Attached files
Exhibit 10.2
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATION,
PREFERENCES
AND RIGHTS
of
SERIES
A CONVERTIBLE PREFERRED STOCK
of
FUND.COM
INC.
(Pursuant
to Section 151 of the
Delaware
General Corporation Law)
FUND.COM INC., a corporation
organized and existing under the laws of the State of Delaware (the "Corporation"), the
certificate of incorporation of which was filed in the office of the Secretary
of State of Delaware on November 5, 2004 under the name Eastern Services
Holdings, Inc., as amended and restated on January 15, 2008 and as further
amended and restated on September 2, 2009, hereby certifies that the Board of
Directors of the Corporation (the "Board of Directors"
or the "Board"), pursuant to
authority of the Board of Directors as required by Section 151 of the Delaware
General Corporation Law, and in accordance with the provisions of its
Certificate of Incorporation and Bylaws, each as amended and restated through
the date hereof, has and hereby authorizes the filing of this Amended and
Restated Certificate of Designation, Preferences and Rights of the Series A
Convertible Preferred Stock of the Corporation, which was originally filed in
the office of the Secretary of State of Delaware on January 19, 2010, for
purposes of authorizing a series of the Corporation's previously authorized
10,000,000 shares of preferred stock, par value $0.001 per share (the "Preferred Stock"),
and hereby states the designation and number of shares, and fixes the relative
rights, preferences, privileges, powers and restrictions thereof, as
follows:
I.
DESIGNATION AND AMOUNT
The
designation of this series, which consists of Four Hundred Thousand (400,000)
shares of Preferred Stock, is the Series A Preferred Stock (the "Series A Preferred
Stock") and the stated value amount shall be One Hundred Dollars
($100.00) per share (the "Stated Value
").
II.
CERTAIN DEFINITIONS
Unless otherwise defined in this
Certificate of Designations, all capitalized terms, when used herein, shall have
the same meaning as is defined in the Subscription Agreement. For
purposes of this Certificate of Designation, in addition to the other terms
defined herein, the following terms shall have the following
meanings:
A
“Affiliates” of
any particular Person means any other Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by or under
common control with such Person. For purposes of this definition, “ control ” (including
the terms “ controlling,” “controlled by” and
“under common control
with”) means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise.
B. “Bloomberg” shall mean
Bloomberg, L.P. (or any successor to its function of reporting stock
prices).
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C. "Business Day" means
any day, other than a Saturday or Sunday, or a day on which banking institutions
in the State of New York are authorized or obligated by law, regulation or
executive order to close.
D. “Common Stock” means
the Class A common stock, $0.001 par value per share, of the Corporation,
together with any securities into which the Common Stock may be
reclassified.
E. “Conversion Price”
shall mean One Dollar and Fifty Cents ($1.50) per share, as the same may from
time to time be adjusted pursuant to this Certificate of
Designations.
F.
“Conversion
Shares” shall mean that number of shares of Class A Common Stock of the
Corporation issuable upon conversion of any or all all of the Series A Preferred
Shares issued pursuant to this Certificate of Designation, as shall be
calculated by dividing (a) the product of multiplying (i) the number of shares
of Series A Preferred Shares being converted by (ii) the $100.00 Stated Value of
each such Series A Preferred Share, by (ii) the Conversion Price then in
effect.
G. “Convertible
Securities” shall have the meaning as defined in Article VIII, Section
F(ii) of this Certificate of Designations.
H. “Dilutive Issuance”
shall have the meaning as defined in Article VIII, Section E of this Certificate
of Designations.
I. “Holder” shall mean
the collective reference to the any one or more holder(s) of Series A Preferred
Shares.
J. “Indebtedness” shall
mean the collective reference to (i) all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Corporation or any Subsidiary of
any kind or nature, present or future, whether or not for the payment of money,
whether arising by reason of an extension of credit, loan, guaranty,
indemnification or in any other manner, whether direct or indirect (including,
without limitation, those acquired by assignment, purchase, discount or
otherwise), whether absolute or contingent, due or to become due, and however
acquired, including all interest, charges, expenses, commitment, facility or
other fees, attorneys’ fees, and any other sum properly chargeable to the
Corporation under any of the foregoing, (ii) any and all other indebtedness
secured by the assets of the Corporation or any Subsidiary, (iii) any and all
other obligations designated as “senior indebtedness” or “secured indebtedness”
by the terms thereof, (iv) any and all leases which, under generally accepted
accounting principles would be capitalized on the balance sheet of the
Corporation or any Subsidiary, and (vv) any and all other indebtedness incurred
in connection with the amendment, restatement, refinancing or replacement of any
of the foregoing.
K. “Issuance Date" means
one (1) Business Day following the date of the filing of this Certificate of
Designations with the Secretary of State of the State of Delaware.
L. "Majority Holders"
means the Holders of a majority of the then outstanding Series A Preferred
Shares.
M. “Market
Price” means, as of any Trading Day, (i) the last reported sale prices for the
Common Stock on a national securities exchange which is the principal trading
market for the Common Stock as reported by Bloomberg or (ii) if no national
securities exchange is the principal trading market for the Common Stock, the
average of the last reported sale prices on the principal trading market for the
Common Stock as reported by Bloomberg, or (iii) if market value cannot be
calculated as of such date on any of the foregoing bases, the Market Price shall
be the fair market value as reasonably determined in good faith by (A) the Board
of Directors of the Corporation, or (B) at the option of a majority-in-interest
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of the
holders of the outstanding Series A Preferred Shares by an independent
investment bank of nationally recognized standing in the valuation of businesses
similar to the business of the Corporation. The manner of determining
the Market Price of the Common Stock set forth in the foregoing definition shall
apply with respect to any other security in respect of which a determination as
to market value must be made hereunder.
N. “National Securities
Exchange” means any one of the New York Stock Exchange, the NYSE Amex
Exchange, the NASDAQ Capital Market, the OTC Bulletin Board or any other
national securities exchange in the United States where the Corporation’s Common
Stock may trade.
O. “Common Stock Deemed
Outstanding” shall mean the number of Common Stock actually outstanding
(not including Common Stock held in the treasury of the Corporation), plus (x)
the maximum total number of Common Stock issuable upon the exercise of the
Options, as of the date of such issuance or grant of such Options, if any, and
(y) the maximum total number of Common Stock issuable upon conversion or
exchange of Convertible Securities, as of the date of issuance of such
Convertible Securities, if any.
P. “Original Issue Price”
means the U.S. One Hundred ($100.00) Dollars, representing the Stated Value of
each of the Series A Preferred Shares.
Q. “Stated Value” means
One Hundred Dollars ($100.00) per share of Series A Preferred
Shares.
R. “Subsidiary” shall
mean any Person means another Person, an amount of the voting securities, other
voting ownership or voting partnership interests of which is sufficient to elect
at least a majority of its Board of Directors or other governing body (or, if
there are no such voting interests, 50% or more of the equity interests of
which) is owned directly or indirectly by such first Person.
S. “Trading Day” shall
mean any day on which the 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.
III.
DIVIDENDS
A. The
Series A Preferred Shares shall not pay a dividend; provided that no cash
dividends or distributions shall be declared or paid or set apart for payment on
the Common Stock or any other Junior Securities unless such the cash dividend or
distribution is likewise declared, paid or set apart for payment on the Series A
Preferred Shares.
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IV.
RESERVATION OF SHARES OF COMMON STOCK
A. Reserved
Amount. Immediately following the Corporation’s filing
of an Amendment to its Certificate of Incorporation authorizing an increase to
its authorized Common Stock, the Corporation shall reserve not less
than 1,500,000 shares of its authorized but unissued Common Stock for issuance
upon conversion of the Series A Preferred Shares (including any shares that may
be issuable in connection with the adjustment provisions of this Certificate of
Designations), and, thereafter, the number of authorized but unissued Common
Stock so reserved (the "Reserved Amount")
shall at all times be sufficient to provide for the full conversion of all of
the Series A Preferred Shares (including any shares that may be issuable in
connection with the adjustment provisions of this Certificate of Designations)
outstanding at the current Conversion Price thereof, and any anticipated
adjustments to such Conversion Price.
V.
RANK
All
shares of the Series A Preferred Shares shall rank (i) senior to
the Corporation's Common Stock and any other class of securities which is
specifically designated as junior to the Series A Preferred Shares
(collectively, with the Common Stock, the "Junior Securities");
(ii) pari
passu with
any other class or series of Preferred Shares of the Corporation hereafter
created by the Board of Directors of the Corporation specifically ranking, by
its terms, on parity with the Series A Preferred Shares (the "Pari Passu
Securities"); and (iii) junior to
any (A) Indebtedness, or (B) other class or series of Preferred Shares or other
capital stock of the Corporation hereafter created by the Board of Directors of
the Corporation specifically ranking, by its terms, senior to the Series A
Preferred Shares (collectively, the "Senior Securities"),
in each case as to distribution of assets upon liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary.
VI.
LIQUIDATION PREFERENCE
A. In the event
of any liquidation, dissolution or winding up of the Corporation, either
voluntary or involuntary, distributions to the stockholders of the Corporation
shall be made in the following manner:
(i) After
payment or provision for payment of any distribution on any Senior Securities,
the Holders of the Series A Preferred Shares shall be entitled to receive, on a
pari passu basis with the holders of the Pari Passu Securities, and
prior and in preference to any distribution of any of the assets or surplus
funds of the Corporation to the holders of the Common Stock by reason of their
ownership of such stock, an amount equal to the sum of (x)One Hundred Dollars
($100.00) for each share of Series A Preferred Shares then held by them (the
"Initial Series A
Liquidation Preference Price"), and (y) an amount equal to all unpaid
dividends on the Series A Preferred Shares, if any. If upon the
occurrence of a liquidation, dissolution or winding up of the Corporation the
assets and funds thus distributed among the holders of the Series A Preferred
Shares and the Pari Passu Securities
shall be insufficient to permit the payment to such holders of the full
liquidation preference amount based on the Initial Series A Liquidation
Preference Price, 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 Shares and the Pari Passu Securities in
proportion to the preferential amount each such holder is otherwise entitled to
receive.
(ii) After
setting apart or paying in full the preferential amounts due pursuant to Section VI (A)(i)
above, the remaining assets of the Corporation available for distribution to
stockholders, if any, shall be distributed to the holders of the Series A
Preferred Shares, the Series A Preferred Shares and the Common Stock
on a pro rata basis, based on the number of Common Stock then held by each
Holder, as though all Series A Preferred Shares and Series A Preferred Shares
had been converted into Common Stock immediately prior to the date of such
distribution.
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VII.
CONVERSION
A. Optional
Conversion. Holders of Series A Preferred Stock may at their option
and any time or from time to time following the Issuance Date and upon not less
than 90 days prior written notice by the Holder to the Corporation, convert all
or any portion of their shares of Series A Preferred Stock into Common Stock
Conversion Shares of the Corporation at the Conversion Price then in effect (an
“Optional
Conversion”). In the event of any one or more conversions of
Series A Preferred Stock pursuant to this Article VII(A) (each a "Conversion") each
share of Series A Preferred Stock shall be convertible into a number of fully
paid and non-assessable shares of Common Stock determined in accordance with the
following formula:
The Original Issue Price
Conversion
Price then in effect
B. Mechanics of
Conversion. In order to effect an Conversion, a Holder of shares of
Series A Preferred Stock shall: (i) fax (or otherwise deliver) a copy of the
fully executed Notice of Conversion to the Corporation (Attention: Secretary)
and (ii) surrender or cause to be surrendered the original certificates
representing the Series A Preferred Stock being converted (the "Series A Preferred Stock
Certificates"), duly endorsed, along with a copy of the Notice of
Conversion as soon as practicable thereafter to the Corporation. Upon
receipt by the Corporation of a facsimile copy of a Notice of Conversion from a
Holder, the Corporation shall promptly send, via facsimile, a confirmation to
such Holder stating that the Notice of Conversion has been received, the date
upon which the Corporation expects to deliver the Common Stock issuable upon
such conversion and the name and telephone number of a contact person at the
Corporation regarding the conversion. The Corporation shall not be
obligated to issue shares of Common Stock upon a conversion unless either the
Series A Preferred Stock Certificates are delivered to the Corporation as
provided above, or the Holder notifies the Corporation that such Series A
Preferred Stock Certificates have been lost, stolen or destroyed and delivers
the documentation to the Corporation required by Article XII. B
hereof.
(i) Delivery of Common Stock
Upon Conversion. Upon the surrender of Series A Preferred Stock
Certificates accompanied by a Notice of Conversion, the Corporation (itself, or
through its transfer agent, as appropriate) shall, no later than the later of
(a) the fifth (5th) Business Day following the date of the Notice of Conversion
and (b) the Business Day immediately following the date of such surrender (or,
in the case of lost, stolen or destroyed certificates, after provision of
indemnity pursuant to Article XI B) (the "Delivery Period"),
issue and deliver (i.e., deposit with a nationally recognized overnight courier
service portage prepaid) to the Holder or its nominee (x) that number of shares
of Common Stock issuable upon conversion of such shares of Series A Preferred
Stock being converted and (y) a certificate representing the number of shares of
Series A Preferred Stock not being converted, if any. Notwithstanding
the foregoing, the Holder of Series A Preferred Stock shall, for all purposes,
be deemed to be a record owner of that number of shares of Common Stock issuable
upon conversion of those shares of Series A Preferred Stock set forth in the
Conversion Notice as at the date of such Conversion Notice. In
addition, if the Corporation's transfer agent is participating in the Depository
Trust Corporation ("DTC") Fast Automated
Securities Transfer program, and so long as the certificates therefore do not
bear a legend (pursuant to the terms of the Securities Subscription Agreement)
and the Holder thereof is not then required to return such certificate for the
placement of a legend thereon (pursuant to the terms of the Securities
Subscription Agreement), the Corporation shall cause its transfer agent to
promptly electronically transmit the Common Stock issuable upon conversion to
the Holder by crediting the account of the Holder or its nominee with DTC
through its Deposit Withdrawal Agent Commission
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system
("DTC
Transfer"). If the aforementioned conditions to a DTC Transfer
are not satisfied, the Corporation shall deliver as provided above to the Holder
physical certificates representing the Common Stock issuable upon conversion.
Further, a Holder may instruct the Corporation to deliver to the Holder physical
certificates representing the Common Stock issuable upon conversion in lieu of
delivering such shares by way of DTC Transfer.
(ii) Taxes. The
Corporation shall pay any and all taxes that may be imposed upon it respect to
the issuance and delivery of the shares of Common Stock upon the conversion of
the Series A Preferred Stock.
(iii) No Fractional
Shares. If any conversion of Series A Preferred Stock would
result in the issuance of a fractional share of Common Stock (aggregating all
shares of Series A Preferred Stock being converted pursuant to a given Notice of
Conversion), such fractional share shall be payable in cash based upon the
Series A Conversion Price per share, and the number of shares of Common Stock
issuable upon conversion of the Series A Preferred Stock shall be the next lower
whole number of shares. If the Corporation elects not to, or is
unable to, make such a cash payment, the Holder shall be entitled to receive, in
lieu of the final fraction of a share, one whole share of Common
Stock.
(iv) Conversion
Disputes. In the case of any dispute with respect to a
conversion, the Corporation shall promptly issue such number of shares of Common
Stock in accordance with subparagraph (i) above as are not disputed. If such
dispute involves the calculation of the Conversion Price, and such dispute is
not promptly resolved by discussion between the relevant Holder and the
Corporation, the Corporation and the Holder shall submit their disputed
calculations to an independent outside accountant via facsimile within three
Business Days of receipt of the Notice of Conversion. The accountant, at the
Corporation's sole expense, shall promptly audit the calculations and notify the
Corporation and the Holder of the results no later than three Business Days from
the date it receives the disputed calculations. The accountant's calculation
shall be deemed conclusive, absent manifest error. The Corporation shall then
issue the appropriate number of shares of Common Stock in accordance with
subparagraph (i) above.
(v) Payment of Accrued
Amounts. Upon conversion of any shares of Series A Preferred
Stock, all amounts then accrued or payable on such shares under this Certificate
of Designation (including, without limitation, all Dividends, if any) through
and including the date of the Notice of Conversion shall be paid by the
Corporation in cash. In the event that the Corporation elects to effect a
payment-in-kind, the number of fully paid and non-assessable shares of Common
Stock due shall be determined in accordance with the following
formula:
All Amounts Accrued or
Payable
Conversion
Price
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VIII.
ADJUSTMENTS
The
Conversion Price and the number of Conversion Shares shall be subject to
adjustment as follows:
A. Subdivision or Combination
of Common Stock. If the Corporation at any time subdivides (by
any stock split, stock dividend, recapitalization, reorganization,
reclassification or otherwise) the shares of Common Stock acquirable hereunder
into a greater number of shares, then, after the date of record for effecting
such subdivision, the Conversion Shares issuable upon conversion of the Series A
Preferred Stock will be proportionately increased and the Conversion Price in
effect immediately prior to such subdivision will be proportionately
reduced. If the Corporation at any time combines (by any reverse
stock split, recapitalization, reorganization, reclassification or otherwise)
the shares of Common Stock acquirable hereunder into a smaller number of shares,
then, after the date of record for effecting such combination, the
Conversion Shares issuable upon conversion of the Series A Preferred Stock will
be proportionately reduced and the Conversion Price in effect immediately prior
to such combination will be proportionately increased.
B. [Intentionally
Omitted].
C. Consolidation, Merger or
Sale. In case of any consolidation of the Corporation with, or
merger of the Corporation into any other corporation, or in case of any sale or
conveyance of all or substantially all of the assets of the Corporation other
than in connection with a plan of complete liquidation of the Corporation, then
as a condition of such consolidation, merger or sale or conveyance, adequate
provision will be made whereby the Holder of the Series A Preferred Stock will
have the right to acquire and receive upon conversion of the Series A Preferred
Stock in lieu of the shares of Common Stock immediately theretofore acquirable
upon the conversion of the Series A Preferred Stock, such shares of stock,
securities or assets as may be issued or payable with respect to or in exchange
for the number of shares of Common Stock immediately theretofore acquirable and
receivable upon conversion of the Series A Preferred Stock had such
consolidation, merger or sale or conveyance not taken place. In any
such case, the Corporation will make appropriate provision to insure that the
provisions of this Article VIII Section C hereof will thereafter be applicable
as nearly as may be in relation to any shares of stock or securities thereafter
deliverable upon the conversion of the Series A Preferred Stock. The
Corporation will not effect any consolidation, merger or sale or conveyance
unless prior to the consummation thereof, the successor corporation (if other
than the Corporation) assumes by written instrument the obligations under this
Article VIII Section C and the obligations to deliver to the Holder of the
Series A Preferred Stock such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Holder may be entitled to
acquire.
D. Distribution of
Assets. In case the Corporation shall declare or make any
distribution of its assets (including cash) to holders of Common Stock as a
partial liquidating dividend, by way of return of capital or otherwise, then,
after the date of record for determining shareholders entitled to such
distribution (on an “as converted” basis, as though all Series A Preferred Stock
had been converted into Common Stock immediately prior to the dividend
declaration date), the Holder of the Series A Preferred Stock shall be entitled
upon conversion of the Series A Preferred Stock for the purchase of any or all
of the shares of Common Stock subject hereto, to receive the amount of such
assets which would have been payable to the Holder had the Holder been the
holder of such shares of Common Stock on the record date for the determination
of shareholders entitled to such distribution.
E. Adjustment Due to Dilutive
Issuance. If, at any time following the Issuance Date when any
shares of Series A Preferred Stock are issued and outstanding, the Corporation
issues or sells, or in accordance with this Article VIII is deemed to have
issued or sold, any shares of Common Stock for no consideration or for a
consideration per share (before deduction of reasonable expenses or commissions
or
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underwriting
discounts or allowances in connection therewith) less than the Conversion Price
in effect on the date of such issuance (or deemed issuance) of such shares of
Common Stock (a “Dilutive Issuance”),
then immediately upon the Dilutive Issuance, the Conversion Price will be
reduced to the price determined by multiplying the Conversion Price in effect
immediately prior to the Dilutive Issuance by a fraction, (i) the numerator of
which is an amount equal to the sum of (x) the number of shares of Common Stock
Deemed Outstanding immediately prior to the Dilutive Issuance, plus (y) the
quotient of the aggregate consideration, calculated as set forth in Article
VIII, received by the Corporation upon such Dilutive Issuance divided by the
Conversion Price in effect immediately prior to the Dilutive Issuance, and (ii)
the denominator of which is the Common Stock Deemed Outstanding immediately
after the Dilutive Issuance; provided that only one adjustment will be made for
each Dilutive Issuance. No adjustment to the Conversion Price shall
have the effect of increasing the Conversion Price above the Conversion Price in
effect immediately prior to such adjustment.
F. Effect on Conversion Price
of Certain Events. For purposes of determining the adjusted
Conversion Price, the following will be applicable:
(i) Issuance of Rights or
Options. If the Corporation in any manner issues or grants any
warrants, rights or options, whether or not immediately exercisable, to
subscribe for or to purchase Common Stock or Convertible Securities (such
warrants, rights and options to purchase Common Stock or Convertible Securities
are hereinafter collectively referred to in this Article VIII as “Options”) and the
price per share for which Common Stock is issuable upon the exercise of such
Options is less than the Conversion Price on the date of issuance or grant of
such Options, then the maximum total number of shares of Common Stock issuable
upon the exercise of all such Options will, as of the date of the issuance or
grant of such Options, be deemed to be outstanding and to have been issued and
sold by the Corporation for such price per share. For purposes of the
preceding sentence, the “price per share for which Common Stock is issuable upon
the exercise of such Options” is determined by dividing (i) the total amount, if
any, received or receivable by the Corporation as consideration for the issuance
or granting of all such Options, plus the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the exercise of all such
Options, plus, in the case of Convertible Securities (as hereinafter defined)
issuable upon the exercise of such Options, the minimum aggregate amount of
additional consideration payable upon the conversion or exchange thereof at the
time such Convertible Securities first become convertible or exchangeable, by
(ii) the maximum total number of shares of Common Stock issuable upon the
exercise of all such Options (assuming full conversion or exchange of
Convertible Securities, if applicable). No further adjustment to the
Conversion Price will be made upon the actual issuance of such Common Stock upon
the exercise of such Options or upon the conversion or exchange of Convertible
Securities issuable upon exercise of such Options.
(ii) Issuance of Convertible
Securities. If the Corporation in any manner issues or sells
any other series or classes of Preferred Stock (other than the Series A
Preferred Stock) or any notes, debentures, evidences of Indebtedness or other
securities that are convertible into or exchangeable for Common Stock (“Convertible
Securities”), whether or not immediately convertible (other than where
the same are issuable upon the exercise of Options) and the price per share for
which Common Stock is issuable upon such conversion or exchange is less than the
Conversion Price on the date of issuance, then the maximum total number of
shares of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities will, as of the date of the issuance of such Convertible
Securities, be deemed to be outstanding and to have been issued and sold by the
Corporation for such price per share. For the purposes of the
preceding sentence, the “price per share for which Common Stock is issuable upon
such conversion or exchange” is determined by dividing (i) the total amount, if
any, received or receivable by the Corporation as consideration for the issuance
or sale of all such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Corporation upon the conversion
or exchange thereof at the time such Convertible Securities first become
convertible or
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exchangeable,
by (ii) the maximum total number of shares of Common Stock issuable upon the
conversion or exchange of all such Convertible Securities. No further
adjustment to the Conversion Price will be made upon the actual issuance of such
Common Stock upon conversion or exchange of such Convertible
Securities.
(iii) Change in Option Price or
Conversion Rate. If there is a change at any time in (i) the
amount of additional consideration payable to the Corporation upon the exercise
of any Options; (ii) the amount of additional consideration, if any, payable to
the Corporation upon the conversion or exchange of any Convertible Securities;
or (iii) the rate at which any Convertible Securities are convertible into or
exchangeable for Common Stock (other than under or by reason of provisions
designed to protect against dilution), the Conversion Price in effect at the
time of such change will be readjusted to the Conversion Price which would have
been in effect at such time had such Options or Convertible Securities still
outstanding provided for such changed additional consideration or changed
conversion rate, as the case may be, at the time initially granted, issued or
sold.
(iv) Treatment of Expired Options
and Unexercised Convertible Securities. If, in any case, the
total number of shares of Common Stock issuable upon exercise of any Option or
upon conversion or exchange of any Convertible Securities is not, in fact,
issued and the rights to exercise such Option or to convert or exchange such
Convertible Securities shall have expired or terminated, the Conversion Price
then in effect will be readjusted to the Conversion Price which would have been
in effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual number of shares
of Common Stock issued upon exercise or conversion thereof), never been
issued.
(v) Calculation of Consideration
Received. If any Common Stock, Options or Convertible
Securities are issued, granted or sold for cash, the consideration received
therefor for purposes hereof will be the amount received by the Corporation
therefor, before deduction of reasonable commissions, underwriting discounts or
allowances or other reasonable expenses paid or incurred by the Corporation in
connection with such issuance, grant or sale. In case any Common
Stock, Options or Convertible Securities are issued or sold for a consideration
part or all of which shall be other than cash, the amount of the consideration
other than cash received by the Corporation will be the fair value of such
consideration, except where such consideration consists of securities, in which
case the amount of consideration received by the Corporation will be the Market
Price thereof as of the date of receipt. In case any Common Stock,
Options or Convertible Securities are issued in connection with any acquisition,
merger or consolidation in which the Corporation is the surviving corporation,
the amount of consideration therefor will be deemed to be the fair value of such
portion of the net assets and business of the non-surviving corporation as is
attributable to such Common Stock, Options or Convertible Securities, as the
case may be. The fair value of any consideration other than cash or
securities will be determined in good faith by the Board of Directors of the
Corporation.
(G) Exceptions to
Adjustments. Notwithstanding anything contained to the
contrary in this Article VIII, no adjustment to the Conversion Price or
Conversion Shares pursuant to Section (E) of this Article VIII will be
made:
(i) upon
the issuance of shares of Common Stock or Options or Convertible Securities to
eligible Persons pursuant to any stock or option plan duly adopted by the Board
of Directors of the Corporation; or
(ii) upon
the issuance of shares of Common Stock issuable upon the exercise of Options or
conversion of any Convertible Securities that are outstanding as of the date of
filing of this Certificate of Designations, including, without limitation, the
Series A Preferred Stock; or
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(iii) the issuance (not for capital raising
purposes) of shares of Common Stock, Convertible Securities or Options either to
(A) consummate any acquisition of the assets, securities or business of any
other Person, or (B) financial institutions, lessors or vendors in connection
with commercial credit or service arrangements, equipment financings or similar
transactions; in each case, as approved by the Board of Directors of the
Corporation.
(H) Notice of
Adjustment. Upon the occurrence of any event which requires
any adjustment of the Conversion Price, then, and in each such case, the
Corporation shall give notice thereof to the Holder of the Series A Preferred
Stock, which notice shall state the Conversion Price resulting from such
adjustment and the increase or decrease in the number of Conversion Shares
purchasable at such price upon exercise, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is
based. Such calculation shall be certified by the Chief Financial
Officer of the Corporation.
(I) Minimum Adjustment of
Conversion Price. No adjustment of the Conversion Price shall
be made in an amount of less than 1% of the Conversion Price in effect at the
time such adjustment is otherwise required to be made, but any such lesser
adjustment shall be carried forward and shall be made at the time and together
with the next subsequent adjustment which, together with any adjustments so
carried forward, shall amount to not less than 1% of such Conversion
Price.
(J) No Fractional
Shares. No fractional shares of Common Stock are to be issued
upon the conversion of the Series A Preferred Stock, but the Corporation shall
pay a cash adjustment in respect of any fractional share which would otherwise
be issuable in an amount equal to the same fraction of the average Market Price
per share of the Common Stock for the five (5) Trading Days immediately prior to
the date of such exercise.
(K) Other
Notices. In case at any time:
(i) the
Corporation shall declare any dividend upon the Common Stock payable in shares
of stock of any class or make any other distribution (including dividends or
distributions payable in cash out of retained earnings) to the holders of the
Common Stock;
(ii) the
Corporation shall offer for subscription pro rata to the holders of the Common
Stock any additional shares of stock of any class or other rights;
(iii) there
shall be any capital reorganization of the Corporation, or reclassification of
the Common Stock, or consolidation or merger of the Corporation with or into, or
sale of all or substantially all its assets to, another corporation or
entity;
(iv) there
shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Corporation;
then, in
each such case, the Corporation shall give to the Holder of the Series A
Preferred Stock (a) notice of the date on which the books of the Corporation
shall close or a record shall be taken for determining the holders of Common
Stock entitled to receive any such dividend, distribution, or subscription
rights or for determining the holders of Common Stock entitled to vote in
respect of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up of the Corporation, notice of the date (or, if not
then known, a reasonable approximation thereof by the Corporation) when the same
shall take place. Such notice shall also specify the date on which
the holders of Common Stock shall be entitled to receive such dividend,
distribution, or subscription rights or to
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exchange
their Common Stock for stock or other securities or property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, as the case may be. Such notice shall be
given at least thirty (30) days prior to the record date or the date on which
the Corporation’s books are closed in respect thereto. Failure to
give any such notice or any defect therein shall not affect the validity of the
proceedings referred to in clauses (i), (ii), (iii) and (iv) above.
IX.
VOTING RIGHTS
A. Class Voting
Rights. Holders
of the Series A Preferred Shares shall vote together as a separate class on all
matters which impact the rights, value or conversion terms, or ranking of the
Series A Preferred Shares, as provided herein.
B. Voting with Holders of
Common
Stock. Holders of the Series A Preferred
Shares shall vote on an “as converted” basis, together as a single class, with
the Common Stock, on all matters requiring the approval, ratification or consent
of holders of Common Stock of the Corporation.
X.
PROTECTION PROVISIONS
The
Corporation shall not, without first obtaining the affirmative vote or written
consent of the Majority Holders of the Series A Preferred Shares, voting or
consenting as a separate class, given in person or by proxy:
A. make
any amendment or modification of the Corporation’s Restated Memorandum in any
manner which has or could reasonably be expected to have, an adverse effect on
the rights, privileges and designations of the Series A Preferred Shares;
or
B. amend
or modify in any manner this Series A Certificate of Designation in any manner
which has or could reasonably be expected to have, an adverse effect on the
rights, privileges and designations of the Series A Preferred
Shares.
XI.
MISCELLANEOUS
A. Cancellation of Series A
Preferred Shares If any Series A Preferred Shares are converted pursuant
to this Series A Certificate of Designations, the shares so converted or
redeemed shall be canceled, shall return to the status of authorized, but
unissued Series A Preferred Shares of no designated series, and shall not be
issuable by the Corporation as Series A Preferred Shares.
B. Lost or Stolen
Certificates. Upon receipt by the Corporation of (i) evidence of the
lost, theft, destruction or mutilation of any Series A Preferred Shares
Certificate(s) and (ii) (y) in the case of loss, theft or destruction, indemnity
(without any bond or other security) reasonably satisfactory to the Corporation,
or (z) in the case of mutilation, the Series A Preferred Shares Certificate(s)
(surrendered for cancellation), the Corporation shall execute and deliver new
Series A Preferred Shares Certificate(s) of like tenor and
date. However, the Corporation shall not be obligated to reissue such
lost, stolen, destroyed or mutilated Series A Preferred Shares Certificate(s) if
the Holder contemporaneously requests the Corporation to convert such Series A
Preferred Shares.
C Waiver
Notwithstanding any provision in this Certificate of Designation to the
contrary, any provision contained herein and any right of the Holders of Series
A Preferred Shares granted hereunder may be waived as to all Series A Preferred
Shares (and the Holders thereof) upon the written consent of the Majority
Holders, unless a higher percentage is required by applicable law, in which case
the written consent of the Holders of not less than such higher percentage of
Series A Preferred Shares shall be required.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the
undersigned declares under penalty of perjury under the laws of the State of
Delaware that he has read the foregoing Certificate of Designation and knows the
contents thereof, and that he is duly authorized to execute the same on behalf
of the Corporation, this 25th day
of January 2010.
FUND.COM
INC.
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By:
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/s/ Gregory Webster | |
Name: Gregory Webster | |||
Title: Chief Executive Offixcer |
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