AMENDED CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF PREFERRED STOCK
OF MICROTEL INTERNATIONAL INC.,
A DELAWARE CORPORATION
The undersigned, Carmine T. Oliva, hereby certifies that:
A. He is the duly elected and acting President of MicroTel
International Inc., a Delaware corporation (the "Corporation").
B. Pursuant to authority given by the corporation's Certificate of
Incorporation, and in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, the Board of Directors of
the Corporation seeks to provide the Shareholders of misstatements has duly
adopted the following amended and restated recitals and resolutions:
WHEREAS, the Certificate of Incorporation of this corporation provides
for two classes of shares known as Common Stock and Preferred Stock;
WHEREAS, on May 19, 1998, the Board of Directors adopted a Certificate
of Designations, Preferences and Rights of Series A Preferred Stock of
MicroTel International Inc. (the "Certificate of Designation"), which was
filed with the Secretary of State of the State of Delaware on May 20, 1998;
and
WHEREAS, certain purchasers of the Corporation's Series A Preferred
Stock have requested the Corporation to clarify certain provisions of the
Series A Certificate, and to provide certain protections to the Shareholders
of Series A Preferred Stock of the Corporation (the "Series A Shareholders");
and
WHEREAS, the Board of Directors of the Corporation desires to clarify
the Certificate of Designation and to provide the Series A Shareholders with
certain protections;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors deems it
advisable to adopt, and hereby does adopt, the Corporation's Amended
Certificate of Designations, Preferences and Rights of Series A Preferred
Stock of MicroTel International Inc., a Delaware corporation as follows:
A. DESIGNATION. One series of Preferred Stock, designated Series A
Preferred Stock, is hereby provided for, which shares shall have the rights,
privileges and preferences set forth below.
B. AUTHORIZED NUMBER. The number of shares constituting the Series A
Preferred Stock shall be 200, par value .01 per share.
C. DIVIDEND PROVISIONS. The holders of shares of Series A Preferred
Stock shall not be entitled to receive dividends.
D. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of
the Corporation, either voluntary or involuntary, the holders of shares of
Series A Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets of this corporation to
the holders of the Common Stock by reason of their ownership, an amount per
share equal to $10,000 (the "Stated Value") for each outstanding share of
Series A Preferred Stock. If upon the occurrence of such 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 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 on a share-by-share basis
in proportion to the aggregate preferential amounts of each such series of
Preferred Stock.
(b) A consolidation or merger of the Corporation with or into any
other corporation or corporations, or a sale, conveyance or disposition of
all or substantially all of the assets of this corporation or the
effectuation by the Corporation of a transaction or series of related
transactions in which more than 50% of the voting power of the Corporation is
disposed of, shall not be deemed to be a liquidation, dissolution or winding
up within the meaning of this Section D but shall instead be treated pursuant
to Section E hereto.
E. CONVERSION. The holders of the Series A Preferred Shares shall
have conversion rights as follows (the "Conversion Rights"):
(1) CONVERSION RIGHTS.
(i) All Series A Preferred Share shall be convertible, at
the option of the holders of such shares, at any time after the ninetieth
(90th) day of issuance of such shares, at the office of the Corporation or
any transfer agent for the Series A Preferred Shares, into the number of
fully paid and nonassessable unrestricted and nonlegended Common Shares of
the Corporation at the conversion price per Series A Preferred Share equal to
$10,000 divided by the lesser of (x) $1.25 and (y) One Hundred Percent (100%)
of the arithmetic average of the three lowest closing bid prices (not
necessarily consecutive) over the forty (40) trading days prior to the
exercise date of any such conversion.
(ii) In the event of a call for redemption of any Series A
Preferred Shares pursuant to Section F hereof, each holder of any Series A
Preferred Shares shall have the right to exercise the conversion rights set
forth in this Section E and the right to convert each share shall cease as to
the shares designated for redemption as of the close of business on the
business day immediately prior to the redemption date, unless default is made
in payment of the redemption price. If the Corporation has received a notice
of conversion with respect to any Series A Preferred Shares the Corporation
may not redeem such Series A Preferred Shares provided the Series A Preferred
Shares are delivered for conversion as set forth in Section E(2).
(2) MECHANICS OF CONVERSION.
(i) No fractional shares of Common Stock shall be issued
upon conversion of the Series A Preferred Shares. In lieu of any fractional
share to which the holder would otherwise be entitled, the Corporation shall
round up to the nearest whole share. In the case of a dispute as to the
calculation of the Conversion Rate, the Corporation's calculation shall be
deemed conclusive absent manifest error. In order to convert Series A
Preferred Shares into full shares of Common Stock, the holder shall surrender
the certificate or certificates therefor, duly endorsed, by either overnight
courier or 2-day courier, to the office of the Corporation for the Series A
Preferred Shares, and shall give written notice to the Corporation at such
office that the holder elects to convert the same, the number of shares of
Series A Preferred Shares so converted and a calculation of the Conversion
Rate (with an advance copy of the certificate(s) and the notice by
facsimile); provided, however, that the Corporation shall not be obligated
to deliver certificates evidencing the shares of Common Stock issuable upon
such conversion unless certificates evidencing such Series A Preferred Shares
are delivered to the Corporation as provided above, or the holder notifies
the Corporation that such certificates have been lost, stolen or destroyed
and executes an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by it in connection with such
certificates.
(ii) The Corporation shall use reasonable efforts to cause
to be issued and delivered within two (2) business days after delivery to the
Corporation of such Series A Preferred Shares, or after such agreement and
indemnification, to such holder of Series A Preferred Shares at the address
of the holder on the stock books of the Corporation, a certificate or
certificates for the number of shares of Common Stock to which he shall be
entitled as aforesaid. The date on which notice of conversion is given (the
"Date of Conversion") shall be deemed to be the date set forth in such notice
of conversion provided the original Series A Preferred Shares to be converted
are received by the Corporation within five (5) business days thereafter 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 on such date. If the original
Series A Preferred Shares to be converted are not received by the Corporation
within five (5) business days after the Conversion, the notice of conversion
shall become null and void.
(3) CONVERSION PRICE ADJUSTMENTS. The closing bid price used to
determine the Conversion Price shall be appropriately adjusted to reflect, as
deemed equitable and appropriate by the Corporation, any stock dividend,
stock split or share combination of the Common Stock. In the event of a
merger, reorganization, recapitalization or similar event of or with respect
to the Corporation (a "Corporate Change") (other than a Corporate Change in
which all or substantially all of the consideration received by the holders
of the Company's equity securities upon such Corporate Change consists of
cash or assets other than securities issued by the acquiring entity or any
affiliate thereof), the Series A Preferred Shares shall be convertible into
such class and type of securities as the Holder would have received had the
Holder converted the Series A Preferred Shares immediately prior to such
Corporate Change, as appropriately adjusted to equitably reflect the
conversion price and any stock dividend, stock split or share combination of
the common stock after such corporate event.
(4) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
Corporation shall at all times reserve and keep available out of its
authorized but unissued Common Shares solely for the purpose of effecting the
conversion of the Series A Preferred Shares such number of its Common Shares
as shall from time to time be sufficient to effect the conversion of all
outstanding Series A Preferred Shares; and if at any time the number of
authorized but unissued Common Shares shall not be sufficient to effect the
conversion of all then outstanding Series A Preferred Shares, in addition to
such other remedies as shall be available to the holder of such Series A
Preferred Shares, the Corporation will take such corporate action as may, in
the opinion of its counsel, be necessary to increase its authorized but
unissued Common Shares to such number of shares as shall be sufficient for
such purposes.
F. REDEMPTION OF SERIES A PREFERRED SHARES.
(1) OPTIONAL REDEMPTION. The Corporation may redeem all
outstanding and unconverted Series A Preferred Shares for cash at a per share
price equal to $11,500 (115% of the Stated Value) for each Series A Preferred
Share by giving written notice to the Holders at least twenty (20) days in
advance of such redemption. If the Corporation has received a notice of
conversion with respect to any Series A Preferred Shares, the Corporation may
not redeem such Series A Preferred Shares provided the Series A Preferred
Shares are delivered for conversion as set forth in Section E(2) during the
notice period prior to the redemption date as set forth in F(3)(ii) below.
If the Corporation fails to redeem after giving written
notice, it shall pay to the Holders pro-rata a total of five (5%) percent of
the amount to be redeemed as liquidated damages.
(2) MANDATORY REDEMPTION. On May 22, 2003, the Corporation shall
redeem all Series A Preferred Shares then outstanding, by the payment
therefor of the redemption price of $11,500 per share.
(3) MANNER OF REDEMPTION OF SERIES A PREFERRED SHARES.
(i) If less than all of the outstanding Series A Preferred
Shares shall be called for redemption, the particular shares of such series
to be redeemed shall be selected by lot or by such other equitable manner as
may be prescribed by resolution of the Board of Directors.
(ii) Notice of redemption of any Series A Preferred Shares
shall be given by the Corporation by fax or other written communication, at
least twenty (20) days prior to the date fixed by the Board of Directors of the
Corporation for redemption (herein called the "redemption date"), to the holders
of record of the
shares to be redeemed at their respective addresses then appearing on the
records of the Corporation. The notice of the redemption shall state:
(A) the redemption date,
(B) the redemption price (which must be paid within
five (5) business days after the date of redemption),
(C) whether the redemption is an optional redemption
or a mandatory redemption,
(D) if less than all outstanding Series A Preferred
Shares are to be redeemed, the identification of the Series A Preferred
Shares to be redeemed,
(E) the conversion rate on the date of the notice,
(F) that on the redemption date the redemption price
will become due and payable upon each Series A Preferred Shares to be
redeemed and the right to convert each share of Series A Preferred Share
shall cease as of the close of business on the business day prior to the
redemption date, unless default shall be made in the payment of the
redemption price, and
(G) the place or places where such Series A Preferred
Shares to be redeemed are to be surrendered for payment of the redemption
price.
(4) FAILURE TO REDEEM. If the Corporation fails to pay the
redemption price after calling any Series A Preferred Shares for optional
redemption under Section F(1), the Corporation shall have no further right to
redeem Series A Preferred Shares under Section F(1).
(5) REACQUIRED SHARES. Any shares of the Series A Preferred
Stock converted, redeemed or purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Series A Preferred Stock and may be
reissued at the direction of the Corporation subject to the conditions or
restrictions on issuance set forth herein.
G. CORPORATE EVENTS. In the event of (i) any declaration by the
Corporation of a record date of the holders of any class of securities for
the purpose of determining the holders thereof who are entitled to receive
any dividend (other than cash dividend) or other distribution or (ii) any
capital reorganization of the Corporation, any reclassification or
recapitalization of the capital stock of the Corporation, any merger or
consolidation of the Corporation, and any transfer of all or substantially
all of the assets of the Corporation to any other Corporation, or any other
entity or person, or any voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, the Corporation shall mail to each holder of
Series A Preferred Shares at least twenty (20) days prior to the record date
specified therein, a notice specifying (A) the date on which any such record
is to be declared for the purpose of such dividend or distribution and a
description of such dividend or distribution, (B) the date on which any such
reorganization, reclassification, transfer, consolidation, merger,
dissolution, liquidation or winding up is expected to become effective and
(C) the time, if any, that is to be fixed, as to when the holders of record
of Common Stock (or other securities) will receive for securities or other
property deliverable upon such reorganization, reclassification, transfer,
consolidation, merger, dissolution or winding up.
H. VOTING RIGHTS.
(1) The Holders of the Series A Preferred Shares shall not have
any voting rights except as set forth below or as otherwise from time to time
required by law.
(2) To the extent that under California law the vote of the
holders of the Series A Preferred Shares, voting separately as a class, 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 outstanding Series A
Preferred Shares shall constitute the approval of such action by the class.
To the extent that under California law the holders of the Series A Preferred
Shares are entitled to vote on a matter with holders of Common Stock voting
together as one class, each Series A Preferred
Shares 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 stockholders as the date as of which the
Conversion Price is calculated. Holders of the Series A Preferred Shares
shall be entitled to notice of all shareholder meetings or written consents
with respect to which they would be entitled to vote, which notice would be
provided pursuant to the Corporation's bylaws and applicable statutes.
I. PROTECTIVE PROVISIONS. So long as the Series A Preferred Shares
are outstanding, the Corporation shall not take any action that would impair
the rights of the holders of the Series A Preferred Shares set forth herein
and shall not without first obtaining the approval (by vote or written
consent, as provided by law) of the holders of at least a majority in
aggregate principal amount of the Series A Preferred Shares then outstanding:
(1) Alter or change the rights, preferences or privileges of the
Series A Preferred Shares so as to affect adversely the Series A Preferred
Shares.
(2) For a period of eight (8) months from the issuance of the
Series A Preferred Shares, create any new class or series of stock which
ranks prior to or PARI PASSU to the Series A Preferred Shares with respect to
liquidation preference, other than any additional series of Preferred Shares
issued for a purchase price not to exceed $2 million, which may rank PARI
PASSU.
(3) Do any act or thing which would result in taxation of the
holders of Series A Preferred Shares under Section 305 of the Internal
Revenue Code of 1985, as amended (or any comparable provision of the Internal
Revenue Code as hereafter from time to time amended).
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by its authorized officer as of June____ , 1998.
MICROTEL INTERNATIONAL INC.
By:
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Carmine T. Oliva
President and Chief Executive Officer