Exhibit 3.4
AMENDED
CERTIFICATE OF DESIGNATION
OF
SERIES B CONVERTIBLE PREFERRED STOCK
OF
VIISAGE TECHNOLOGY, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
This Amended Certificate of Designation of Series B Convertible Preferred
Stock (this "Certificate of Designation") amends the Certificate of Designation
of Series B Convertible Preferred Stock filed by Viisage Technology, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the "Corporation," or the "Company") on December 29, 1999.
No shares of Series B Convertible Preferred Stock have been issued prior to the
filing of this Certificate of Designation.
The Corporation hereby certifies that the following resolutions were
adopted by the Board of Directors of the Corporation on December 23, 1999
pursuant to authority of the Board of Directors as required by Section 151 of
the General Corporation Law of the State of Delaware:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors of this Corporation (the "Board of Directors" or the "Board") in
accordance with the provisions of its Certificate of Incorporation, the Board of
Directors hereby authorizes a series of the Corporation's previously authorized
Preferred Stock, par value $0.001 per share (the "Preferred Stock"), and hereby
states the designation and number of shares, and fixes the relative rights,
preferences, privileges, powers and restrictions thereof as follows:
Series B 7% Convertible Preferred Stock:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. The terms defined in this Article whenever used
in this Certificate of Designation have the following respective meanings:
(a) "ADDITIONAL CAPITAL SHARES" has the meaning set forth in Section 6.1(e).
(b) "AFFILIATE" has the meaning ascribed to such term in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended.
(c) "BUSINESS DAY" means a day other than Saturday, Sunday or any day on which
banks located in the State of New York are authorized or obligated to
close.
(d) "CAPITAL SHARES" means the Common Shares and any other shares of any other
class or series of common stock, whether now or hereafter authorized and
however
designated, which have the right to participate in the distribution of
earnings and assets (upon dissolution, liquidation or winding-up) of the
Corporation.
(e) "CLOSING DATE" means December 30, 1999.
(f) "COMMON SHARES" or "COMMON STOCK" means shares of common stock, $.001 par
value, of the Corporation.
(g) "COMMON STOCK ISSUED AT CONVERSION" when used with reference to the
securities issuable upon conversion of the Series B Preferred Stock, means
all Common Shares now or hereafter Outstanding and securities of any other
class or series into which the Series B Preferred Stock hereafter shall
have been changed or substituted, whether now or hereafter created and
however designated.
(h) "CONVERSION DATE" means any day on which all or any portion of shares of
the Series B Preferred Stock is converted in accordance with the provisions
hereof.
(i) "CONVERSION NOTICE" has the meaning set forth in Section 6.2.
(j) "CONVERSION PRICE" means on any date of determination the applicable price
for the conversion of shares of Series B Preferred Stock into Common Shares
on such day as set forth in Section 6.1.
(k) "CONVERSION RATIO" means on any date of determination the applicable
percentage of the Market Price for conversion of shares of Series B
Preferred Stock into Common Shares on such day as set forth in Section 6.1.
(l) "CORPORATION" means Viisage Technology, Inc., a Delaware corporation, and
any successor or resulting corporation by way of merger, consolidation,
sale or exchange of all or substantially all of the Corporation's assets,
or otherwise.
(m) "CURRENT MARKET PRICE" means on any date of determination the closing bid
price of a Common Share on such day as reported by the Nasdaq Stock Market,
Inc. ("NASDAQ").
(n) "DIVIDEND PAYMENT DUE DATE" has the meaning set forth in Section 4(a)(ii).
(o) "HOLDER" means The Shaar Fund Ltd., any successor thereto, or any Person to
whom the Series B Preferred Stock is subsequently transferred in accordance
with the provisions hereof.
(p) "LIQUIDATION PREFERENCE" has the meaning set forth in Section 5(c).
(q) "MARKET DISRUPTION EVENT" means any event that results in a material
suspension or limitation of trading of Common Shares on NASDAQ.
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(r) "MARKET PRICE" per Common Share means the average of any three (3)
consecutive closing bid prices of the Common Shares as reported on NASDAQ
for the Valuation Period.
(s) "OUTSTANDING" when used with reference to Common Shares or Capital Shares
(collectively, "Shares"), means, on any date of determination, all issued
and outstanding Shares, and includes all such Shares issuable in respect of
outstanding scrip or any certificates representing fractional interests in
such Shares; provided, however, that any such Shares directly or indirectly
owned or held by or for the account of the Corporation or any Subsidiary of
the Corporation shall not be deemed "Outstanding" for purposes hereof.
(t) "PERSON" means an individual, a corporation, partnership, an association, a
limited liability company, unincorporated business organization, a trust or
other entity or organization, and any government or political subdivision
or any agency or instrumentality thereof.
(U) "REGISTRATION RIGHTS AGREEMENT" means that certain Registration Rights
Agreement dated a date even herewith between the Corporation and The Shaar
Fund Ltd.
(v) "SEC" means the United States Securities and Exchange Commission.
(w) "SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as in effect at the time.
(x) "SECURITIES PURCHASE AGREEMENT" means that certain Securities Purchase
Agreement dated a date even herewith between the Corporation and The Shaar
Fund Ltd.
(y) "SERIES B PREFERRED STOCK" means the Series B 7% Convertible Preferred
Stock of the Corporation or such other convertible Preferred Stock
exchanged therefor as provided in Section 2.1.
(z) "STATED VALUE" has the meaning set forth in Article 2.
(aa) "SUBSIDIARY" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are
owned directly or indirectly by the Corporation.
(bb) "TRADING DAY" means any day on which purchases and sales of securities
authorized for quotation on NASDAQ are reported thereon and on which
no Market Disruption Event has occurred.
(cc) "VALUATION EVENT" has the meaning set forth in Section 6.1.
(dd) "VALUATION PERIOD" means the ten Trading Day period immediately
preceding the Conversion Date.
All references to "cash" or "$" herein means currency of the United States
of America.
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ARTICLE 2
DESIGNATION AND AMOUNT
SECTION 2.1
The designation of this series, which consists of 3,000 shares of Preferred
Stock, is Series B 7% Convertible Preferred Stock (the "Series B Preferred
Stock") and the stated value shall be One Thousand Dollars ($1,000) per share
(the "Stated Value").
ARTICLE 3
RANK
SECTION 3.1
The Series B Preferred Stock shall rank (i) prior to the Common Stock; (ii)
pari passu with the Corporation's Series A 7% Convertible Preferred Stock
("Series A Preferred Stock"); (iii) prior to any class or series of capital
stock of the Corporation hereafter created other than "Pari Passu Securities"
(collectively, with the Common Stock, "Junior Securities"); and (iv) pari passu
with any class or series of capital stock of the Corporation hereafter created
specifically ranking on parity with the Series B Preferred Stock ("Pari Passu
Securities").
ARTICLE 4
DIVIDENDS
SECTION 4.1
(a) (i) The Holder shall be entitled to receive, and the Board of
Directors shall be required to declare, out of funds legally available for the
payment of dividends, dividends at the rate of 7% per annum (computed on the
basis of a 360-day year) (the "Dividend Rate") on the Stated Value of each share
of Series B Preferred Stock on and as of the Dividend Payment Due Date.
Dividends on the Series B Preferred Stock shall be cumulative from the date of
issue, whether or not declared for any reason, including if such declaration is
prohibited under any outstanding indebtedness or borrowings of the Corporation
or any of its Subsidiaries, or any other contractual provision binding on the
Corporation or any of its Subsidiaries, and whether or not there shall be funds
legally available for the payment thereof.
(ii) Each dividend shall be payable at the Corporation's option, in
Common Stock or cash on a pro rata basis, upon conversion of the Preferred
Shares the "Dividend Payment Due Date"). Accrued and unpaid dividends may be
declared and paid at any time, without reference to any Dividend Payment Due
Date, to holders of record on such date, not more than 15 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(iii) At the option of the Corporation, the dividend shall be paid in
cash or through the issuance of duly and validly authorized and issued, fully
paid and nonassessable, freely tradeable shares of the Common Stock valued at
the Market Price. The Common Stock to be issued in lieu of cash payments shall
be registered for resale in the Registration Statement (as defined in the
Registration Rights Agreement) to be filed by the Corporation to register the
Common Stock issuable upon conversion of the shares of Series B Preferred Stock
and exercise
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of the Warrants as set forth in the Registration Rights Agreement.
Notwithstanding the foregoing, until such Registration Statement (as defined in
the Registration Rights Agreement) has been declared effective under the
Securities Act by the SEC, payment of dividends on the Series B Preferred Stock
shall be in cash.
(b) The Holder shall not be entitled to any dividends in excess of the
cumulative dividends, as herein provided, on the Series B Preferred Stock.
Except as provided in this Article 4, no interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on the
Series B Preferred Stock that may be in arrears.
(c) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on Pari Passu Securities for any
period unless full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for such payment on the Series B Preferred Stock prior to the date of
payment of the dividend on such class or series of Pari Passu Securities. When
dividends are not declared on the Series B Preferred Stock, all dividends
declared upon any other class or series of Pari Passu Securities shall be
declared ratably in proportion to the respective amounts of dividends
accumulated on the Series B Preferred Stock and accumulated on such Pari Passu
Securities.
(d) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Securities, nor shall any Junior
Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan (including a stock option
plan) of the Corporation or any subsidiary, (all such dividends, distributions,
redemptions or purchases being hereinafter referred to as a "Junior Securities
Distribution") for any consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any shares of any such stock) by the
Corporation, directly or indirectly, unless in each case the full cumulative
dividends required to be paid on all outstanding shares of the Series B
Preferred Stock and any other Pari Passu Securities shall have been paid or set
apart for payment with respect to the Series B Preferred Stock.
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ARTICLE 5
LIQUIDATION PREFERENCE
SECTION 5.1
(a) If the Corporation shall commence a voluntary case under the
Federal bankruptcy laws or any other applicable Federal or State bankruptcy,
insolvency or similar law, or consent to the entry of an order for relief in an
involuntary case under any law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the
Corporation or of any substantial part of its property, or make an assignment
for the benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or if a decree or order for relief in
respect of the Corporation shall be entered by a court having jurisdiction in
the premises in an involuntary case under the Federal bankruptcy laws or any
other applicable Federal or state bankruptcy, insolvency or similar law
resulting in the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and any such decree or order shall be unstayed and in effect for a
period of thirty (30) consecutive days and, on account of any such event, the
Corporation shall liquidate, dissolve or wind up, or if the Corporation shall
otherwise liquidate, dissolve or wind up (each such event being considered a
"Liquidation Event"), no distribution shall be made to the holders of any shares
of capital stock of the Corporation upon liquidation, dissolution or winding up
unless prior thereto, the holders of shares of Series B Preferred Stock, subject
to Article 5, shall have received the Liquidation Preference with respect to
each share. If upon the occurrence of a Liquidation Event, the assets and funds
available for distribution among the holders of the Series B Preferred Stock and
holders of Pari Passu Securities shall be insufficient to permit the payment to
such holders of the preferential amounts payable thereon, then the entire assets
and funds of the Corporation legally available for distribution to the Series B
Preferred Stock and the Pari Passu Securities shall be distributed ratably among
such shares in proportion to the ratio that the Liquidation Preference payable
on each such share bears to the aggregate Liquidation Preference payable on all
such shares.
(b) At the option of each Holder, the sale, conveyance of disposition
of all or substantially all of the assets of the Corporation, the effectuation
by the Corporation of a transaction or series of related transactions (or
excluding circumstances pursuant to the Securities Purchase Agreement or
transfers to a subsidiary controlled by the Corporation) in which more than 50%
of the voting power of the Corporation is disposed of, or the consolidation,
merger or other business combination of the Corporation with or into any other
Person or Persons when the Corporation is not the survivor shall either: (i) be
deemed to be a liquidation, dissolution or winding up of the Corporation
pursuant to which the Corporation shall be required to distribute, upon
consummation of and as a condition to, such transaction an amount equal to one
hundred percent (100%) of the Liquidation Preference with respect to each
outstanding share of Series B Preferred Stock in accordance with and subject to
the terms of this Article 5 or (ii) be treated pursuant to Article 5(c)(iii)
hereof; provided, that all holders of Series B Preferred Stock shall be deemed
to elect the option set forth in clause (i) hereof if at least a majority in
interest of such holders elect such option.
(c) For purposes hereof, the "Liquidation Preference" with respect to
a share of the Series B Preferred Stock shall mean an amount equal to the sum of
(i) the Stated Value thereof, plus (ii) the aggregate of all accrued and unpaid
dividends on such share of Series B
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Preferred Stock until the Dividend Payment Due Date; provided that, in the event
of an actual liquidation, dissolution or winding up of the Corporation, the
amount referred to in clause (ii) above shall be calculated by including accrued
and unpaid dividends to the actual date of such liquidation, dissolution or
winding up, rather than the Dividend Payment Due Date referred to above.
ARTICLE 6
CONVERSION OF PREFERRED STOCK
SECTION 6.1 Conversion; Conversion Price. At the option of the Holder, the
shares of Preferred Stock may be converted, either in whole or in part, into
Common Shares (calculated as to each such conversion to the nearest 1/100th of a
share), at any time, and from time to time following the date of issuance of the
Series B Preferred Stock (the "Issue Date") at a Conversion Price per share of
Common Stock equal to the lesser of: (i) $7.00 per share, (ii) 85% of the Market
Price for conversions consummated on or before October 30, 2000, and (B) 77% of
the Market Price for conversions consummated on or after November 1, 2000;
(a) notwithstanding anything herein to the contrary, the Holder shall
not have the right, and the Company shall not have the obligation, to convert
all or any portion of the Series A Preferred Stock (and the Company shall not
have the right to pay dividends on the Series A Preferred Stock in shares of
common stock) if and to the extent that the issuance to the Holder of shares of
common stock upon such conversion (or payment of dividends) would result in the
Holder being deemed the "beneficial owner" of 5% or more of the then outstanding
shares of Common Stock within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules promulgated thereunder; and
(b) unless the Corporation shall have obtained the approval of its
voting stockholders to such issuance in accordance with the rules of the NASDAQ
or such other stock market with which the Corporation shall be required to
comply, the Corporation shall not issue shares of Common Stock (i) upon
conversion of any shares of Series A Preferred Stock or (ii) as a dividend on
the Series A Preferred Stock, if such issuance of Common Stock, when added to
the number of shares of Common Stock previously issued by the Corporation (i)
upon conversion of shares of the Series A Preferred Stock, (ii) upon exercise of
the Warrants issued pursuant to the terms of the Securities Purchase Agreement
and (iii) in payment of dividends on the Series A Preferred Stock, would be in
excess of 19.99% of the number of shares of the Corporation's Common Stock which
were issued and outstanding on the Conversion Date (the "Maximum Issuance
Amount"). In the event that a properly executed Conversion Notice is received
by the Corporation which would require the Corporation to issue shares of Common
Stock equal to or in excess of the Maximum Issuance Amount, the Corporation
shall honor such conversion request by (i) converting the number of shares of
Series A Preferred Stock stated in the Conversion Notice not in excess of the
Maximum Issuance Amount and (ii) at the Company's option (A) redeeming the
number of shares of Series A Preferred Stock stated in the Conversion Notice
equal to or in excess of the Maximum Issuance Amount in cash at a price equal to
one hundred and twenty-five percent (125%) of the Stated Value of the shares of
Series A Preferred Stock to be so redeemed, together with the fair market value
of all accrued and unpaid dividends thereon, or (B) obtaining such stockholder
approval within 45 days of the relevant Conversion Notice. If such stockholder
approval is not so obtained within such 45 day period, the Company shall redeem
the number of shares named in the relevant Conversion Notice in excess of the
Maximum Issuance Amount as described in clause (ii)(A) above. In the event that
the Corporation shall
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elect to pay a dividend in shares of Common Stock which would require the
Corporation to issue shares of Common Stock equal to or in excess of the Maximum
Issuance Amount, the Corporation shall pay (i) a dividend in shares of Common
Stock equal to one less than an amount which would result in the Corporation
issuing shares equal to the Maximum Issuance Amount and (ii) the balance of the
dividend in cash.
The Holder of the Series B Preferred Stock may exercise its right of
conversion of such shares as follows: (i) 50% of the aggregate number of Series
B Preferred Shares issued to the Holder from and after the 180th day after the
Closing Date; and (ii) from and after the 270th day after the Closing Date, 100%
of the aggregate number of Series B Preferred Shares issued to the Holder.
The number of shares of Common Stock due upon conversion of Series B
Preferred Stock shall be (i) the number of shares of Series B Preferred Stock to
be converted, multiplied by (ii) the Stated Value and divided by (iii) the
applicable Conversion Price.
Within two (2) Business Days of the occurrence of a Valuation Event, the
Corporation shall send notice (the "Valuation Event Notice") of such occurrence
to the Holder. Notwithstanding anything to the contrary contained herein, if a
Valuation Event occurs during any Valuation Period, a new Valuation Period shall
begin on the Trading Day immediately following the occurrence of such Valuation
Event and end on the Conversion Date; provided that, if a Valuation Event occurs
on the fifth day of any Valuation Period, then the Conversion Price shall be the
Current Market Price of the Common Shares on such day; and provided, further,
that the Holder may, in its discretion, postpone such Conversion Date to a
Trading Day which is no more than five (5) Trading Days after the occurrence of
the latest Valuation Event by delivering a notification to the Corporation
within two (2) Business Days of the receipt of the Valuation Event Notice. In
the event that the Holder deems the Valuation Period to be other than the five
(5) Trading Days immediately prior to the Conversion Date, the Holder shall give
written notice of such fact to the Corporation in the related Conversion Notice
at the time of conversion.
For purposes of this Section 6.1, a "Valuation Event" shall mean an event in
which the Corporation at any time during a Valuation Period takes any of the
following actions:
(a) subdivides or combines its Capital Shares;
(b) makes any distribution of its Capital Shares;
(c) issues any additional Capital Shares (the "Additional Capital
Shares"), otherwise than as provided in the foregoing Sections 6.1(a) and
6.1(b) above, at a price per share less, or for other consideration lower,
than the Current Market Price in effect immediately prior to such
issuances, or without consideration, except for issuances under employee
benefit plans consistent with those presently in effect and issuances under
presently outstanding warrants, options or convertible securities;
(d) issues any warrants, options or other rights to subscribe for or
purchase any Additional Capital Shares and the price per share for which
Additional Capital Shares may at any time thereafter be issuable pursuant
to such warrants, options or other rights shall be less than the Current
Market Price in effect immediately prior to such issuance;
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(e) issues any securities convertible into or exchangeable or
exercisable for Capital Shares and the consideration per share for which
Additional Capital Shares may at any time thereafter be issuable pursuant
to the terms of such convertible, exchangeable or exercisable securities
shall be less than the Current Market Price in effect immediately prior to
such issuance;
(f) makes a distribution of its assets or evidences of indebtedness to
the holders of its Capital Shares as a dividend in liquidation or by way of
return of capital or other than as a dividend payable out of earnings or
surplus legally available for the payment of dividends under applicable law
or any distribution to such holders made in respect of the sale of all or
substantially all of the Corporation's assets (other than under the
circumstances provided for in the foregoing Sections 6.1(a) through
6.1(e)); or
(g) takes any action affecting the number of Outstanding Capital
Shares, other than an action described in any of the foregoing Sections
6.1(a) through 6.1(f) hereof, inclusive, which in the opinion of the
Corporation's Board of Directors, determined in good faith, would have a
material adverse effect upon the rights of the Holder at the time of a
conversion of the Preferred Stock.
SECTION 6.2 Exercise of Conversion Privilege.
(a) Conversion of the Series B Preferred Stock may be exercised, in
whole or in part, by the Holder by telecopying an executed and completed
notice of conversion in the form annexed hereto as Annex I (the "Conversion
Notice") to the Corporation. Each date on which a Conversion Notice is
telecopied to and received by the Corporation in accordance with the
provisions of this Section 6.2 shall constitute a Conversion Date. The
Corporation shall convert the Series B Preferred Stock and issue the Common
Stock Issued at Conversion effective as of the Conversion Date. The
Conversion Notice also shall state the name or names (with addresses) of
the persons who are to become the holders of the Common Stock issued at
Conversion in connection with such conversion. The Holder shall deliver the
shares of Series B Preferred Stock to the Corporation by express courier
within 30 days following the date on which the telecopied Conversion Notice
has been transmitted to the Corporation. Upon surrender for conversion, the
Series B Preferred Stock shall be accompanied by a proper assignment
thereof to the Corporation or be endorsed in blank. As promptly as
practicable after the receipt of the Conversion Notice as aforesaid, but in
any event not more than five Business Days after the Corporation's receipt
of such Conversion Notice, the Corporation shall (i) issue the Common Stock
issued at Conversion in accordance with the provisions of this Article 6,
and (ii) cause to be mailed for delivery by overnight courier to the Holder
(X) a certificate or certificate(s) representing the number of Common
Shares to which the Holder is entitled by virtue of such conversion, (Y)
cash, as provided in Section 6.3, in respect of any fraction of a Share
issuable upon such conversion and (Z) cash or shares in the amount of
accrued and unpaid related dividends as of the Conversion Date. Such
conversion shall be deemed to have been effected at the time at which the
Conversion Notice indicates so long as the Series B Preferred Stock shall
have been surrendered as aforesaid at such time, and at such time the
rights of the Holder of the Series B Preferred Stock, as such, shall cease
and the Person and Persons in whose name or names the Common Stock Issued
at Conversion shall be issuable shall be deemed to have become the holder
or holders of record of the Common Shares represented thereby. The
Conversion Notice shall constitute a contract between the Holder and the
Corporation, whereby the Holder shall be deemed to subscribe for the number
of Common Shares which it will be entitled to receive upon such conversion
and, in payment and satisfaction of such subscription (and for any cash
adjustment to which it is entitled pursuant to Section 6.4), to surrender
the
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Series B Preferred Stock and to release the Corporation from all liability
thereon. No cash payment aggregating less than $1.00 shall be required to be
given unless specifically requested by the Holder.
(b) Subject to Sections 6.1(a) and (b) if, at any time (i) the
Corporation challenges, disputes or denies the right of the Holder hereof to
effect the conversion of the Preferred Stock into Common Shares or otherwise
dishonors or rejects any Conversion Notice delivered in accordance with this
Section 6.2 or (ii) any third party who is not and has never been an Affiliate
of the Holder commences any lawsuit or proceeding or otherwise asserts any claim
before any court or public or governmental authority which seeks to challenge,
deny, enjoin, limit, modify, delay or dispute the right of the Holder hereof to
effect the conversion of the Preferred Stock into Common Shares, then the Holder
shall have the right, by written notice to the Corporation, to require the
Corporation to promptly redeem the Series B Preferred Stock for cash at a
redemption price equal to one hundred twenty percent (120%) of the Stated Value
thereof together with all accrued and unpaid dividends thereon (the "Mandatory
Purchase Amount"). Under any of the circumstances set forth above, the
Corporation shall be responsible for the payment of all reasonable costs and
expenses of the Holder, including reasonable legal fees and expenses, as and
when incurred in disputing any such action or pursuing its rights hereunder (in
addition to any other rights of the Holder).
SECTION 6.3 Fractional Shares. No fractional Common Shares or scrip
representing fractional Common Shares shall be issued upon conversion of the
Series B Preferred Stock. Instead of any fractional Common Shares which
otherwise would be issuable upon conversion of the Series B Preferred Stock, the
Corporation shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction. No cash payment of less than $1.00 shall be required
to be given unless specifically requested by the Holder.
SECTION 6.4 Reclassification, Consolidation, Merger or Mandatory Share
Exchange. At any time while the Series B Preferred Stock remains outstanding and
any shares thereof have not been converted, in case of any reclassification or
change of Outstanding Common Shares issuable upon conversion of the Series B
Preferred Stock (other than a change in par value, or from par value to no par
value per share, or from no par value per share to par value or as a result of a
subdivision or combination of outstanding securities issuable upon conversion of
the Series B Preferred Stock) or in case of any consolidation, merger or
mandatory share exchange of the Corporation with or into another corporation
(other than a merger or mandatory share exchange with another corporation in
which the Corporation is a continuing corporation and which does not result in
any reclassification or change, other than a change in par value, or from par
value to no par value per share, or from no par value per share to par value, or
as a result of a subdivision or combination of Outstanding Common Shares upon
conversion of the Series B Preferred Stock), or in the case of any sale or
transfer to another corporation of the property of the Corporation as an
entirety or substantially as an entirety, the Corporation, or such successor,
resulting or purchasing corporation, as the case may be, shall, without payment
of any additional consideration therefor, execute a new Series B Preferred Stock
providing that the Holder shall have the right to convert such new Series B
Preferred Stock (upon terms and conditions not less favorable to the Holder than
those in effect pursuant to the Series B Preferred Stock) and to receive upon
such exercise, in lieu of each Common Share theretofore issuable upon conversion
of the Series B Preferred Stock, the kind and amount of shares of stock, other
securities, money or property receivable upon such reclassification, change,
consolidation, merger, mandatory share exchange, sale or transfer by the holder
of one Common Share issuable upon conversion of the Series B Preferred Stock had
the
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Series B Preferred Stock been converted immediately prior to such
reclassification, change, consolidation, merger, mandatory share exchange or
sale or transfer. The provisions of this Section 6.4 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, mandatory share
exchanges and sales and transfers.
SECTION 6.5 Adjustments to Conversion Ratio. For so long as any shares of
the Series B Preferred Stock are outstanding, if the Corporation (i) issues and
sells pursuant to an exemption from registration under the Securities Act (A)
Common Shares at a purchase price on the date of issuance thereof that is lower
than the Conversion Price, (B) warrants or options with an exercise price
representing a percentage of the Current Market Price with an exercise price on
the date of issuance of the warrants or options that is lower than the agreed
upon exercise price for the Holder, except for employee stock option agreements
or stock incentive agreements of the Corporation, or (C) convertible,
exchangeable or exercisable securities with a right to exchange at lower than
the Current Market Price on the date of issuance or conversion, as applicable,
of such convertible, exchangeable or exercisable securities, except for stock
option agreements or stock incentive agreements; and (ii) grants the right to
the purchaser(s) thereof to demand that the Corporation register under the
Securities Act such Common Shares issued or the Common Shares for which such
warrants or options may be exercised or such convertible, exchangeable or
exercisable securities may be converted, exercised or exchanged, then the
Conversion Ratio shall be reduced to equal the lowest of any such lower rates.
SECTION 6.6 Optional Redemption Under Certain Circumstances. At anytime
after the date of issuance of the Series B Preferred Stock until the Mandatory
Conversion Date (as defined below), the Corporation, upon notice delivered to
the Holder as provided in Section 6.7, may redeem in whole or in part from time
to time, in cash, the Series B Preferred Stock (but only with respect to such
shares as to which the Holder has not theretofore furnished a Conversion Notice
prior to receiving the Corporation's notice of redemption in compliance with
Section 6.2), at one hundred twenty-five percent (125%) of the Stated Value
thereof (the "Optional Redemption Price"), together with all accrued and unpaid
dividends thereon to the date of redemption (the "Redemption Date"). Except as
set forth in this Section 6.6, the Corporation shall not have the right to
prepay or redeem the Series B Preferred Stock.
SECTION 6.7 Notice of Redemption. Notice of redemption pursuant to
Section 6.6 shall be provided by the Corporation to the Holder in writing (by
registered mail or overnight courier at the Holder's last address appearing in
the Corporation's security registry) not less than ten (10) nor more than
fifteen (15) days prior to the Redemption Date, which notice shall specify the
Redemption Date and refer to Section 6.6 (including, a statement of the Market
Price per Common Share) and this Section 6.7.
SECTION 6.8 Surrender of Preferred Stock. Upon any redemption of the
Series B Preferred Stock pursuant to Sections 6.6 or 6.7, the Holder shall
either deliver the Series B Preferred Stock by hand to the Corporation at its
principal executive offices or surrender the same to the Corporation at such
address by express courier. Payment of the Optional Redemption Price specified
in Section 6.6 shall be made by the Corporation to the Holder against receipt of
the Series B Preferred Stock (as provided in this Section 6.8) by wire transfer
of immediately available funds to such account(s) as the Holder shall specify to
the Corporation. If payment of such redemption price is not made in full by the
Redemption Date, then the Holder shall again have the right to convert the
Series B Preferred Stock as provided in Article 6 hereof.
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SECTION 6.9 Mandatory Conversion. On the third anniversary of the filing
of this Certificate of Designation (the "Mandatory Conversion Date"), the
Corporation shall convert all Series B Preferred Stock outstanding at the
Conversion Price. Notwithstanding the previous sentence, in no event shall the
Corporation convert that portion of the Series B Preferred Stock to the extent
that the issuance of Common Shares upon conversion of such Series B Preferred
Stock, when combined with shares of Common Shares received upon other
conversions of Series B Preferred Stock by such Holder and any other holders of
Series B Preferred Stock and Warrants, together with all other shares of Common
Stock beneficially owned by such Holder (or any affiliate thereof) would exceed
19.99% of the Common Stock outstanding on the Mandatory Conversion Date, unless
the Corporation's shareholders approve the issuance of an amount of the
Corporation's Common Stock in excess of the 19.99% threshold. Within ten (10)
Business Days after the Mandatory Conversion Date, the Corporation may either
(i) redeem those outstanding shares of Series B Preferred Stock in excess of the
19.99% threshold at one hundred and twenty-five percent (125%) of the Stated
Value thereof, together with all accrued and unpaid dividends thereon, in cash,
to the date of redemption or (ii) extend the Mandatory Conversion Date for a
period of one year.
ARTICLE 7
VOTING RIGHTS
The holders of the Series B Preferred Stock have no voting power, except as
otherwise provided by the General Corporation Law of the State of Delaware
("DGCL"), in this Article 7, and in Article 8 below.
Notwithstanding the above, the Corporation shall provide each holder of
Series B Preferred Stock with prior notification of any meeting of the
shareholders (and copies of proxy materials and other information sent to
shareholders). In the event of any taking by the Corporation of a record of its
shareholders for the purpose of determining shareholders who are entitled to
receive payment of any dividend or other distribution, any right to subscribe
for, purchase or otherwise acquire (including by way of merger, consolidation or
recapitalization) any share of any class or any other securities or property, or
to receive any other right, or for the purpose of determining shareholders who
are entitled to vote in connection with any proposed liquidation, dissolution or
winding up of the Corporation, the Corporation shall mail a notice to each
holder, at least thirty (30) days prior to the consummation of the transaction
or event, whichever is earlier), of the date on which any such acting is to be
taken for the purpose of such dividend, distribution, right or other event, and
a brief statement regarding the amount and character of such dividend,
distribution, right or other event to the extent known at such time.
To the extent that under the DGCL the vote of the holders of the Series B
Preferred Stock, voting separately as a class or series as applicable, is
required to authorize a given action of the Corporation, the affirmative vote or
consent of the holders of at least a majority of the shares of the Series B
Preferred Stock represented at a duly held meeting at which a quorum is present
or by written consent of a majority of the shares of Series B Preferred Stock
(except as otherwise may be required under the DGCL) shall constitute the
approval of such action by the class. To the extent that under the DGCL holders
of the Series B Preferred Stock are entitled to vote on a matter with holders of
Common Stock, voting together as one class, each share of Series B Preferred
Stock shall be entitled to a number of votes equal to the number of shares of
Common Stock into which it is then convertible using the record date for the
taking of such vote of shareholders as the date as of which the Conversion Price
is calculated. Holders of the Series B
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Preferred Stock shall be entitled to notice of all shareholder meetings or
written consents (and copies of proxy materials and other information sent to
shareholders) with respect to which they would be entitled tonight, which notice
would be provided pursuant to the Corporation's bylaws and the DGCL.
ARTICLE 8
PROTECTIVE PROVISIONS
So long as shares of Series B Preferred Stock are outstanding, the
Corporation shall not, without first obtaining the approval (by vote or written
consent, as provided by the DGCL) of the holders of at least a majority of the
then outstanding shares of Series B Preferred Stock:
(a) alter or change the rights, preferences or privileges of the
Series B Preferred Stock;
(b) create any new class or series of capital stock having a
preference over the Series B Preferred Stock as to distribution of assets
upon liquidation, dissolution or winding up of the Corporation ("Senior
Securities") or alter or change the rights, preferences or privileges of
any Senior Securities so as to affect adversely the Series B Preferred
Stock;
(c) increase the authorized number of shares of Series B Preferred
Stock; or
(d) do any act or thing not authorized or contemplated by this
Certificate of Designation which would result in taxation of the holders of
shares of the Series B Preferred Stock under Section 305 of the Internal
Revenue Code of 1986, as amended (or any comparable provision of the
Internal Revenue Code as hereafter from time to time amended).
In the event holders of at least a majority of the then outstanding shares
of Series B Preferred Stock agree to allow the Corporation to alter or change
the rights, preferences or privileges of the shares of Series B Preferred Stock,
pursuant to subsection (a) above, so as to affect the Series B Preferred Stock,
then the Corporation will deliver notice of such approved change to the holders
of the Series B Preferred Stock that did not agree to such alteration or change
(the "Dissenting Holders") and Dissenting Holders shall have the right for a
period of thirty (30) days to convert pursuant to the terms of this Certificate
of Designation as they exist prior to such alteration or change or continue to
hold their shares of Series B Preferred Stock.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Loss, Theft, Destruction of Preferred Stock. Upon receipt of
evidence satisfactory to the Corporation of the loss, theft, destruction or
mutilation of shares of Series B Preferred Stock and, in the case of any such
loss, theft or destruction, upon receipt of indemnity or security reasonably
satisfactory to the Corporation, or, in the case of any such mutilation, upon
surrender and cancellation of the Series B Preferred Stock, the Corporation
shall make, issue and deliver, in lieu of such lost, stolen, destroyed or
mutilated shares of Series B Preferred Stock, new shares of Series B Preferred
Stock of like tenor. The Series B Preferred Stock shall be held and
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owned upon the express condition that the provisions of this Section 9.1 are
exclusive with respect to the replacement of mutilated, destroyed, lost or
stolen shares of Series B Preferred Stock and shall preclude any and all other
rights and remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement of negotiable
instruments or other securities without the surrender thereof.
SECTION 9.2 Who Deemed Absolute Owner. The Corporation may deem the
Person in whose name the Series B Preferred Stock shall be registered upon the
registry books of the Corporation to be, and may treat it as, the absolute owner
of the Series B Preferred Stock for the purpose of receiving payment of
dividends on the Series B Preferred Stock, for the conversion of the Series B
Preferred Stock and for all other purposes, and the Corporation shall not be
affected by any notice to the contrary. All such payments and such conversion
shall be valid and effectual to satisfy and discharge the liability upon the
Series B Preferred Stock to the extent of the sum or sums so paid or the
conversion so made.
SECTION 9.3 Notice of Certain Events. In the case of the occurrence of
any event described in Sections 6.1, 6.6 or 6.7 of this Certificate of
Designation, the Corporation shall cause to be mailed to the Holder of the
Series B Preferred Stock at its last address as it appears in the Corporation's
security registry, at least twenty (20) days prior to the applicable record,
effective or expiration date hereinafter specified (or, if such twenty (20) days
notice is not possible, at the earliest possible date prior to any such record,
effective or expiration date), a notice stating (x) the date on which a record
is to be taken for the purpose of such dividend, distribution, issuance or
granting of rights, options or warrants, or if a record is not to be taken, the
date as of which the holders of record of Series B Preferred Stock to be
entitled to such dividend, distribution, issuance or granting of rights, options
or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective, and the date as of which it is expected that
holders of record of Series B Preferred Stock will be entitled to exchange their
shares for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale transfer, dissolution, liquidation
or winding-up.
SECTION 9.4 Register. The Corporation shall keep at its principal office a
register in which the Corporation shall provide for the registration of the
Series B Preferred Stock. Upon any transfer of the Series B Preferred Stock in
accordance with the provisions hereof, the Corporation shall register such
transfer on the Series B Preferred Stock register.
The Corporation may deem the person in whose name the Series B Preferred
Stock shall be registered upon the registry books of the Corporation to be, and
may treat it as, the absolute owner of the Series B Preferred Stock for the
purpose of receiving payment of dividends on the Series B Preferred Stock, for
the conversion of the Series B Preferred Stock and for all other purposes, and
the Corporation shall not be affected by any notice to the contrary. All such
payments and such conversions shall be valid and effective to satisfy and
discharge the liability upon the Series B Preferred Stock to the extent of the
sum or sums so paid or the conversion or conversions so made.
SECTION 9.5 Withholding. To the extent required by applicable law, the
Corporation may withhold amounts for or on account of any taxes imposed or
levied by or on behalf of any taxing authority in the United States having
jurisdiction over the Corporation from any payments made pursuant to the Series
B Preferred Stock.
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SECTION 9.6 Headings. The headings of the Articles and Sections of this
Certificate of Designation are inserted for convenience only and do not
constitute a part of this Certificate of Designation.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be signed by its duly authorized officers on this 30th day of
December 1999.
VIISAGE TECHNOLOGY, INC.
By: /s/ Charles J. Johnson
----------------------
Charles J. Johnson
Secretary
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ANNEX I
FORM OF CONVERSION NOTICE
TO:
The undersigned owner of this Series B 7% Convertible Preferred Stock
(the "Series B Preferred Stock") issued by Viisage Technology, Inc. (the
"Corporation") hereby irrevocably exercises its option to convert shares of the
Series B Preferred Stock into _______ shares of the common stock, $.001 par
value, of the Corporation ("Common Stock"), in accordance with the terms of the
Certificate of Designation. The undersigned hereby instructs the Corporation to
convert the number of shares of the Series B Preferred Stock specified above
into Shares of Common Stock Issued at Conversion in accordance with the
provisions of Article 6 of the Certificate of Designation. The undersigned
directs that the Common Stock issuable and certificates therefor deliverable
upon conversion, the Series B Preferred Stock recertificated, if any, not being
surrendered for conversion hereby, together with any check in payment for
fractional Common Stock, be issued in the name of and delivered to the
undersigned unless a different name has been indicated below. All capitalized
terms used and not defined herein have the respective meanings assigned to them
in the Certificate of Designation.
Dated: __________________________________
Signature
Fill in for registration of Series B Preferred Stock:
Please print name and address (including zip code number) :
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