITLE: PRESIDENT AND CHIEF EXECUTIVE OFFICER
ATTEST:
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