Exhibit 3.1.4
ARTICLES OF AMENDMENT
OF
BRIAZZ, INC.
Pursuant to RCW 23B.06.020, the undersigned corporation adopts the
following Articles of Amendment to its Articles of Incorporation:
FIRST: The name of the corporation is BRIAZZ, INC. (the "Company").
SECOND: Article 2 of the Articles of Incorporation of the Company is
amended to add Section 2.9 Series G Stock, the text of which is attached hereto
as Exhibit A.
THIRD: The foregoing amendment was approved by the Board of Directors
of the Company on November 25, 2003, in accordance with the provisions of RCW
23B.06.020. Shareholder approval was not required.
Dated: November 25, 2003
BRIAZZ, INC.
By: /s/ Victor D. Alhadeff
----------------------------------------
Victor D. Alhadeff
Chief Executive Officer, Chief Financial
Officer, Secretary and Chairman
EXHIBIT A
2.9. Series G Stock
An aggregate of Three Million Six Hundred Thousand (3,600,000) shares
of Preferred Stock are hereby designated as Series G Convertible Preferred Stock
(the "Series G Stock").
2.9.1. Liquidation Rights
The holders of the Series G Stock shall not be entitled to participate
in respect thereof in any Liquidation Event. "Liquidation Event" shall mean, for
purposes of this Section 2.9, any distribution of the Company's assets to its
shareholders upon the voluntary or involuntary dissolution, liquidation or
winding up of the Company.
2.9.2. Voting Rights
Except as otherwise required under the Washington Business Corporation
Act, the holders of the Series G Stock shall not be entitled to vote.
2.9.3. Conversion Rights
The holder of the Series G Stock shall have the following rights with
respect to the conversion of Series G Stock into Common Stock:
(a) General.
(i) Voluntary Conversion. Each share of the Series G Stock may, at
the option of the holder, be converted at any time into ten (10) fully paid and
nonassessable shares of Common Stock (as adjusted in accordance with this
Section 2.9, the "Series G Conversion Amount") for a purchase price equal to
$0.10 per share of Common Stock (as adjusted in accordance with this Section
2.9, the "Series G Conversion Price"). If the fair market value (at the date of
calculation as set forth below) per security for which the Series G Stock is
being converted is greater than the then effective Series G Conversion Price, in
lieu of converting the Series G Stock for cash, the holder may elect to receive
securities or instruments equal to the value (as determined below) of the Series
G Stock (or the portion thereof being converted) by requesting that the Company
withhold securities or instruments otherwise deliverable pursuant to conversion,
in which event the Company shall issue to the holder a number of such securities
or instruments computed using the following formula:
X = Y (A-B)
-------
A
where:
X = the number of securities to be issued to the holder
Y = the number of securities purchasable under the shares of
Series G Stock being converted by such holder (at the date of
such calculation)
A = the fair market value per security or instruments of such
securities or instruments (at the date of such calculation)
B = the Series G Conversion Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value per security or
instrument shall be determined by the Company's Board of Directors in good
faith; provided, however, that where there exists a public market for the
Company's Common Stock at the time of such conversion, the fair market value per
share shall be the product of (i) the Market Price (as defined in Section
2.8.3(a)) and (ii) the number of shares of Common Stock into which each such
security or instrument is convertible or for which such security or instrument
is exchangeable or exercisable at the time of such conversion.
(ii) Mandatory Conversion. Each share of Series G Stock shall be
converted automatically, without any purchase price therefor, without any
further action by the holders of the Series G Stock and whether or not the
certificates representing such shares are surrendered to the Company or its
transfer agent, into one-millionth (1/1,000,000) of a share of Common Stock upon
the tenth anniversary of the initial issuance of the Series G Stock or in
accordance with Section 2.9.3(c)(ii).
(b) Adjustments to Series G Conversion Price and Series G Conversion Amount.
(i) Extraordinary Common Stock Event. Upon the happening of an
Extraordinary
Common Stock Event:
(A) The Series G Conversion Price shall, simultaneously with the
happening of such Extraordinary Common Stock Event, be adjusted by multiplying
the then effective Series G Conversion Price by a fraction, the numerator of
which shall be the number of fully-diluted shares of Common Stock outstanding
immediately prior to such Extraordinary Common Stock Event and the denominator
of which shall be the number of fully-diluted shares of Common Stock outstanding
immediately after such Extraordinary Common Stock Event without giving effect to
the adjustment in Series G Conversion Price contained in this Section
2.9.3.(b)(i)(A), and the product so obtained shall thereafter be the Series G
Conversion Price. The Series G Conversion Price, as so adjusted, shall be
readjusted in the same manner upon the happening of any successive Extraordinary
Common Stock Event or Events; and
(B) The Series G Conversion Amount shall, simultaneously with the
happening of such Extraordinary Common Stock Event, be adjusted by dividing the
then effective Series G Conversion Amount by a fraction, the numerator of which
shall be the number of fully-diluted shares of Common Stock outstanding
immediately prior to such Extraordinary Common Stock Event and the denominator
of which shall be the number of fully-diluted shares of Common Stock outstanding
immediately after such Extraordinary Common Stock Event without giving effect to
the adjustment in Series G Conversion Price contained in Section
2.9.3.(b)(i)(A), and the quotient so obtained shall thereafter be the Series G
Conversion Amount. The Series G Conversion Amount, as so adjusted, shall be
readjusted in the same manner upon the happening of any successive Extraordinary
Common Stock Event or Events.
"Extraordinary Common Stock Event" shall have the meaning given it in Section
2.8.3.(b)(i).
(ii) Distribution of Assets. In case the Company shall fix a
record date for the making of a distribution to all holders of shares of Common
Stock of assets (including securities of a corporation other than the Company)
or evidences of its indebtedness or securities (other than cash dividends or
cash distributions payable out of funds legally available therefor or dividends
payable in shares of Common Stock or distributions referred to in Section
2.9.3(b)(i) or Section 2.9.3(c)), the Series G Conversion Price to be in effect
after such record date shall be determined by multiplying the Series G
Conversion Price in effect immediately prior to such record date by a fraction,
of which the numerator shall be the Market Price per share of Common Stock five
business days prior to such record date, less the fair market value (as
determined by the Company's Board of Directors, whose determination shall be
conclusive absent manifest error, provided, however, that upon a written
request, within 10 business days of notice of such valuation by the Board of
Directors, of holders of a majority of the Series G Stock, for purposes of
determining the fair market value of the portion of the assets or evidences of
indebtedness or securities so to be distributed, the Company shall obtain the
opinion of a mutually agreeable investment banking or appraisal firm with
respect to such fair market value, which opinion shall be final and binding), of
the portion of the assets or evidences of indebtedness or securities so to be
distributed applicable to one share of Common Stock and of which the denominator
shall be such Market Price per share of Common Stock. Such adjustment shall be
made successively whenever such a record date is fixed. In the event that such
distribution is not so made, the Series G Conversion Price shall be that which
would then be in effect if such record date had not been fixed. No adjustment of
the Series G Conversion Price pursuant to this Section 2.9.3(b)(ii) shall have
the effect of increasing the Series G Conversion Price above the Series G
Conversion Price in effect immediately before such adjustment. Upon each
adjustment of the Series G Conversion Price pursuant to this Section
2.9.3(b)(ii), the then effective Series G Conversion Amount shall be adjusted to
equal the Series G Conversion Amount obtained from the formula in Section
2.9.3(b)(iii)(A) below. If any investment banking or appraisal firm's opinion
obtained at the request of holders of Series G Stock shall state that the per
share fair market value of the assets or evidences of indebtedness or securities
to be distributed is equal to or less than that determined by the Company's
Board of Directors, the holders of the Series G Stock shall bear the expense of
the firm within 15 days of the holder's receipt of a copy of such opinion and
shall reimburse the Company for any actual out-of-pocket expenses paid therefor.
Each holder shall bear the pro rata portion of the expenses specified in the
previous sentence as such holder's shares of Series G Stock is in relation to
all of the outstanding shares of Series G Stock; provided, however, if both the
holders of a majority of the Series F Stock and the holders of a majority of the
Series G Stock requested such opinion, then the holders of each of the Series F
Stock and Series G Stock shall bear the expenses of such opinion in the
proportion that such holders holdings of Series F Stock and Series G Stock bears
to all the outstanding shares of Series F Stock and Series G Stock.
(iii) Sale of Shares Below Series G Conversion Price. (A) If, at
any time or from time to time after the date hereof, the Company issues or
sells, or is deemed by the express provisions of this Section 2.9.3(b)(iii) to
have issued or sold, Additional Shares of Common Stock (as defined in Section
2.9.3(b)(iii)(D) hereof), other than as provided in Sections 2.9.3(b)(i),
2.9.3(b)(ii) or 2.9.3(c), for an Effective Price (as defined in Section
2.8.3(b)(iii)(E) hereof) less than the then effective Series G Conversion Price,
then and in each such case the then applicable Series G Conversion Price shall
be reduced to the Series G Conversion Price determined by dividing (A) an amount
equal to the sum of (1) the aggregate number of shares of Common Stock
outstanding immediately prior to such issue or sale multiplied by the then
existing Series G Conversion Price and (2) the aggregate consideration, if any,
received by the Company upon such issue or sale, by (B) the total aggregate
number of shares of Common Stock outstanding immediately after such issue or
sale. No adjustment of the Series G Conversion Price shall be made in an amount
less than $.01 per share, provided that any adjustments that are not required to
be made by reason of this sentence shall be carried forward and shall be taken
into account in any subsequent adjustment made to the Series G Conversion Price.
Except as provided in Section 2.9.3(b)(iii)(C), no adjustment of the Series G
Conversion Price pursuant to this Section 2.9.3(b)(iii) shall have the effect of
increasing the Series G Conversion Price above the Series G Conversion Price in
effect immediately before such adjustment. Upon each adjustment of the Series G
Conversion Price pursuant to Section 2.9.3(b)(ii) or (iii), the then effective
Series G Conversion Amount shall be adjusted to equal the Series G Conversion
Amount obtained from the following formula:
N' = N x E
-----
E'
where:
N' = the adjusted Series G Conversion Amount.
N = the Series G Conversion Amount prior to adjustment.
E' = the adjusted Series G Conversion Price.
E = the Series G Conversion Price prior to adjustment.
(B) For the purpose of making any adjustment required under this
Section 2.9.3(b)(iii), the aggregate consideration received by the Company for
any issue or sale of securities shall (I) to the extent it consists of cash, be
computed at the net amount of cash received by the Company after deduction of
any underwriting or similar commissions, compensations or concessions paid or
allowed by the Company in connection with such issue or sale but without
deduction of any expenses payable by the Company, (II) to the extent it consists
of property other than cash, be computed at the fair value of that property as
determined in good faith by the Board of Directors of the Company, and (III) if
Additional Shares of Common Stock, Convertible Securities (as defined in Section
2.8.3(b)(iii)) or rights or options to purchase either Additional Shares of
Common Stock or Convertible Securities are issued or sold together with other
stock or securities or other assets of the Company for a consideration which
covers both, be computed as the portion of the consideration so received that
may be reasonably determined in good faith by the Board of Directors of the
Company to be allocable to such Additional Shares of Common Stock, Convertible
Securities or rights or options.
(C) For the purpose of the adjustment required under this Section
2.9.3(b)(iii), if the Company issues or sells any rights or options for the
purchase of stock or Convertible Securities and if the Effective Price of
Additional Shares of Common Stock is less than the Series G Conversion Price, in
each case the Company shall be deemed to have issued, at the time of the
issuance of such rights or options or Convertible Securities, the maximum number
of Additional Shares of Common Stock issuable upon exercise or conversion
thereof and to have received as consideration for the issuance of such shares an
amount equal to the total amount of the consideration to be received by the
Company upon exercise or conversion of such rights, options or Convertible
Securities together with the consideration, if any, received by the Company for
the issuance of such rights, options or Convertible Securities. If the
Convertible Securities by their terms provide, with the passage of time or
otherwise, for any increase in the consideration payable to the Company, or
decrease in the number of shares of Common Stock issuable, upon the exercise,
conversion or exchange thereof, the Series G Conversion Price and Series G
Conversion Amount computed upon the original issue thereof, and any subsequent
adjustments based thereon, shall, upon such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease with respect to
such options, rights and securities not already exercised, converted or
exchanged before such increase or decrease became effective, but no further
adjustment to the Series G Conversion Price or Series G Conversion Amount shall
be made for the actual issuance of Common Stock upon the exercise of any such
options or rights or the conversion or exchange of such securities in accordance
with their terms. Further, upon the expiration or termination of any Convertible
Securities or the expiration of any options or rights related to such
Convertible Securities, the Series G Conversion Price and Series G Conversion
Amount shall forthwith be readjusted to such Series G Conversion Price and
Series G Conversion Amount as would have been obtained had the adjustment that
was made upon the issuance of such options, rights or securities, or options or
rights related to such securities, been made upon the basis of the issuance of
only the number of shares of Common Stock actually issued upon the exercise of
such options or rights, upon the conversion or exchange of such securities or
upon the exercise of the options or rights related to such securities.
(D) Solely for purposes of this Section 2.9, "Additional Shares of
Common Stock" shall mean all shares of Common Stock issued by the Company or
deemed to be issued pursuant to this Section 2.9.3(b)(iii), whether or not
subsequently reacquired or retired by the Company, other than:
(I) shares issued or issuable pursuant to, stock option agreements
and stock option, incentive and purchase plans of the Company, existing now or
adopted in the future as contemplated or permitted by the Securities Purchase
Agreement dated May 28, 2003 among the Company and the original holders of the
Series F Stock, as amended through the date of original issuance of the Series F
Stock;
(II) shares issued or issuable upon conversion, exercise or
exchange of securities outstanding as of the date of initial issuance of the
Series G Stock;
(III) shares issued pursuant to an Extraordinary Common Stock
Event or pursuant to Sections 2.8.3(b)(ii), 2.8.3(c), 2.9.3(b)(ii) or 2.9.3(c)
hereof;
(IV) Common Stock issued by the Company and approved by the
Company's Board of Directors to persons or entities with which the Company has
business relationships including, but not limited to, corporate partner
transactions and lease financings, provided such Common Stock issued is for a
primary purpose other than equity financing and provided that such securities
are designated as excluded from the definition of Additional Stock by the prior
vote or written consent of the holders holding a majority of the outstanding
shares of the Series G Stock; and
(V) additional shares of Common Stock that are issued or become
issuable upon conversion or exercise of other outstanding securities of the
Company as a result of the operation of anti-dilution provisions which are
contained in the original terms of such securities.
(E) The "Effective Price" has the meaning given it in Section
2.8.3(b)(iii)(E).
(F) If any event shall occur as to which the provisions of Section
2.9.3(b)(iii) are not strictly applicable (other than by reason of the
exceptions set forth in such provisions), but the failure to make any adjustment
would materially adversely affect the purchase rights represented by the Series
G Stock in accordance with the essential intent and principles of such Section,
then, in each such case, the Company shall appoint a mutually agreeable
investment banking firm that does not have a direct or material indirect
financial interest in the Company, which has not been, and, at the time it is
called upon to give independent financial advice to the Company, is not (and
none of its directors, officers, employees, affiliates or stockholders are) a
promoter, director or officer of the Company or any of its subsidiaries, which
shall give their opinion upon the adjustment, if any, on a basis consistent with
the essential intent and principles established in this Section 2.9.3(b)(iii)
necessary to preserve, without dilution, the purchase rights represented by the
Series G Stock. Upon receipt of such opinion, the Company will promptly mail a
copy thereof to the holders of the Series G Stock and shall make the adjustments
described therein. If the opinion shall state that no adjustment is required to
be made, the holders of the Series G Stock shall bear the expense of the firm of
independent investment bankers within 15 days of the holder's receipt of a copy
of such opinion and shall reimburse the Company for any actual out-of-pocket
expenses paid therefor. Each holder shall bear the pro rata portion of the
expenses specified in the previous sentence as such holder's shares of Series G
Stock is in relation to all of the outstanding shares of Series G Stock;
provided, however, if both the holders of the Series F Stock and the holders of
the Series G Stock requested such opinion, then the holders of each of the
Series F Stock and Series G Stock shall bear the expenses of such opinion in the
proportion that such holders holdings of Series F Stock and Series G Stock bears
to all the outstanding shares of Series F Stock and Series G Stock.
(G) The Company will not, by amendment of its articles of incorporation
or through any consolidation, merger, reorganization, transfer of assets,
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 of this Section
2.9.3(b)(iii), but will at all times in good faith assist in the carrying out of
all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holders of the Series G Stock
against dilution or other impairment. Without limiting the generality of the
foregoing, the Company (a) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock on the conversion of the Series G Stock
from time to time outstanding and (b) will not take any action which results in
any adjustment of the Series G Conversion Price if the total number of shares of
Common Stock issuable after the action upon the conversion of all of the Series
G Stock would exceed the total number of shares of Common Stock then authorized
by the Company's articles of incorporation and available for the purposes of
issue upon such conversion. A consolidation, merger, reorganization or transfer
of assets involving the Company covered by Section 2.9.3(c) shall not be
prohibited by or require any adjustment under this Section 2.9.3(b)(iii).
(c) Capital Reorganization or Reclassification.
(i) If the Common Stock issuable upon the conversion of Series G
Stock shall be changed into the same or a different number of shares of any
class or classes of stock of the Company, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend provided for in Section 2.9.3(b)(i)), then and in each such
event the holders of the Series G Stock shall have the right thereafter to
convert such shares into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification or
other change by holders of the number of shares of Common Stock into which such
shares of Series G Stock might have been converted immediately prior to such
reorganization, reclassification or change, all subject to further adjustment as
provided herein; and
(ii) In case of any consolidation or merger of the Company with
any other company (other than a wholly owned subsidiary of the Company), or in
case of any sale or transfer of all or substantially all of the assets of the
Company, or in case of any share exchange pursuant to which all of the
outstanding shares of Common Stock are converted into other securities or
property, the Company shall, prior to or at the time of such transaction, make
appropriate provision or cause appropriate provision to be made so that holders
of each share of Series G Stock then outstanding shall have the right thereafter
to convert such share of Series G Stock into the kind and amount of shares of
stock and other securities and property receivable upon such consolidation,
merger, sale, transfer or share exchange by a holder of the number of shares of
Common Stock into which such share of Series G Stock could have been converted
immediately prior to the effective date of such consolidation, merger, sale,
transfer or share exchange. If the property to be received upon such
consolidation, merger, sale, transfer or share exchange is not equity
securities, the Company shall give the holders of the Series G Stock ten (10)
business days prior written notice of the proposed effective date of such
transaction, and if any shares of Series G Stock have not been converted by or
on the effective date of such transaction, such shares of Series G Stock shall
be converted automatically immediately prior the effective date of such
transaction in accordance with Section 2.9.3.(a)(ii).
(d) Accountant's Certificate as to Adjustments Notice by the Company.
In each case of an adjustment or readjustment of the Series G Conversion Price
or the Series G Conversion Amount, the Company at its expense will furnish the
holders of the Series G Stock with a certificate, prepared by independent public
accountants of recognized standing if so required in writing by the majority of
the holders of the Series G Stock, showing such adjustment or readjustment and
stating in detail the facts upon which such adjustment or readjustment is based.
(e) Exercise of Conversion Privilege.
(i) Generally. The Series G Stock may not be converted pursuant to
Section 2.9.3 except pursuant to registration under the 1933 Act (as defined in
Section 2.8.3(e)(i)), and all applicable state securities laws, or pursuant to
available exemptions from such registration requirements. If reasonably
requested by the Company, the holders shall furnish the Company with an opinion
of counsel, reasonably satisfactory to the Company, that such conversion will
not require registration of such shares under the 1933 Act. Promptly after
receiving the materials required hereby and by Section 2.9.3(e)(ii) or the date
of mandatory conversion, as applicable, the Company shall issue and deliver to
the holders of the Series G Stock being converted, or, if permitted by
applicable securities laws, to the nominee or nominees of such holders, a
certificate or certificates as such holders may request for the number of whole
shares of Common Stock issuable in accordance with the provisions of this
Section 2.9.3 upon the conversion of the Series G Stock. Conversion shall be
deemed to have been effected immediately prior to the close of business on the
Series G Conversion Date (as defined below for voluntary conversions and for
mandatory conversions), and at such time, whether or not certificates
representing the shares being converted shall have been received by the Company
or its transfer agent in the case of a mandatory conversion, the rights of the
holders as holders of the converted shares of Series G Stock shall cease, and
the person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become the holder or holders of record of the shares of Common Stock
represented thereby.
(ii) Voluntary Conversion. Before the holders of the Series G
Stock shall be entitled to voluntarily convert such shares to Common Stock
pursuant to Section 2.9.3(a)(i), such holders shall surrender (w) the
certificate or certificates therefor, duly endorsed, (x) a written notice of
conversion containing the number of shares of Series G Stock being converted and
such representations, warranties and covenants of the holder to the Company as
the Company may reasonably request, (y) unless such notice includes
representations and warranties to the effect that the Series G Stock is being
converted by the original purchaser at a time when it is an "accredited
investor," as defined in Rule 501(a) under the 1933 Act, an opinion of counsel
of recognized standing in form and substance satisfactory to the Company or
other evidence satisfactory to the Company as to the availability of an
exemption from registration under the 1933 Act and applicable state securities
laws, and (z) payment in cash or check or bank draft payable to the order of the
Company or by cancellation of indebtedness of the Company to the holder, or, if
the Market Price as calculated in accordance with Section 2.8.3(a)(i) is less
than the Series G Conversion Price, by requesting that the Company withhold
securities or instruments otherwise deliverable pursuant to conversion of the
Series G Stock in accordance with the formula set forth in Section 2.9.3(a)(i),
at the office of the Company or of any transfer agent for the shares to be
converted. With respect to a voluntary conversion pursuant to Section
2.9.3(a)(i), the date when the foregoing materials are received by the Company
or a transfer agent for the shares to be converted shall be the "Series G
Conversion Date." Notwithstanding the foregoing, if a holder of shares of Series
G Stock conditions such voluntary conversion on the occurrence or non-occurrence
of a stated event, the date on which such event shall occur (or fail to occur,
as the case may be) shall be the "Series G Conversion Date."
(iii) Mandatory Conversion. The holders of Series G Stock
converted pursuant to the mandatory conversion provisions of Section
2.9.3(a)(ii) shall promptly surrender the certificates therefor, duly endorsed,
at the office of the Company or of any transfer agent for such shares and, if
other than the record holders of the converted shares, shall state the name or
names in which the certificate or certificates for shares of Common Stock are to
be issued. Whether or not such certificates have been so surrendered, with
respect to mandatory conversions pursuant to Section 2.9.3(a)(ii), the
applicable date specified in Section 2.9.3(a)(ii) for automatic conversion shall
be the "Series G Conversion Date."
(f) No Fractional Shares. No fractional shares of Common Stock or scrip
representing fractional shares shall be issued upon the conversion of shares of
Series G Stock. Upon such conversion, the number of shares of Common Stock to be
issued shall be rounded up to the nearest whole share.
(g) Partial Conversion. In the event some but not all of the shares of
Series G Stock represented by a certificate or certificates surrendered by a
holder are converted, the Company shall execute and deliver to the holder, at
the expense of the Company, a new certificate representing the shares of Series
G Stock that were not converted.
2.9.4. No Reissuance of Stock
No share or shares of Series G Stock converted, purchased or otherwise
acquired by the Company shall be reissued, and all such shares shall be
canceled, retired and eliminated from the shares that the Company shall be
authorized to issue. The Company may from time to time take such appropriate
corporate action as may be necessary to reduce the authorized number of shares
of Series G Stock accordingly.
2.9.5. Dividends
The holders of the Series G Stock shall not be entitled to receive
dividends.
2.9.6. Notices of Record Date
In the event of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any Liquidation Event or
any Extraordinary Common Stock Event, the Company shall mail or deliver, or
cause to be mailed or delivered, to the holders of Series G Stock a notice
specifying (i) the date on which any such reorganization, reclassification,
Extraordinary Common Stock Event or Liquidation Event is expected to become
effective and (ii) the time, if any, that is to be fixed, as to when the holders
of record of Common Stock (or other securities) shall be entitled to exchange
their shares of Common Stock (or other securities) for securities or other
property deliverable upon such reorganization, reclassification,
recapitalization or Liquidation Event. Such notice shall be mailed or delivered
at least twenty (20) days prior to the date specified in such notice on which
such action is to be taken.
2.9.7. Non-Transferability
Subject to the restrictions on transfer set forth in the Securities
Purchase Agreement among the Company and the original holders of the Series G
Stock, as amended through the date of original issuance of the Series G Stock,
the Series G Stock shall not be sold or otherwise transferred except under
circumstances that will not result in a violation of the 1933 Act or any state
securities laws.
2.9.8. Waivers
The obligations of the Company and the rights of the holders of the
Series G Stock may be amended, modified or waived (either generally or in a
particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely) only with the written consent of the
Company and each holder of the Series G Stock.