Exhibit 4.02
ESSENTIAL INNOVATIONS TECHNOLOGY CORP.
DESIGNATION OF RIGHTS, PRIVILEGES AND PREFERENCES OF
SERIES A PREFERRED STOCK
Pursuant to the provisions of Nevada Revised Statutes, Section 78.195,
et seq, the undersigned corporation, Essential Innovations Technology Corp (the
"Corporation"), hereby adopts the following Designation of Rights, Privileges
and Preferences of Series A Preferred Stock (the "Designation"):
FIRST: The name of the Corporation is Essential Innovations Technology
Corp.
SECOND: The following resolution establishing a series of preferred
stock designated as the "Series A Preferred Stock" consisting of 400,000 shares
in connection with purchase of Media Credits, as fully described in that certain
Media Transfer and Stock Purchase Agreement dated February 14, 2003 (the "Media
Credit Agreement"), was duly adopted by the board of directors of the
Corporation on _________ __, 2003, in accordance with the articles of
incorporation of the Corporation and the corporation laws of the state of
Nevada:
RESOLVED, there is hereby created a series of preferred stock of the
Corporation to be designated as the "Series A Preferred Stock"
consisting of an aggregate dollar value of one million five hundred
thousand dollars ($1,500,000) or four hundred thousand (400,000) shares
using the Series A Purchase Price defined below. The preferences,
limitations and relative rights of the Series A Preferred Stock are as
set forth below:
1. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, either voluntary or involuntary, subject to the
rights of other preferred stock, if any, the holders of the Series A
Preferred Stock shall be entitled to receive, prior and in preference
to any distribution of any of the assets of the Corporation to the
holders of Common Stock by reason of their ownership thereof, an amount
per share equal to $3.75, which is 75% of the stated price of shares
registered pursuant to a Securities Act of 1933 Registration Statement
on Form SB-2 to be filed ("Series A Purchase Price"). If such SB-2
share price is changed for whatever reason, so that 75% of the offering
price on Form SB-2 no longer equals $3.75, the liquidation value of the
Series A Preferred Stock shall be adjusted to remain at a stated value
of 75% of the common stock registered. If upon the occurrence of such
liquidation, dissolution or winding up event, the assets and funds thus
distributed among the holders of the Series A Preferred Stock shall be
insufficient to permit the payment to such holders of the full
aforesaid preferential amounts, then, subject to the rights of other
preferred stock, if any, the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably among
the holders of the Series A Preferred Stock in proportion to the
preferential amount each such holder is otherwise entitled to receive.
(b) Upon the completion of the distribution required by
subsection 1(a) above and any other distribution that may be required
with respect to other preferred stock, if any, the remaining assets of
the Corporation available for distribution to stockholders shall be
distributed as follows: among the holders of the Series A Preferred
Stock and the Common Stock pro rata based on the number of shares of
Common Stock held by each (assuming conversion of all such Series A
Preferred Stock).
(c) For purposes of this subsection (c), a liquidation,
dissolution or winding up of the Corporation shall be deemed to be
occasioned by or to include, (i) the acquisition of the Corporation by
another entity by means of any transaction or series of related
transactions (including any reorganization, merger or consolidation,
but excluding any merger effected exclusively for the purpose of
changing the domicile of the Corporation); or (ii) a sale of all or
substantially all of the assets of the Corporation, unless the
Corporation's stockholders of record as constituted immediately prior
to such acquisition or sale will, immediately after such acquisition or
sale (by virtue of securities issued as consideration for the
Corporation's acquisition or sale or otherwise) hold at least 50% of
the voting power of the surviving or acquiring entity.
(d) In any of the events specified in (c) above, if the
consideration received by the Corporation is other than cash, its value
will be deemed its fair market value. Any securities shall be valued as
follows:
(i) Securities not subject to investment letter or
other similar restrictions on free marketability:
(1) If traded on a securities exchange or
the Nasdaq National Market System, the value shall be
deemed to be the average of the closing prices of the
securities on such exchange over the 30-day period
ending three days prior to the closing;
(2) If actively traded over-the-counter, the
value shall be deemed to be the average of the
closing bid or sale prices (whichever is applicable)
over the 30-day period ending three days prior to the
closing; and
(3) If there is no active public market, the
value shall be the fair market value thereof, as
mutually determined by the Corporation and the
holders of at least a majority of the voting power of
all then outstanding shares of Preferred Stock.
(ii) The method of valuation of securities subject to
investment letter or other restrictions on free marketability
(other than restrictions arising solely by virtue of a
stockholder's status as an affiliate or former affiliate)
shall be to make an appropriate discount from the market value
determined as above in (i)(1), (2) or (3) to reflect the
approximate fair market value thereof, as mutually determined
by the Corporation and the holders of at least a majority of
the voting power of all then-outstanding shares of Preferred
Stock.
(iii) In the event the requirements of subsection
1(d) are not complied with, the Corporation shall forthwith
either:
(1) cause such closing to be postponed until
such time as the requirements of this section 1 have
been complied with; or
(2) cancel such transaction, in which event
the rights, preferences and privileges of the holders
of the Series A Preferred Stock shall revert to and
be the same as such rights, preferences and
privileges existing immediately prior to the date of
the first notice referred to in subsection 1(d)(iv)
hereof.
(iv) The Corporation shall give each holder of record
of Series A Preferred Stock written notice of such impending
transaction not later than 20 days prior to the stockholders'
meeting called to approve such transaction, or 20 days prior
to the closing of such transaction, whichever is earlier, and
shall also notify such holders in writing of the final
approval of such transaction. The first of such notices shall
describe the material terms and conditions of the impending
transaction and the provisions of this subsection 1(d)(iv),
and the Corporation shall thereafter give such holders prompt
notice of any material changes. The transaction shall in no
event take place sooner than 20 days after the Corporation has
given the first notice provided for herein or sooner than 10
days after the Corporation has given notice of any material
changes provided for herein; provided, however, that such
periods may be shortened upon the written consent of the
holders of Preferred Stock that are entitled to such notice
rights or similar notice rights and that represent at least a
majority of the voting power of all then-outstanding shares of
such Preferred Stock.
2. Redemption.
(a) Corporation Initiated Redemption. The Corporation may
redeem all or a portion of the then-outstanding shares of Series A
Preferred Stock at one cent ($0.01) per share (the "Redemption Price"),
if any of the following events occur:
(i) The media represented by the Media Credits
conveyed by the Media Provider (as defined in the Media Credit
Agreement) to the Corporation are not honored by the
applicable Media Company (as defined in the Media Credit
Agreement);
(ii) A Media Company fails to provide the media after
an order for such media has been placed; or
(iii) Any Media Credits remain unused after the
expiration of the term of the Media Credits conveyed by the
Media Provider to the Corporation.
The number of shares of Series A Preferred Stock to be redeemed shall
be calculated by determining the percentage of the Media Credits that
are not honored, not provided, or not used as described in subsections
(i) through (iii) above and then determining an equivalent percentage
of the 400,000 shares of Series A Preferred Stock.
(b) Notice for Corporation Initiated Redemption. With respect
to a redemption of Series A Preferred Stock initiated by the
Corporation, at least five days' prior written notice by certified or
registered mail, postage prepaid, shall be given to the holders of
record of the Series A Preferred Stock to be redeemed, such notice to
be addressed to each such stockholder at the address of such holder
given to the Corporation for the purpose of notice, or if no such
address appears or is so given, at the place where the principal office
of the Corporation is located. Such notice shall state (i) the event
causing the redemption, (ii) the date on which such shares shall be
redeemed (the "Corporation Redemption Date"), and (iii) the date of
termination of the right to convert (which date shall not be earlier
than five days and not later than 60 days after the above written
notice by mail has been given) and shall call upon each such holder to
surrender to the Corporation on said date at the place designated in
the notice such holder's certificate or certificates representing the
shares to be redeemed. On or after the Corporation Redemption Date
stated in such notice, the holder of each share of Series A Preferred
Stock called for redemption shall surrender the certificate evidencing
such shares to the Corporation at the place designated in such notice
and shall thereupon be entitled to receive payment of the Redemption
Price for the shares of Series A Preferred Stock surrendered. If less
than all the shares represented by any such surrendered certificate are
redeemed, a new certificate shall be issued representing the unredeemed
shares. If such notice of redemption shall have been duly given, and if
on the Corporation Redemption Date funds necessary for the redemption
shall be available therefor, then, as to any certificates evidencing
any Series A Preferred Stock so called for redemption and not
surrendered, all rights of the holders of such shares so called for
redemption and not surrendered shall cease with respect to such shares,
except only the right of the holders to receive the Redemption Price
for such shares of Series A Preferred Stock that they hold, without
interest, upon surrender of their certificates therefor.
3. Conversion. The holders of the Series A Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Automatic Conversion. Each share of Series A Preferred
Stock shall automatically be converted into one share of Common Stock
upon the later of either 18 months following the Issuance Date, or at
the time in effect for such share immediately upon (except as provided
below in subsection 3(b)) the Corporation's sale of its Common Stock in
a public offering pursuant to a registration statement under the
Securities Act of 1933, as amended, and that results in aggregate net
cash proceeds to the Corporation of at least $10,000,000 (net of
underwriting discounts and commissions).
(b) Mechanics of Conversion. Before any holder of Series A
Preferred Stock shall be entitled to convert the same into shares of
Common Stock, the holder shall receive a written notice by the
Corporation instructing the holder to surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation
or of any transfer agent for the Series A Preferred Stock, and shall
state therein the name or names in which the certificate or
certificates for shares of Common Stock are to be issued. The
Corporation shall, within three trading days thereafter, issue and
deliver at such office to such holder of Series A Preferred Stock, or
to the nominee or nominees of such holder, a certificate or
certificates for the number of shares of Common Stock to which such
holder shall be entitled as aforesaid. Such conversion shall be deemed
to have been made immediately prior to the close of business on the
date of such surrender of the shares of Series A Preferred Stock to be
converted, and the person or persons entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock
as of such date.
(c) Reorganization or Merger. In case of any reorganization or
any reclassification of the capital stock of the Corporation, or any
consolidation or merger of the Corporation with or into any other
corporation or corporations, or a sale or transfer of all or
substantially all of the assets of the Corporation to any other person,
then, as part of such reorganization, consolidation, merger or
transfer, if the holders of shares of Common Stock receive any publicly
traded securities as part or all of the consideration for such
reorganization, consolidation, merger or sale, then it will be a
condition precedent of any such event or transaction that provision
will be made such that each Preferred Share will thereafter be
converted into such new securities at a conversion price and pricing
formula that places the holders of Preferred Stock in an economically
equivalent position as such holders would have been if not for such
event. In addition to the foregoing, if the holders of shares of Common
Stock receive any nonpublicly traded securities or other property or
cash as part or all of the consideration for such reorganization,
consolidation, merger or sale, then the Preferred Stock will be deemed
to have converted immediately prior to the record date for such
distribution and will be entitled to receive such distribution as if
such Preferred Stock had been converted prior to the record date.
(d) No Impairment. The Corporation will not, by amendment of
its articles of incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation, but
will at all times in good faith assist in the carrying out of all the
provisions of these designations and in the taking of all such action
as may be necessary or appropriate in order to protect the Conversion
Rights of the holders of Preferred Stock against impairment.
(e) No Fractional Shares and Certificate as to Adjustments. No
fractional shares shall be issued upon the conversion of any share or
shares of the Series A Preferred Stock, and the number of shares of
Common Stock to be issued shall, at the Corporation's option, be
rounded to the nearest whole share (with one-half being rounded upward)
or pay the holder otherwise entitled to such a fraction a sum in cash
equal to the fair market value of such fraction on the Conversion Date
(as determined in good faith by the board of directors of the
Corporation).
(f) Notices of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for
the purpose of determining the holders thereof that are entitled to
receive any dividend (other than a cash dividend) or other
distribution, any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property,
or to receive any other right, the Corporation shall mail to each
holder of Series A Preferred Stock, at least 20 days prior to the date
specified therein, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or
right.
(g) Reservation of Stock Issuable upon Conversion. The
Corporation shall, at all times, reserve and keep available out of its
authorized but unissued shares of Common Stock 400,000 shares, solely
for the purpose of effecting the conversion of the shares of the Series
A Preferred Stock. If at any time the number of authorized but unissued
shares of Common Stock shall not be sufficient to effect the conversion
of all then-outstanding shares of Series A Preferred Stock, in addition
to such other remedies as shall be available to the holder of such
Preferred Stock, the Corporation will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares
as shall be sufficient for such purposes, including, without
limitation, engaging in best efforts to obtain the requisite
stockholder approval of any necessary amendment to the Corporation's
articles of incorporation.
(h) Notices. Any notice required by the provisions of these
designations to be given to the holders of shares of Series A Preferred
Stock shall be deemed given if deposited in the United States mail,
postage prepaid, and addressed to each holder of record at the holder's
address appearing on the books of the Corporation.
4. Voting Rights. The holder of each share of Series A Preferred Stock
shall have no right to vote, except as may be required by Nevada law, on matters
submitted to the holders of the Corporation's Common Stock. Subject to the
rights of any series of Preferred Stock that may from time to time come into
existence, so long as any shares of Series A Preferred Stock are outstanding,
the Corporation shall not without first obtaining the approval (by vote or
written consent, as provided by law) of the holders of at least 50% of the
then-outstanding shares of Series A Preferred Stock, voting together as a single
voting group, alter or change the rights, preferences or privileges of the
shares of Series A Preferred Stock so as to adversely affect the shares of such
series, provided that a transaction resulting in a change of control of the
Corporation, in and of itself, shall not be deemed to adversely affect such
shares.
5. Status of Redeemed or Converted Stock. In the event any shares of
Series A Preferred Stock shall be redeemed or converted pursuant to these
designations, the shares so redeemed or converted shall be canceled and shall
not be issuable by the Corporation. The articles of incorporation of the
Corporation shall be appropriately amended to effect the corresponding reduction
in the Corporation's authorized capital stock.
The foregoing Designation of Rights, Privileges and Preferences of
Series A Preferred Stock of the Corporation has been executed this _____ day of
_____, 2003.
ESSENTIAL INNOVATIONS TECHNOLOGY CORP.
By
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Jason McDiarmid, President