CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION
TRO LEARNING, INC., a corporation organized and existing under and by virtue of
the General Corporation of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors by the unanimous written consent of
its members, filed with the minutes of the Board, adopted a resolution proposing
and declaring advisable that the following amendment to the Certificate of
Designation of said corporation:
RESOLVED, that the Certificate of Designation of TRO LEARNING, INC.
for 540 shares of Series C Convertible Preferred Stock (the "Preferred Stock")
of the Company filed on January 13, 1999, be amended by changing Sections
5(a)(ii) and 5(a)(iii)(C) of the Certificate of Designation, so that, as
amended, Section 5(a)(ii) shall read as follows:
AUTOMATIC CONVERSION. Subject to the provisions in this
paragraph, all outstanding shares of Preferred Stock for which
conversion notices have not previously been received or for which
redemption has not been made or required hereunder shall be
automatically converted on January 13, 2009 (such date the "AUTOMATIC
CONVERSION DATE"), at the Conversion Price on the Automatic Conversion
Date. The conversion contemplated by this paragraph shall not occur
if (a) either (1) an Underlying Securities Registration Statement is
not then effective or (2) the Holder is not permitted to resell
Underlying Shares pursuant to Rule 144(k) promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), without
volume restrictions; (b) there are not sufficient shares of Common
Stock authorized and reserved for issuance upon such conversion; or
(c) the Company shall have defaulted on its covenants and obligations
hereunder or under the Purchase Agreement or Registration Rights
Agreement. Notwithstanding the foregoing, the period for conversion
under this Section shall be extended (on a day-for-day basis) and
therefore the Automatic Conversion Date shall be deemed to be the date
which is the number of Trading Days that the Purchaser is unable to
resell Underlying Shares under an Underlying Securities Registration
Statement due to (a) the Common Stock not being listed for trading on
the Nasdaq National Market ("NASDAQ") or on the New York Stock
Exchange, American Stock Exchange, or the Nasdaq SmallCap Market
(each, a "SUBSEQUENT MARKET"), (b) the failure of an Underlying
Securities Registration Statement to be declared effective by the
Securities and Exchange Commission (the "COMMISSION") by the
Effectiveness Date (as defined in the Registration Rights Agreement),
or (c) if an Underlying Securities Registration Statement shall have
been declared effective by the Commission, (x) the failure of such
Underlying Securities Registration Statement to remain effective at
all times thereafter as to all Underlying Shares, or (y) the
suspension of the Holder's ability
to resell Underlying Shares thereunder after the Automatic Conversion
Date originally noted above.
and so that, as amended, Section 5(a)(iii)(C) shall read as follows:
Notwithstanding anything to the contrary set forth herein,
the Company shall not be obligated to issue in excess of 1,151,525
shares of Common Stock upon conversion of Preferred Stock (the
"MAXIMUM SHARE AMOUNT"), which number shall be subject to adjustment
pursuant to Section 5, PROVIDED, however that in the event that the
1999 fiscal year end pre-tax earnings are (i) less than $3,068,000.00,
then the Maximum Share Amount shall be 1,703,470 shares of Common
Stock or (ii) equal to or greater than $3,068,000.00 but less than
$4,763,000.00, then the Maximum Share Amount shall be 1,362,776 shares
of Common Stock. In accordance with the Purchase Agreement such
number of shares of Common Stock shall be available on a pro rata
basis based upon the pro rata purchase price for the Preferred Stock
paid by the original Holders of Preferred Stock. Shares of Common
Stock issued (i) in connection with the Conversion Notice delivered on
January 13, 2001, (ii) on the Automatic Conversion Date pursuant to
SECTION 5(a)(ii), and (iii) in respect of penalties and liquidated
damages hereunder, shall not count towards the Maximum Share Amount
referenced in this paragraph and penalties and liquidated damages
shall be paid in cash unless otherwise agreed to by the Holder.
SECOND: That in lieu of a meeting and vote of the stockholders of the
Preferred Stock, said stockholders have given unanimous written consent to said
amendment in accordance with the provisions of Section 228 of the State of
Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, said TRO LEARNING, INC. has caused this
certificate to be signed by John Murray, its Executive Vice President and Chief
Financial Officer, this 5th day of March, 1999.
TRO LEARNING, INC.
By:
-------------------------
John Murray
Its: Executive Vice President and Chief
Financial Officer
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