EXHIBIT 3.1
ARTICLES OF INCORPORATION, AS AMENDED
ONLINE SYSTEM SERVICES, INC.
ARTICLES OF INCORPORATION
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OF
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ONLINE SYSTEM SERVICES, INC.
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The undersigned incorporator, being a natural person of the age of eighteen
years or more hereby establishes a corporation pursuant to the statutes of the
State of Colorado and adopts the following Articles of Incorporation:
ARTICLE I
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NAME
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The name of the corporation shall be Online System Services, Inc.
ARTICLE II
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PERIOD OF DURATION
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This Corporation shall exist in perpetuity, from and after the date of
filing these Articles of Incorporation with the Secretary of State of the State
of Colorado unless dissolved according to law.
ARTICLE III
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PURPOSES
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The purpose for which this corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the laws of
the State of Colorado.
In furtherance of the foregoing purposes, the Corporation shall have and
may exercise all of the rights, powers and privileges now or hereafter conferred
upon corporations organized under the laws of the State of Colorado. In
addition, it may do everything necessary, suitable or proper for the
accomplishment of any of its corporate purposes.
ARTICLE IV
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CAPITAL
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1. Authorized Shares. The aggregate number of shares which this
corporation shall have authority to issue is 10,000 shares, all of one class,
Common Stock, having no par value.
2. Restrictions. The Corporation shall have the right to impose
restrictions on the transfer of shares of the Corporation.
3. Dividends. The Board of Directors may from time to time distribute to
shareholders in partial liquidation, or out of stated capital or capital surplus
of the Corporation, a portion of its assets, in cash or property, subject to the
limitations contained within the statutes of the State of Colorado.
4. Distribution in Liquidation. Upon any liquidation, dissolution or
winding up of the Corporation, and after paying or adequately providing for the
payment of all its obligations, the remainder of the assets of the Corporation
shall be distributed, either in cash or in kind, pro rata to the holders of the
Common Stock.
ARTICLE V
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VOTING BY SHAREHOLDERS
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1. Voting Rights; No Cumulative Voting. Each outstanding share of Common
Stock is entitled to one vote and each fractional share of Common Stock is
entitled to a corresponding fractional vote on each matter submitted to a vote
of shareholders. Cumulative voting shall not be allowed in the election of
directors of the Corporation and every shareholder entitled to vote at such
election shall have the right to vote the number of shares owned by him for as
many persons as there are directors to be elected, and for whose election he has
a right to vote.
2. Denial of Preemptive Rights. No shareholder of the Corporation,
whether now or hereafter authorized, shall have any preemptive or similar right
to acquire any additional unissued or treasury shares of stock or securities of
any class or rights, warrants or options to purchase stock or scrip or
securities in any kind, including shares or securities convertible into shares
or carrying stock purchase warrants or privileges.
3. Majority Vote. A quorum for the purpose of stockholder meetings will
consist of a majority of the shares issued and outstanding and entitled to vote
at the meeting.
When a quorum is present, and when the statute requires a vote of two-
thirds of the shares entitled to vote to take action, the affirmative vote of a
majority of the shares issued and outstanding and entitled to vote on the
subject matter shall be the act of the stockholders.
ARTICLE VI
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BOARD OF DIRECTORS
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The initial Board of Directors shall consist of three (3) directors, and
the names and addresses of the persons who shall serve as directors until the
first annual meeting of the shareholders or until their successors are elected
and shall qualify are:
NAME MAILING ADDRESS
R. Steven Adams 1800 Glenarm Place, Suite 700
Denver, Colorado 80202
Craig A. Snapp 9063 S. Bermuda Run Circle
Highlands Ranch, CO 80126
Thomas D. Smart 1700 Broadway, Suite 1800
Denver, CO 80290
The number of directors shall be prescribed by the Bylaws except that there
need be only as many directors as there are shareholders in the event that the
outstanding shares are held of record by fewer than two persons.
ARTICLE VII
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RIGHT OF DIRECTORS TO CONTRACT WITH CORPORATION
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The following provisions are inserted for the management of the business
and for the conduct of the affairs of the Corporation, and the same are in
furtherance of and not in limitation of the powers conferred by law.
1. No contract or other transaction between this Corporation and one
or more of its directors or any other corporation, firm, association, or entity
in which one or more of its directors are directors or officers or are
financially interested shall be either void or voidable solely because of such
relationship or interest or solely because such directors are present at the
meeting of the Board of Directors or a committee thereof which authorizes,
approves, or ratifies such contract or transaction or solely because their votes
are counted for such purpose if:
(a) The material facts as to such relationship or interest and as
to the contract or transaction are disclosed or are otherwise known to the
Board of Directors or committee and the board or committee authorizes,
approves, or ratifies such contract or transaction by the affirmative vote
of a majority of the disinterested directors, even though the directors are
less than a quorum; or
(b) The material facts of such relationship or interest and as to
the contract of transaction are disclosed or otherwise known to the
shareholders entitled to vote thereon and they authorize, approve, or
ratify such contract or transaction by vote or written consent; or
(c) The contract or transaction is fair and reasonable to the
Corporation.
2. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
ARTICLE VIII
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CORPORATE OPPORTUNITY
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The officers, directors and other members of management of this
Corporation shall be subject to the doctrine of "corporate opportunities" only
insofar as it applies to business opportunities in which this Corporation has
expressed an interest as determined from time to time by this Corporation's
Board of Directors as evidenced by resolutions appearing in the Corporation's
minutes. Once such areas of interest are delineated, all such business
opportunities within such areas of interest which come to the attention of the
officers, directors, and other members of management of this Corporation shall
be offered first to the Corporation. In the event the Corporation declines to
pursue any or all such business opportunities, the officers, directors and other
members of management of this Corporation shall be free to engage in such areas
of interest on their own and this doctrine shall not limit the right of any
officer, director or other member of management of this Corporation (other than
an officer, director, or member of management) from any duties which he may have
to this Corporation.
ARTICLE IX
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Indemnification of Officers,
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Directors and Others
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1. To the full extent permitted by the Colorado Corporation Code, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a Director, Officer, employee, fiduciary
or agent of the Corporation, or is or was serving at the request of the
Corporation as a Director, Officer, employee, fiduciary or agent of another
corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he conducted himself in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
2. The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a Director, Officer, employee,
fiduciary or agent of the Corporation, or is or was serving at the request of
the Corporation as a Director, Officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
3. To the extent that a Director, Officer, employee, fiduciary or
agent of the Corporation has been wholly successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in paragraphs 1 and 2
of this Article, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
4. Any indemnification under paragraphs 1 and 2 of this Article
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the Director,
Officer, employee, fiduciary or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs 1 and 2.
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of Directors who were not parties to such action,
suit or pending, or (2) if such a quorum is not attainable, or, even if
obtainable a quorum of disinterested Directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
5. Expenses (including attorneys' fees) incurred in defending a civil
or criminal action, suit or pending may be paid by the Corporation in advance of
the final disposition of such
action, suit or proceeding as authorized in the manner provided in paragraph 4
of this Article upon receipt of an undertaking by or on behalf of the Director,
Officer, employee, fiduciary or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this section.
6. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a Director, Officer, employee,
fiduciary or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this section.
7. In addition to the foregoing, the Corporation shall have the power
to indemnify current or former directors, officers, employees and agents to the
fullest extent provided by the laws of the State of Colorado.
ARTICLE X
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DIRECTOR LIABILITY
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To the fullest extent permitted by the Colorado Corporation Code, as
the same exists or may hereafter be amended, a director of this Corporation
shall not be liable to the Corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director.
ARTICLE XI
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REGISTERED OFFICE AND REGISTERED AGENT
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The address of the initial registered office of the Corporation is
1800 Glenarm Place, Suite 700, Denver, Colorado 80202 and the name of the
initial registered agent at such address is R. Steven Adams. Either the
registered office or the registered agent may be changed in the manner permitted
by law.
ARTICLE XII
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INCORPORATOR
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The name and address of the incorporator is as follows:
NAME ADDRESS
Kim P. Castillo 1800 Glenarm Place, Suite 700
Denver, Colorado 80202
IN WITNESS WHEREOF, the above-named incorporator has signed these
Articles of Incorporation this 22nd day of March, 1994.
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/s/ Kim P. Castillo
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Kim P. Castillo
STATE OF COLORADO )
)ss.
COUNTY OF DENVER )
I, the undersigned, a Notary Public, hereby certify that on the 22nd
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day of March, 1994, personally appeared before me, Kim P. Castillo, who being by
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me first duly sworn, severally declared that she is the person who signed the
foregoing document as incorporator, and the statements therein contained are
true.
WITNESS my hand and official seal.
/s/ Colleen K. Overocker
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Notary Public
My Commission Expires: 05/17/1995
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ONLINE SYSTEM SERVICES, INC.
The undersigned, R. Steven Adams, President of Online System Services,
Inc., a Colorado corporation (the "Corporation"), DOES HEREBY CERTIFY that the
number of votes cast for the following amendment by each voting group entitled
to vote separately on the amendment was sufficient for approval by that group,
in that the sole shareholder of the Corporation approved and adopted the
amendment in all respects:
ARTICLE IV of the Articles of Incorporation of the Corporation is amended
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and replaced in its entirety to read as follows:
ARTICLE IV
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CAPITAL
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1. Authorized Shares. The aggregate number of shares that the
Corporation has authority to issue is 15,000,000. The shares are classified in
two classes, consisting of 10,000,000 shares of Common Stock , no par value, and
5,000,000 shares of Preferred Stock, with such par value as the Board of
Directors of the Corporation may designate. The Board of Directors of the
Corporation is authorized to establish one or more series of Preferred Stock,
setting forth the designation of each such series, and fixing the preferences,
limitations and relative rights of each such series of Preferred Stock.
2. Transfer Restrictions. The Corporation shall have the right to impose
restrictions on the transfer of shares of the Corporation.
3. Dividends. The Board of Directors of the Corporation may from time to
time distribute to shareholders in partial liquidation, or out of stated capital
or capital surplus of the Corporation, a portion of its assets, in cash or
property, subject to the limitations contained within the statutes of the State
of Colorado.
4. Distributions in Liquidation. Upon any liquidation, dissolution or
winding up of the Corporation, and after paying or adequately providing for the
payment of all its obligations, the remainder of the assets of the Corporation
shall be distributed, either in cash or in kind, and subject to any preferences
of any series of Preferred Stock, to the shareholders of the Corporation.
I FURTHER CERTIFY that the foregoing amendment was approved and adopted by
the Corporation's sole shareholder effective as of the 17th day of March, 1995.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Amendment this 31st day of July, 1995.
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/s/ R. Steven Adams
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R. Steven Adams, President
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ONLINE SYSTEM SERVICES, INC.
The undersigned, Thomas S. Plunkett, Chief Financial Officer of Online
System Services, Inc., a Colorado corporation (the "Corporation"), DOES HEREBY
CERTIFY that pursuant to actions taken by the Board of Directors on December 16,
1997 in accordance with Sections 7-106-101, 7-106-102 and 7-110-102 of the
Colorado Business Corporation Act, the following amendment was duly adopted by
the Board of Directors without shareholder approval as permitted by Section 7-
106-102(4) of the Colorado Business Corporation Act:
ARTICLE IV of the Articles of Incorporation of the Corporation, as amended,
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is further amended by adding a new Section 5, the text of which is set forth on
Exhibit A attached hereto.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Amendment this 30th day of December, 1997.
/s/ Thomas S. Plunkett
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Thomas S. Plunkett, Chief
Financial Officer
EXHIBIT A
5. Designation of 10% Preferred Stock. The Corporation shall establish
and reserve for issuance from its 5,000,000 authorized shares of Preferred Stock
a class of preferred stock consisting of 500,000 shares to be known as the 10%
Preferred Stock (the "10% Preferred Stock"). The 10% Preferred Stock shall have
a stated value of $10.00 per share. The preferences, limitations and relative
rights of the 10% Preferred Stock shall be as provided in this Section 5.
A. Voting Rights.
(1) Each outstanding share of the 10% Preferred Stock is entitled
to one vote on each matter submitted to a vote of shareholders. The
holders of the 10% Preferred Stock shall be entitled to vote on all
matters voted upon by the holders of the Corporation's Common Stock.
Unless otherwise required by law, the holders of the Common Stock and
the holders of the 10% Preferred Stock shall vote as a single class on
all matters submitted to a vote of shareholders.
(2) The holders of the 10% Preferred Stock shall not be entitled
to any rights of cumulative voting with respect to their shares.
B. Preemptive Rights. No holder of the 10% Preferred Stock shall
have any preemptive or similar right to acquire any additional unissued or
treasury shares of stock or securities of any class or rights, warrants or
options to purchase stock or scrip or securities in any kind, including
shares or securities convertible into shares or carrying stock purchase
warrants or privileges.
C. Dividends.
(1) Dividends shall accrue on the 10% Preferred Stock at the rate
of ten percent (10%) per annum on the stated value of the 10%
Preferred Stock and shall be paid quarterly on the first of each
January, April, July and October, beginning July 1, 1998, to the
record holder thereof on the 15th of the previous month, subject to
the limitations contained within the statutes of the State of
Colorado. Dividends not paid in any quarter shall accumulate until
paid, with interest on the unpaid balance, if any, accruing simple
interest at the rate stated above. Subject to the foregoing
limitations, dividends may be paid out of any funds legally available
for such purpose.
(2) Dividends on the 10% Preferred Stock shall be declared and
paid before dividends of any kind may be declared and paid on the
Common Stock or any inferior class or series of stock and before
distribution or any liquidation or distribution of any kind may be
made upon the issued and outstanding Common Stock or any inferior
class of stock.
(3) Upon any redemption or conversion of the 10% Preferred Stock
pursuant to paragraphs G and H below, the Corporation shall pay all accrued
but unpaid dividends on the 10% Preferred Stock called for redemption or
converted, as the case may be. The Corporation may pay such accrued but
unpaid dividends either (i) in cash or (ii) by issuing shares of Common
Stock at a price per share equal to the lesser of (a) $10.00 or (b) if a
redemption or a conversion occurring with respect to shares of the 10%
Preferred Stock for which the Corporation has given a Notice of Redemption
(as that term is defined in subparagraph G(2), below), the Average Per
Share Closing Bid Price (as defined below) for the five trading days
immediately preceding the date on which the Notice of Redemption was first
given to the holders of the 10% Preferred Stock called for redemption, or,
if a conversion occurring with respect to shares of the 10% Preferred Stock
for which the Corporation has not given a Notice of Redemption, the Average
Per Share Closing Bid Price for the five trading days immediately preceding
the date on which the Conversion Notice (as that term is defined in
subparagraph H(3), below) was first given to the Corporation.
(4) Upon payment by the Corporation of dividends on the basis
described in subparagraphs C(1)-C(3), the holders of the 10% Preferred
Stock shall have no further right to dividends and shall not participate in
any manner in dividends declared and paid or other distributions on the
Common Stock or any inferior class or series of stock.
D. Liquidation Preference. In the event of the liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, the holders of the 10% Preferred Stock shall be entitled to
receive, after payment by the Corporation of its debts and liabilities, the
stated value of all shares of the 10% Preferred Stock in cash plus any all
accrued but unpaid dividends out of the assets of the Corporation before any
payment shall be made or any assets distributed to the holders of the Common
Stock or any other inferior class or series of stock. If sufficient assets are
not available to pay all holders of the 10% Preferred Stock in full, the
available assets shall be distributed to the holders of the 10% Preferred Stock
on a pro rata basis. Except as provided in this paragraph D, the holders of the
10% Preferred Stock shall not be entitled to receive any other payments from the
Corporation in the event of the liquidation, dissolution or winding up of the
affairs of the Corporation.
E. Other Securities, Obligations.
(1) Subject to any limitations contained in these Articles of
Incorporation, the Board of Directors of the Corporation reserves the right
to establish additional classes and/or series of capital stock of the
Corporation and to designate the preferences, limitations and relative
rights of any such classes and/or series; provided, however, that no such
class and/or series may have preferences, limitations and relative rights
which are superior to or senior to the preferences, limitations and
relative rights granted to the holders of the 10% Preferred Stock.
(2) At any time during which any shares of the 10% Preferred
Stock are outstanding, the Corporation shall not incur any obligation
or liability other than trade payables and other short-term
indebtedness incurred in the ordinary course of business that is
superior to or senior to the 10% Preferred Stock in any respects,
including liquidation preferences.
F. Capital Reorganization. If the Corporation shall at any time
hereafter subdivide or combine its outstanding shares of Common Stock,
declare a dividend payable in Common Stock, or in case of any capital
reorganization or reclassification of the shares of Common Stock of the
Corporation, the number of shares and stated value of the 10% Preferred
Stock shall be adjusted appropriately to allow the holders of the 10%
Preferred Stock, as nearly as reasonably possible, to maintain (i) the
aggregate stated value of their 10% Preferred Stock and (ii) their pro rata
interest in the Corporation and in the Common Stock upon conversion of the
10% Preferred Stock, that they had prior to any such subdivision,
combination, stock dividend, reorganization or reclassification.
G. Redemption.
(1) The 10% Preferred Stock may be redeemed by the Corporation, in
whole or in part, at any time for $10.00 per share (the "Redemption
Price"). It is the Corporation's intent to use its best efforts to
raise sufficient capital to both fund its operations and to permit it
to redeem the 10% Preferred Stock as soon as is reasonably possible.
In addition, if the Corporation completes a public offering of its
securities that raises net proceeds of at least $5,000,000 (the
"Public Offering") within nine months from the date on which the
initial closing of the offering of the 10% Preferred Stock occurs (the
"Closing Date"), then the Corporation shall redeem all of the
outstanding 10% Preferred Stock.
(2) The Corporation shall give not more than sixty (60) nor less
than thirty (30) days notice (the "Notice of Redemption") of the date
fixed for any redemption (as fixed, the "Redemption Date") of the 10%
Preferred Stock by mailing the Notice of Redemption to the record
holders of the 10% Preferred Stock to such holder's address as it
appears on the records of the Corporation; provided, however, that the
Corporation shall not be required to give notice of any redemption of
the 10% Preferred Stock that occurs within nine months from the
Closing Date. In the case of a partial redemption of the 10%
Preferred Stock, the shares to be redeemed shall be selected in any
manner the Corporation may determine. The Notice of Redemption shall
be deemed given when it is deposited in the United States mail with
sufficient postage affixed or when it is delivered to the record
holder at such holder's address as it appears on the records of the
Corporation.
(3) On the Redemption Date, all rights of the holders of the 10%
Preferred Stock called for redemption shall cease and terminate with
respect to
such shares except (i) the right to receive the Redemption
Price upon surrender of the certificates representing the shares of
the 10% Preferred Stock called for redemption and (ii) the right to
receive payment of all dividends with respect to the shares of 10%
Preferred Stock called for redemption which are accrued but unpaid on
the Redemption Date.
H. Conversion.
(1) If the 10% Preferred Stock is not redeemed within nine months
from the Closing Date, each share of the outstanding 10% Preferred
Stock shall become convertible, at the election of the holder thereof
(the "Conversion Right"), into the number of shares of Common Stock of
the Corporation equal to $10.00 divided by the lesser of (i) $10.00 or
(ii) 80% of the Average Per Share Closing Bid Price of the
Corporation's Common Stock as calculated pursuant to the next sentence
The "Average Per Share Closing Bid Price" shall be (a) if the
conversion occurs with respect to shares of the 10% Preferred Stock
for which the Corporation has given a Notice of Redemption, the
average per share closing bid price for the Corporation's Common Stock
for the five trading days immediately preceding the date on which the
Notice of Redemption was first given to the holders of the 10%
Preferred Stock called for redemption or (b) if the conversion occurs
with respect to shares of the 10% Preferred Stock for which the
Corporation has not given a Notice of Redemption, the average closing
bid price for the five trading days immediately preceding the date on
which the holder gives the Conversion Notice (as that term is defined
in subparagraph H(3), below) to the Corporation. The Closing Bid Price
for the Common Stock at any date shall be (i) the Closing Bid Price of
the Common Stock as reported in The Wall Street Journal (or, if not so
reported, as otherwise reported by The Nasdaq Stock Market or, (ii) in
the event that the Common Stock is listed on a stock exchange or on
the Nasdaq National Market (or other national market), the Closing Bid
Price shall be the closing price on the exchange or the Nasdaq
National Market (or other national market), as the case may be, as
reported in The Wall Street Journal (or, if not so reported, as
otherwise reported by the stock exchange, Nasdaq or other national
market). In the event that there is no reported Closing Bid Price or
sale price, as the case may be, for a given day, the Closing Bid Price
or sale price, as the case may be, for that day shall be deemed to be
the Closing Bid Price or sale price, as the case may be, for the first
day preceding such day for which there was a reported Closing Bid
Price or sale price, as the case may be.
(2) The Conversion Right shall expire and terminate five (5) days
prior to the Redemption Date. In the case of a partial redemption of
the 10% Preferred Stock, the Conversion Right shall so expire and
terminate only with respect to the shares of the 10% Preferred Stock
called for redemption.
(3) In order to exercise the Conversion Right, the holder of the
10% Preferred Stock to be converted shall give written notice (the
"Conversion
Notice") to the Corporation at its principal office or, at
the option of the Corporation, at the offices of a conversion agent
which the Corporation may designate from time to time by giving
written notice of such designation to the holders of the 10% Preferred
Stock, that the holder elects to convert such shares. The Conversion
Notice shall be accompanied by the certificate or certificates
representing the shares of the 10% Preferred Stock to be converted,
duly endorsed to the Corporation. The Conversion Notice shall be
deemed given when it is deposited in the United States mail with
sufficient postage affixed or when it is delivered to the Corporation
at its principal office (or to the offices of such conversion agent,
if one be designated).
(4) As soon as practicable after the receipt of the Conversion
Notice and the certificates representing the shares of the 10%
Preferred Stock to be converted, the Corporation shall issue and shall
deliver to the record holder of the shares so surrendered for
conversion by mail to the address of such record holder as it appears
on the records of the Corporation, a certificate or certificates for
the number of shares of Common Stock issuable upon conversion of the
shares of the 10% Preferred Stock and a residual certificate for
shares of the 10% Preferred Stock, if any, not converted. Such
conversion shall be deemed to have been effected on the date on which
the Corporation (or the conversion agent, if one be designated), shall
have received the Conversion Notice and the certificate or
certificates representing shares of the 10% Preferred Stock to be
converted, and the record holder shall be deemed to have become on
such date the holder of record of the shares of Common Stock to be
received upon conversion; provided, however, that any such surrender
on any date when the stock transfer books of the Corporation shall be
closed in accordance with the bylaws of the Corporation shall not be
deemed to constitute the record holder as the holder of shares of
Common Stock to be received upon conversion for any purpose until the
close of business on the day succeeding the day on which such stock
transfer books shall become open.
(5) The Corporation shall not be required to issue fractional
shares of Common Stock upon conversion of shares of the 10% Preferred
Stock. If any fractional interest in a share of Common Stock would be
deliverable upon conversion of any shares of the 10% Preferred Stock,
the Corporation shall make an adjustment therefor in cash at the
current market value thereof, computed on the basis determined by the
Corporation in its sole discretion.
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ONLINE SYSTEM SERVICES, INC.
The undersigned, Thomas S. Plunkett, Chief Financial Officer of Online
System Services, Inc., a Colorado corporation (the "Corporation"), DOES HEREBY
CERTIFY that pursuant to actions taken by the Board of Directors on May 7, 1998
in accordance with Sections 7-106-101, 7-106-102 and 7-110-102 of the Colorado
Business Corporation Act, the following amendment was duly adopted by the Board
of Directors without shareholder approval as permitted by Section 7-106-102(4)
of the Colorado Business Corporation Act:
ARTICLE IV of the Articles of Incorporation of the Corporation, as amended,
is further amended by adding a new Section 6, the text of which is set forth on
Exhibit A attached hereto.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Amendment this 22nd day of May, 1998.
/s/ Thomas S. Plunkett
----------------------
Thomas S. Plunkett
Chief Financial Officer
EXHIBIT A
6. Designation of Preferred Stock. The Corporation shall establish and
reserve for issuance from its 5,000,000 authorized shares of Preferred Stock a
class of convertible preferred stock consisting of 3,000 shares to be designated
as the 5% Preferred Stock (the "5% Preferred Stock"). The 5% Preferred Stock
shall have a stated value of the Liquidation Preference (as hereinafter
defined). Except as otherwise expressly stated in this Section 6, all shares of
the 5% Preferred Stock shall be identical to the shares of 10% Preferred Stock,
and the holders of 5% Preferred Stock shall be entitled to the same preferences,
limitations and relative rights as the holders of 10% Preferred Stock.
A. Dividends.
(1) Holders of the 5% Preferred Stock shall be entitled to
receive, out of funds legally available therefor, dividends at a rate
equal to 5% (the "Dividend Rate") of the Liquidation Preference per
share per annum (subject to appropriate adjustments in the event of
any stock dividend, stock split, combination or other similar
recapitalization affecting such shares), and no more, payable in
accordance with the provisions of this Section 6. Notwithstanding the
foregoing sentence of this Subsection A(1), in the event the
Registration Statement (as hereinafter defined) is not declared
effective by the Securities and Exchange Commission (the "Commission")
within 90 days following the Initial Closing Date (as defined in that
certain Securities Purchase Agreement (the "Securities Purchase
Agreement"), dated as of May 22, 1998, among the Corporation, the
purchasers named therein and West End Capital LLC), then the Dividend
Rate shall increase to 18% until the Registration Statement is
declared effective; provided, however, that if the Commission conducts
a review of the Registration Statement, the Dividend Rate shall not
increase unless it is not declared effective by the Commission within
120 days following the Initial Closing Date, at which time the
Dividend Rate shall increase to 18% until the Registration Statement
is declared effective.
(2) At the election of the Corporation, each dividend on 5%
Preferred Stock shall be paid either in shares of Common Stock or in
cash on the Delivery Date (as defined in Subsection H(2)(a) of this
Section 6) with respect to any shares of 5% Preferred Stock which are
the subject of a Notice of Conversion (as defined in Subsection
H(2)(a) of this Section 6). Dividends paid in shares of Common Stock
shall be paid (based on an assumed value of $1,000 per share) in full
shares only, with a cash payment equal to the value of any fractional
shares. Each dividend paid in cash shall be mailed to the holders of
record of the 5% Preferred Stock as their names and addresses appear
on the share register of the Corporation or at the office of the
transfer agent on the corresponding dividend payment date. Holders of
5% Preferred Stock will receive written notification from the
Corporation or the transfer agent if a dividend is paid in kind, which
notification will specify the number of shares of Common Stock paid as
a dividend and the recipient's aggregate holdings of Common Stock as
of that dividend payment date and after giving effect to the dividend.
All holders of shares of Common Stock issued as dividends shall be
entitled to all of the rights and benefits relating to shares of
Common Stock as
set forth in the Corporation's Articles of Incorporation, as amended,
and By-laws.
(3) Holders of the 5% Preferred Stock shall be entitled to
payment of any dividends in preference and priority to any payment of
any cash dividend on Common Stock or any other class or series of
capital stock of the Corporation other than any other class or series
of stock ranking senior ("Senior Preferred Stock") to the 5% Preferred
Stock in respect of dividends, when and as declared by the Board of
Directors of the Corporation. The rights of the holders of 5%
Preferred Stock and 10% Preferred Stock to receive any dividends shall
be equal in preference and priority. Dividends on the 5% Preferred
Stock shall accrue with respect to each share of the 5% Preferred
Stock from the date on which such share is issued and outstanding and
thereafter shall be deemed to accrue from day to day whether or not
earned or declared and whether or not there exists profits, surplus or
other funds legally available for the payment of dividends, and shall
be cumulative so that if such dividends on the 5% Preferred Stock
shall not have been paid, or declared and set apart for payment, the
deficiency shall be fully paid or declared and set apart for payment
before any dividend shall be paid or declared or set apart for any
Common Stock or other class or series of capital stock ranking junior
to the 5% Preferred Stock (such stock being collectively referred to
herein as the "Junior Stock") and before any purchase or acquisition
of any Junior Stock is made by the Corporation, except the repurchase
of Junior Stock from employees of the Corporation upon termination of
employment. At the earlier of: (1) the redemption or conversion of the
5% Preferred Stock or (2) the liquidation of the Corporation, any
accrued but undeclared dividends shall be paid to the holders of
record of outstanding shares of the 5% Preferred Stock in accordance
with the provisions of this Section 6. No accumulation of dividends on
the 5% Preferred Stock shall bear interest.
B. Liquidation, Dissolution or Winding Up.
(1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of
the 5% Preferred Stock then outstanding shall be entitled to be paid
out of the assets of the Corporation available for distribution to its
stockholders, after and subject to the payment in full of all amounts
required to be distributed to the holders of any Senior Preferred
Stock ranking on liquidation prior and in preference to the Preferred
Stock, but before any payment shall be made to the holders of Junior
Stock by reason of their ownership thereof, an amount equal to $1,000
per share of 5% Preferred Stock (the "Liquidation Preference") plus
any accrued but unpaid dividends (whether or not declared). The
rights of the holders of 5% Preferred Stock and 10% Preferred Stock to
receive any such distributions shall be equal in preference and
priority. If upon any such liquidation, dissolution or winding up of
the Corporation the remaining assets of the Corporation available for
distribution to its shareholders shall be insufficient to pay the
holders of shares of the 5% Preferred Stock the full amount to which
they shall be entitled, the holders of shares of the 5% Preferred
Stock shall share ratably in any distribution of the remaining assets
and funds of the Corporation in proportion to the respective amounts
which would otherwise be payable in respect of the
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shares held by them upon such distribution if all amounts payable on
or with respect to such shares were paid in full.
(2) After the payment of all preferential amounts required to be
paid to the holders of the 5% Preferred Stock and the 10% Preferred
Stock upon the dissolution, liquidation, or winding up of the
Corporation, all of the remaining assets and funds of the Corporation
available for distribution to its shareholders shall be distributed
ratably among the holders of the 5% Preferred Stock and the Junior
Stock, with each share of 5% Preferred Stock being deemed, for such
purpose, to be equal to the number of shares of Common Stock,
including fractions of a share, into which such share of 5% Preferred
Stock is convertible immediately prior to the close of business on the
business day fixed for such distribution.
C. Voting.
(1) Each holder of outstanding shares of 5% Preferred Stock shall
be entitled, at each meeting of shareholders of the Corporation (and
with respect to written consents of shareholders in lieu of meetings)
with respect to any and all matters presented to the shareholders of
the Corporation for their action or consideration, to the number of
votes equal to the number of whole shares of Common Stock into which
the shares of 5% Preferred Stock held by such holder are convertible
(as adjusted from time to time pursuant to Subsection H hereof)
immediately after the close of business on the record date fixed for
such meeting or the effective date of such written consent. Except as
provided by law, by the provisions of Section J below, or by the
provisions establishing any other series of preferred stock, holders
of 5% Preferred Stock shall vote together with the holders Common
Stock as a single class.
(2) The holders of the 5% Preferred Stock shall not be entitled
to any rights of cumulative voting with respect to their shares.
D. Preemptive Rights. No holder of Preferred Stock shall have any
preemptive or similar right to acquire any additional unissued or treasury
shares of stock or securities of any class or rights, warrants or options
to purchase stock or scrip or securities in any kind, including shares or
securities convertible into shares or carrying stock purchase warrants or
privileges.
E. Other Securities. Subject to any limitations contained in these
Articles of Incorporation, the Board of Directors of the Corporation
reserves the right to establish additional classes and/or series of capital
stock of the Corporation and to designate the preferences, limitations and
relative rights of any such classes and/or series; provided, however, that
no such class and/or series may have preferences, limitations and relative
rights which are superior to or senior to the preferences, limitations and
relative rights granted to the holders of the 5% Preferred Stock.
F. Capital Reorganization. If the Corporation shall at any time
hereafter subdivide or combine its outstanding shares of Common Stock,
declare a dividend payable in Common Stock, or in case of any capital
reorganization or reclassification of the shares of Common Stock of the
Corporation, the number of shares of the 5%
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Preferred Stock and the stated value of the 5% Preferred Stock shall be
adjusted appropriately to allow the holders of the 5% Preferred Stock, as
nearly as reasonably possible, to maintain (i) the aggregate stated value
of the 5% Preferred Stock and (ii) their pro rata interest in the
Corporation and in the Common Stock upon conversion of the 5% Preferred
Stock, that each holder had prior to any such subdivision, combination,
stock dividend, reorganization or reclassification.
G. Optional Redemption
(1) At any time within the 120 days following the Initial Closing
Date, the Corporation may, at its option, redeem all or any portion of
the shares of 5% Preferred Stock then outstanding upon not less than
ten (10) days' notice at a redemption price per share equal to (A) the
quotient of (i) the Liquidation Preference per share of 5% Preferred
Stock plus all accrued but unpaid dividends on such shares of 5%
Preferred Stock and (ii) the Conversion Price as if the 5% Preferred
Stock has been converted on the 5% Preferred Stock Redemption Date (as
hereinafter defined) multiplied by (B) the average Closing Bid Price
(as hereinafter defined) of shares of Common Stock for the five (5)
trading days immediately preceding the 5% Preferred Stock Redemption
Date. Notwithstanding the foregoing, a redemption shall not occur
pursuant to this Subsection G(1) with respect to any 5% Preferred
Stock for which a holder has previously submitted a Notice of
Conversion pursuant to Subsection H of this Section 6. For purposes of
this Section 6, the term "Closing Bid Price" means, for any security
as of any date, the closing bid price on the principal securities
exchange or trading market where the Common Stock is listed or traded
as reported by Bloomberg, L.P. ("Bloomberg") or, if applicable, the
closing bid price of the Common Stock in the over-the-counter market
on the electronic bulletin board for such security as reported by
Bloomberg, or, if no closing bid price is reported for the Common
Stock by Bloomberg, then the average of the bid prices of any market
makers for such security as reported in the "pink sheets" by the
National Quotation Bureau, Inc. If the Closing Bid Price of the Common
Stock cannot be calculated on such date on any of the foregoing bases,
the Closing Bid Price of the Common Stock on such date shall be the
fair market value as mutually determined by the Corporation and
holders of a majority of the outstanding shares of 5% Preferred Stock
being converted for which the calculation of the Closing Bid Price is
required in order to determine the Conversion Price of such shares.
"Trading day" shall mean any day on which the Corporation's Common
Stock is traded for any period on the principal securities exchange or
other securities market on which the Common Stock is then being
traded.
(2) Upon receipt of a notice given pursuant to Subsection G(1),
each holder of 5% Preferred Stock shall accept its ratable portion
(based on its holdings of 5% Preferred Stock as compared to the
aggregate number of shares of 5% Preferred Stock then outstanding) of
such offer by tendering such holder's shares to the Corporation for
redemption, at an address to be set forth in such notice, at any time
prior to 5:00 p.m. New York time on the 11th day following the mailing
of such notice (the "5% Preferred Stock Redemption Date"). Upon
receipt of a notice given pursuant to Subsection G(1) of this Section
6, the 5% Preferred Stock which is the subject of such notice may not
thereafter be
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converted in accordance with Subsection H(1)(a) of this Section 6,
unless a Notice of Conversion relating to such 5% Preferred Stock had
previously been submitted. Within three (3) business days after the
5% Preferred Stock Redemption Date, the Corporation shall remit the
applicable redemption price, calculated pursuant to Subsection G(1) of
this Section 6, by wire transfer to each holder of the 5% Preferred
Stock to the most recent address of each holder as set forth on the
records of the Corporation or its transfer agent.
(3) Any shares of 5% Preferred Stock redeemed pursuant to this
Subsection G or otherwise acquired by the Corporation in any manner
whatsoever shall be canceled and shall not under any circumstances be
reissued. The Corporation may from time to time take such appropriate
corporate action as may be necessary to reduce accordingly the number
of authorized shares of the Corporation's capital stock.
H. Conversion.
(1) Subject to Subsection G(2) of this Section 6, the holders of
the 5% Preferred Stock shall have conversion rights as follows (the
"5% Preferred Stock Conversion Rights"):
(a) Each share of 5% Preferred Stock shall be convertible,
at the option of the holder thereof, at any time and from time to
time, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing $1,000, plus the amount
of any accrued and unpaid dividends the Corporation elects to pay
in Common Stock, by the Conversion Price in effect at the time of
conversion. The Conversion Price at which shares of Common Stock
shall be deliverable upon conversion of 5% Preferred Stock
without the payment of additional consideration by the holder
thereof (the "Conversion Price") shall be the lower of (i) $16.33
or (ii) 86% of the average Closing Bid Price of the shares of
Common Stock for the five (5) trading days immediately preceding
the 5% Preferred Stock Conversion Date (as hereinafter defined).
(b) At any time that the number of shares of Common Stock
issued (A) upon conversion of the 5% Preferred Stock and (B) in
lieu of dividend payments on the 5% Preferred Stock, shall equal
574,281 (a "Common Stock Redemption Event"), the Corporation
shall (x) redeem, at a price determined in accordance with
Subsection G(1) of this Section 6, all of the outstanding 5%
Preferred Stock in accordance with the provisions of Subsection
G(2) or (y) call a special meeting of its shareholders for the
purpose of approving the transactions contemplated by the
Securities Purchase Agreement, including the issuance of the 5%
Preferred Stock on the terms set forth therein, together with any
other approvals that shall be required so as to cause the
transactions contemplated by the Securities Purchase Agreement to
remain in compliance with the Rules and Regulations of The Nasdaq
Stock Market (including Rule 4320 of Nasdaq's Non-Qualitative
Designation Criteria in connection with conversions of 5%
Preferred Stock; such approvals
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are referred to herein as the "Required Approvals"). The
Corporation shall determine within five (5) business days
following the receipt of a Notice of Conversion which of such
actions it shall take, and shall promptly furnish notice to each
of the holders of 5% Preferred Stock as to such determination,
including, if applicable, a notice of redemption. In no event
shall the Corporation issue shares of Common Stock upon
conversion of, or in lieu of interest payments on, the 5%
Preferred Stock, after the occurrence of a Common Stock
Redemption Event until the Required Approvals, if any, are
obtained.
(c) If the Corporation elects to call a special meeting of
its shareholders pursuant to Subsection H(1)(b) of this Section 6
to obtain the Required Approvals, the Corporation shall use its
best efforts to obtain such Required Approvals within one hundred
twenty (120) days of the Initial Closing Date (such one hundred
twenty (120) day period is referred to herein as an "Approval
Period"). If the Corporation does not obtain the Required
Approvals within the Approval Period and the Corporation receives
a Notice of Conversion after the termination of the Approval
Period, the Corporation must redeem, in accordance with this
Subsection H of this Section 6, any shares of 5% Preferred Stock
outstanding after the Corporation has issued in excess of 574,281
shares of Common Stock in connection with conversions of the 5%
Preferred Stock.
(d) If the Corporation elects, pursuant to this Subsection
H, to redeem the 5% Preferred Stock on the occurrence of a Common
Stock Redemption Event, it shall redeem such 5% Preferred Stock
at the price determined in accordance with Subsection G(1) of
this Section 6. If the Corporation shall have elected, pursuant
to this Subsection H(1), to obtain the Required Approvals but
shall not have done so by the later of the occurrence of the
Common Stock Redemption Event or the expiration of the Approval
Period, it shall furnish a redemption notice to the Purchasers
within three (3) business days after the expiration of the
Approval Period.
(2) The 5% Preferred Stock Conversion Rights shall be exercised
as follows:
(a) The Corporation will permit each holder of 5% Preferred
Stock to exercise its right to convert the 5% Preferred Stock by
faxing an executed and completed notice of conversion (the
"Notice of Conversion") to the Corporation, and delivering within
three (3) business days thereafter, the original Notice of
Conversion (and the certificates representing the related shares
of 5% Preferred Stock) to the Corporation by hand delivery or by
express courier, duly endorsed. Each date on which a Notice of
Conversion is faxed to and received in accordance with the
provisions hereof shall be deemed a "5% Preferred Stock
Conversion Date." The Corporation will transmit the certificates
representing the Common Stock issuable upon conversion of the 5%
Preferred Stock (together with certificates representing the
related shares
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of 5% Preferred Stock not so converted and, if applicable, a
check representing any fraction of a share not converted) to such
holder via express courier as soon as practicable, but in all
events no later than the later to occur of (the "Delivery Date")
(i) three (3) business days after the 5% Preferred Stock
Conversion Date, or (ii) three (3) business days after receipt by
the Corporation of the original Notice of Conversion (and the
certificates representing the related shares of 5% Preferred
Stock). For purposes of this Section 6, such conversion of the
5% Preferred Stock shall be deemed to have been made immediately
prior to the close of business on the 5% Preferred Stock
Conversion Date.
(b) In lieu of delivering physical certificates representing
the Common Stock issuable upon the conversion of the 5% Preferred
Stock, provided that the Corporation's transfer agent is
participating in the Depository Trust Corporation ("DTC") Fast
Automated Securities Transfer program, on the written request of
a holder of 5% Preferred Stock who shall have previously
instructed such holder's prime broker to confirm such request to
the Corporation's transfer agent, the Corporation shall use
commercially reasonable efforts to cause its transfer agent to
electronically transmit such Common Stock to such holder by
crediting the account of the holder's prime broker with DTC
through its Deposit Withdrawal Agent Commission system no later
than the applicable Delivery Date.
(c) The Corporation will at all times have authorized and
reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the conversion of the 5%
Preferred Stock. The Corporation will use its best efforts at all
times to maintain a number of shares of Common Stock so reserved
for issuance that is no less than one and one-half (1.5) times
the number that is then actually issuable upon the conversion of
the 5% Preferred Stock, the exercise of the Warrants issued
pursuant to the Securities Purchase Agreement and the maximum
number of shares of Additional Common Stock (as defined in the
Securities Purchase Agreement) which may be issued in accordance
with the Securities Purchase Agreement. Before taking any action
which would cause an adjustment reducing the Conversion Price
below the established par value of the shares of Common Stock
issuable upon conversion of the 5% Preferred Stock, the
Corporation will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Conversion
Price.
(d) All shares of 5% Preferred Stock, which shall have been
surrendered for conversion as herein provided shall no longer be
deemed to be outstanding, and all rights with respect to such
shares, including the rights, if any, to receive dividends,
notices and to vote, shall immediately cease and terminate on the
5% Preferred Stock Conversion Date, except only the right of the
holders thereof to receive shares of Common Stock in exchange
therefor. Any shares of 5% Preferred Stock
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so converted shall be retired and canceled and shall not be
reissued, and the Corporation may from time to time take such
appropriate action as may be necessary to reduce the number of
shares of authorized 5% Preferred Stock accordingly.
(3) In the event of a liquidation of the Corporation, the 5%
Preferred Stock Conversion Rights shall terminate at the close of
business on the first full day preceding the date fixed for the
payment of any amounts distributable on liquidation to the holders of
the 5% Preferred Stock.
(4) If the conversion is in connection with an underwritten offer
of securities registered pursuant to the Securities Act of 1933, as
amended, the conversion may, at the option of any holder tendering 5%
Preferred Stock for conversion, be conditioned upon the closing with
the underwriter of the sale of securities pursuant to such offering,
in which event the person(s) entitled to receive the Common Stock
issuable upon such conversion of the 5% Preferred Stock shall not be
deemed to have converted such 5% Preferred Stock until immediately
prior to the closing of the sale of securities.
(5) At no time shall any holder of the 5% Preferred Stock convert
such amount of 5% Preferred Stock as shall result in such Purchaser's
ownership, after such conversion, exceeding 9.9% of the Corporation's
outstanding Common Stock.
(6) No fractional shares of Common Stock shall be issued upon
conversion of the Preferred Stock. In lieu of fractional shares, the
Corporation shall pay cash equal to such fraction multiplied by the
then effective and applicable Conversion Price.
(7) The Corporation will not, by amendment of its Articles of
Incorporation or through any reorganization, 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 under this
Subsection H by the Corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Subsection H
and in the taking of all such action as may be necessary or
appropriate in order to protect the 5% Preferred Stock Conversion
Rights of the holders of the 5% Preferred Stock against impairment.
(8) In the event (a) that the Corporation declares a dividend (or
any other distribution) on its Common Stock payable in Common Stock or
other securities of the Corporation, (b) that the Corporation
subdivides or combines its outstanding shares of Common Stock, (c) of
any reclassification of the Common Stock of the Corporation (other
than a subdivision or combination of its outstanding shares of Common
Stock or a stock dividend or stock distribution thereon), (d) of any
consolidation or merger of the Corporation into or with another
corporation, (e) of the sale of all or substantially all of the assets
of the Corporation, or (f) of the involuntary or voluntary
dissolution, liquidation or winding up of the Corporation, then the
Corporation shall cause to be filed at its principal office or at the
office of the transfer agent of the Preferred Stock, and
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shall cause to be mailed to each holder of the Preferred Stock at
their last address as shown on the records of the Corporation or such
transfer agent, at least ten (10) days prior to the record date
specified in (i) below or twenty (20) days before the date specified
in (ii) below, a notice stating
(i) the record date of such dividend, distribution,
subdivision or combination, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, subdivision or
combination are to be determined, or
(ii) the date on which such reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger,
sale, dissolution or winding up.
I. Sinking Fund. There shall be no sinking fund for the payment of
dividends, or liquidation preferences on the 5% Preferred Stock or the
redemption of any shares thereof.
J. Amendment. This Section 6 constitutes an agreement between the
Corporation and the holders of the 5% Preferred Stock. The Corporation
shall not amend this Section 6 or alter or repeal the preferences, rights,
powers or other terms of the 5% Preferred Stock so as to affect adversely
the 5% Preferred Stock, without the written consent or affirmative vote of
the holders of at least sixty-six and two-thirds percent (66 2/3%) of the
then outstanding shares of 5% Preferred Stock, given in writing or by vote
at a meeting, consenting or voting (as the case may be) separately as a
class.
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