Exhibit 4
CERTIFICATE OF DESIGNATIONS,
POWERS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL
AND OTHER SPECIAL RIGHTS
OF THE SERIES A CONVERTIBLE PREFERRED STOCK
OF
MARKET CENTRAL, INC.
Pursuant to Section 151
of the Delaware General Corporation Law
Market Central, Inc. (the "Corporation"), organized and existing under
the General Corporation Law of the State of Delaware does, by its President and
its Secretary and under its corporate seal, hereby certify that pursuant to the
authority contained in Article IV of its Certificate of Incorporation, and in
accordance with the provisions of Section 151 of the Delaware General
Corporation Law, its Board of Directors has adopted the following resolution
creating the following classes and series of the Corporation's $.001 par value
Convertible Preferred Stock and determining the voting powers, designations,
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations and restrictions thereof, of such
classes and series:
RESOLVED, that, pursuant to authority conferred upon the Board of
Directors by the Amended and Restated Certificate of Incorporation of the
Corporation (the "Certificate of Incorporation"), there is hereby created the
following class of Convertible Preferred Stock:
o 2,251,407 shares shall be designated Series A Convertible
Preferred Stock, par value $.001 per share (the "Series A
Preferred Stock").
The designations, powers, preferences, and relative, participating,
optional and other special rights and the qualifications, limitations and
restrictions of the Series A Preferred Stock in addition to those set forth in
the Certificate of Incorporation shall be as follows:
1. Voting Rights. Except as otherwise required by law, no holder of
Series A Preferred Stock shall be entitled to vote on any matter.
2. Dividends. Holders of Series A Preferred Stock are entitled to a
four percent (4%) cumulative annual dividend on the Series A Liquidation Value,
payable when, as and if declared by the Board of Directors of the Corporation,
in additional shares of Series A Preferred Stock determined by dividing the
amount of such dividend by the Series A Liquidation Value. Such dividends shall
begin to accrue on December 15, 2003, except to the extent that dividends accrue
on the portion of a holder's Series A Liquidation Value resulting from the
issuance of additional shares of Series A Preferred Stock as dividends, in which
event such dividends shall accrue from the date of issuance of such additional
shares of Series A Preferred Stock. All dividends declared upon the Series A
Preferred Stock shall be declared pro rata per share. Further, the Corporation
may make distributions on the Junior Securities, provided that no distributions
(as defined below) shall be declared or paid with respect to the Common Stock or
other securities that are pari pasu or junior to the Series A Preferred Stock
(the "Junior Securities") without there being contemporaneously declared and
paid a dividend on the Series A Preferred Stock (with the same record and
payment date) so that each share of Series A Preferred Stock shall receive a
dividend equal to the distribution paid per share of the Junior Securities times
the number of shares of the Junior Securities into which such share of Series A
Preferred Stock is then convertible. For the purpose of this Section 2, unless
the context otherwise requires, "distribution" shall mean the transfer of cash
or property by the Corporation without consideration, whether by way of dividend
or otherwise, payable other than in Junior Securities, or the purchase or
redemption of shares of the Corporation for cash or property, including any such
transfer, purchase or redemption by a subsidiary of the Corporation.
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3. Liquidation.
(a) Liquidation Value. In the event of any Liquidation Event
prior to a Qualified Offering, the holders of the Series A Preferred Stock shall
be entitled pari passu to be paid, before any distribution or payment is made
upon any Common Stock, an amount in cash equal to the Series A Liquidation Value
of each share of Series A Preferred Stock held by them, and no more. If such
payment shall have been made in full to the holders of Series A Preferred Stock,
the remaining assets of the Corporation shall be distributed among the holders
of Junior Securities. If upon any Liquidation Event prior to a Qualified
Offering, the Corporation's assets to be distributed among the holders of the
Series A Preferred Stock are insufficient to permit payment in full of the
Series A Liquidation Value to such holders, such assets shall be distributed
ratably among them based upon the aggregate Series A Liquidation Value of the
Series A Preferred Stock held by each holder.
(b) Notice of Liquidation Event. At least thirty (30) days'
previous notice by mail, postage prepaid, shall be given to the holders of
record of the Series A Preferred Stock of any Liquidation Event, such notice to
be addressed to each such holder at the address of such holder appearing on the
books of the Corporation or given by such holder 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 the anticipated date fixed for the Liquidation Event, the Series A
Liquidation Value, and shall call upon such holder to surrender to the
Corporation on said date at the place designated in the notice such holder's
certificate or certificates representing their Series A Preferred Stock;
provided, however, that failure to so surrender such certificate or certificates
shall not affect such holder's rights under this Section 3.
(c) Adjustment to Series A Liquidation Value. If the
Corporation subdivides (by any stock split, stock dividend, recapitalization or
otherwise) Series A Preferred Stock into a greater number of shares, the Series
A Liquidation Value of such Series A Preferred Stock will be proportionately
reduced, and if the Corporation combines (by reverse stock split or otherwise)
Series A Preferred Stock into a lesser number of shares, the Series A
Liquidation Value of such Series A Preferred Stock will be proportionately
increased.
4. Conversion.
(a) Conversion and Conversion Ratio. Effective at any time after one
year from the date of issuance (the "Conversion Date"), each share of Series A
Preferred Stock may, at the sole discretion of the holder of such shares of
Series A Preferred Stock, be converted into one (1) share of Common Stock (the
"Conversion Ratio"). Such Conversion shall be exercised by the holder giving the
Corporation written notice of the Conversion. Thereafter, the Corporation shall
deliver to the holder a certificate evidencing such shares of Common Stock
against delivery to the Corporation at its principal office of the certificate,
duly endorsed, representing the shares of Series A Preferred Stock held by such
holder. Notwithstanding anything to the contrary herein, upon receipt of notice
of a Liquidation Event before a Qualified Offering, each holder of shares of
Series A Preferred Stock, at his sole discretion, shall have not less than
thirty (30) days to provide such written notice and deliver such certificates to
the Corporation as set forth above for conversion.
(b) Reorganization, Reclassification, Consolidation, Merger or Sale,
etc.
(i) If the Corporation at any time subdivides (by any stock split,
stock dividend, recapitalization or otherwise) one or more classes of its
outstanding shares of its Common Stock into a greater number of shares, the
Conversion Ratio in effect immediately prior to such subdivision will be
proportionately reduced, and if the Corporation at any time combines (by reverse
stock split or otherwise) one or more classes of its outstanding shares of its
Common Stock, the Conversion Ratio in effect immediately prior to such
combination will be proportionately increased concurrently with the
effectiveness of such event.
(ii) In case the Corporation shall declare a dividend or make any
other distribution upon any stock of the Corporation payable in Common Stock or
options to purchase shares of Commons Stock or securities convertible into
shares of Common Stock for no consideration without making a ratable
distribution thereof to holders of Series A Preferred Stock (based upon the
number of shares of Common Stock into which such Series A Preferred Stock would
be convertible, assuming Conversion), then the Conversion Ratio in effect
immediately prior to the declaration of such dividend or distribution shall be
proportionately reduced, concurrently with the effectiveness of such
declaration.
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(iii) Any capital reorganization, reclassification, consolidation,
merger or sale of all or substantially all of the Corporation's assets to
another Person which is effected in such a way that holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock is referred
to herein as an "Organic Change." Prior to the consummation of any Organic
Change, the Corporation will make appropriate provisions to insure that each of
the holders of Series A Preferred Stock will thereafter have the right to
acquire and receive such shares of stock, securities or assets as such holder
would have received in connection with such Organic Change if such holder had
converted its Series A Preferred Stock immediately prior to such Organic Change.
The Corporation will not effect any such consolidation, merger or sale, unless
prior to the consummation thereof, the successor corporation (if other than the
Corporation) resulting from consolidation or merger or the Corporation
purchasing such assets assumes by written instrument the obligation to deliver
to each such holder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such holder may be entitled to acquire.
(c) Fractional Shares. No payment or adjustment shall be made upon any
conversion on account of any cash dividends paid or payable on the Common Stock
issued upon such conversion. If any fractional interest in a share of Common
Stock is deliverable upon any such conversion, the Corporation, in lieu of
delivering fractional shares thereof, shall pay to the holder surrendering the
Series A Preferred Stock for conversion an amount in cash equal to the Market
Value of such fractional interest as of the date of conversion.
(d) Stock to be Reserved. The Corporation will at all times reserve and
keep available out of its authorized Common Stock or its treasury shares, solely
for the purpose of issue upon the conversion of the Series A Preferred Stock as
herein provided, such number of shares of Common Stock as shall then be issuable
upon the conversion of all outstanding shares of Series A Preferred Stock. The
Corporation covenants that all shares of Common Stock which shall be so issued
shall be duly and validly issued and fully paid and nonassessable and free from
all liens and charges with respect to the issue thereof. The Corporation will
take all such action as may be necessary to assure that all such shares of
Common Stock may be so issued without violation of any applicable law or
regulation.
(e) No Reissuance of Series A Preferred Stock. Shares of Series A
Preferred Stock which are converted into shares of Common Stock as provided
herein or which are repurchased by the Corporation shall not be reissued and the
authorized number of Series A Preferred Stock shall be reduced upon the
conversion of such Series A Preferred Stock or the repurchase thereof by the
Corporation by the number of shares of such converted or repurchased Series A
Preferred Stock.
(f) Issue Tax. The issuance of certificates for shares of Common Stock
upon conversion of the Series A Preferred Stock shall be made without charge to
the holders thereof for any issuance tax in respect thereof, provided that the
Corporation shall not be required to pay any income or similar taxes of a holder
arising in connection with a conversion or any tax that may be payable in
respect of any transfer involved in the issuance and delivery of any
certificates in a name other than that of the holder of the Series A Preferred
Stock which is being converted.
(g) Closing of Books. The Corporation will at no time close its
transfer books against the transfer of any Series A Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares of
Series A Preferred Stock in any manner that interferes with the timely
conversion of such Series A Preferred Stock.
5. Optional Redemption. At any time after December 14, 2005, the
Company may redeem all, but not less than all, of the Series A Preferred Shares
by delivery of written notice (the "Redemption Notice") to each holder of Series
A Preferred Shares of such redemption. On the effective date set forth in the
Optional Redemption Notice, but not later than thirty (30) days following the
date of the Optional Redemption Notice, the then outstanding shares of Series A
Preferred Shares shall become immediately redeemable and the Company shall
purchase each holder's outstanding share of Series A Preferred Shares in
exchange for cash in an amount per share equal to the Series A Liquidation
Value. Notwithstanding anything to the contrary herein, upon receipt of a
Redemption Notice, each holder of shares of Series A Preferred Stock, at his
sole discretion, shall have the right to give the Corporation written notice of
the Conversion of their shares of Series A Preferred Stock in accordance with
the terms of Section 4(a).
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6. Incidental Registrations. If the Corporation at any time proposes to
conduct a Qualified Offering, it will give prompt written notice to all holders
of Series A Preferred Stock of its intention to do so. Upon the written request
of any such holder made within 30 days after the receipt of any such notice
(which request shall specify the number of Common Stock intended to be disposed
of by such holder and the intended method or methods of disposition thereof) and
the Conversion of such shares of Series A Preferred Stock in accordance with the
terms of Section 3(a) hereof, the Corporation will use its best efforts to
effect the registration under the Securities Act of 1933, as amended, of all
such Common Stock in accordance with such intended method or methods of
disposition, provided that:
(a) if, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Corporation shall determine for any reason not to register such equity
securities, the Corporation may, at its election, give written notice of such
determination to each holder of Series A Preferred Stock and, thereupon, shall
not be obligated to register any such Common Stock in connection with such
registration (but shall nevertheless pay the Registration Expenses in connection
therewith); and
(b) if a registration pursuant to this Section 6 involves an
underwritten offering, and the managing underwriter (or, in the case of an
offering that is not underwritten, an investment banker) shall advise the
Corporation in writing (with a copy to each holder of Series A Preferred Stock
requesting registration thereof) that, in its opinion, the number of securities
requested and otherwise proposed to be included in such registration exceeds the
number which can be sold in such offering, the Corporation will include in such
registration to the extent of the number which the Corporation is so advised can
be sold in such offering, first, the securities if any, being sold by the
Corporation, and second, the Common Stock of the holders of Series A Preferred
Stock requested to be included in such registration pro rata, among such
holders, on the basis of the number of such Common Stock requested to be
included.
The Corporation will pay all registration expenses in connection with
each registration of Common Stock requested pursuant to this Section 6, provided
that any seller thereunder shall pay all registration expenses to the extent
required to be paid by such seller under applicable law and provided further
that underwriting commissions shall be paid pro rata by the sellers in such
registration, based on the number of shares of Common Stock being sold.
7. Definitions.
For purposes herein, the following terms shall have the meanings
indicated:
"Board of Directors" shall mean the Board of Directors of the
Corporation.
"Common Stock" means, collectively, the Corporation's Common Stock, par
value $.001 per share, and any capital stock of any class of the Corporation
hereafter authorized which is not limited to a fixed sum or percentage of stated
value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation.
"Liquidation Event" shall mean any liquidation, dissolution, or winding
up of the Corporation, whether voluntary or involuntary.
"Market Value" of any security means the average of the closing prices
of such security's sale on all securities exchanges on which such security may
at the time be listed, or, if there has been no sales on any such exchange on
any day, the average of the highest bid and lowest asked prices on all such
exchanges at the end of such day, or, if on any day such security is not so
listed, the average of the representative bid and asked prices quoted in the
Nasdaq System as of 4:00 P.M., New York time, or, if on any day such security is
not quoted in the Nasdaq System, the average of the highest bid and lowest asked
prices on such day in the domestic over-the-counter market as reported by the
National Quotation Bureau, Incorporated, or any similar successor organization.
If at any time such security is not listed on any securities exchange or quoted
in the Nasdaq System or the over-the-counter market, the "Market Value" will be
the fair value thereof determined jointly by the Corporation and the holders of
a majority of the Series A Preferred Stock then outstanding. If such parties are
unable to reach agreement within a reasonable period of time, such fair value
will be determined by an independent appraiser jointly selected by the
Corporation and the holders of a majority of the Series A Preferred Stock then
outstanding. If such Persons are unable to agree upon an appraiser, such
appraiser will be selected by (i) an independent appraiser selected by the
Corporation, and (ii) an independent appraiser selected by the holders of a
majority of the outstanding Series A Preferred Stock; the cost of such
independent appraiser determining the fair value of such consideration shall be
borne by the Corporation.
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"Person" means an individual, a partnership, a corporation, a trust, a
joint venture, an unincorporated organization or any department or agency
thereof.
"Qualified Offering" means the closing of a public offering of shares
of the Common Stock of the Corporation in an amount of not less than $5,000,000
prior to commissions and offering expenses pursuant to an effective registration
statement on a form prescribed by the SEC Commission (other than Form S-4 or
Form S-8 or any successor or replacement form for any such form).
"Series A Liquidation Value" of any share of Series A Preferred Stock
as of any particular date will be equal to $1.3325, subject to adjustment as
provided for herein.
"Series A Preferred Stock" shall mean the Corporation's Series A
Convertible Preferred Stock, par value $.001 per share.
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IN WITNESS WHEREOF, Market Central, Inc. has caused this Certificate to
be duly executed by the undersigned this 4th day of December, 2003.
Market Central, Inc.
By: /s/ Terrance J. Liefheit
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Name: Terrance J. Liefheit
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Title: President
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