Attached files
file | filename |
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EX-3.1 - ELITE PHARMACEUTICALS INC /NV/ | v189686_ex3-1.htm |
EX-10.1 - ELITE PHARMACEUTICALS INC /NV/ | v189686_ex10-1.htm |
EX-10.3 - ELITE PHARMACEUTICALS INC /NV/ | v189686_ex10-3.htm |
EX-10.2 - ELITE PHARMACEUTICALS INC /NV/ | v189686_ex10-2.htm |
EX-99.1 - ELITE PHARMACEUTICALS INC /NV/ | v189686_ex99-1.htm |
8-K - ELITE PHARMACEUTICALS INC /NV/ | v189686_8k.htm |
AMENDED
CERTIFICATE
OF DESIGNATIONS
OF
THE
SERIES E
CONVERTIBLE PREFERRED STOCK
OF
ELITE
PHARMACEUTICALS, INC.
__________________________________________________
PURSUANT
TO SECTION 151 OF THE
DELAWARE
GENERAL CORPORATION LAW
__________________________________________________
ELITE
PHARMACEUTICALS, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the “Corporation”), does
hereby certify as follows:
First: The
Corporation filed a Certificate of Designation of Preferences, Rights and
Limitations of the Series E Convertible Preferred Stock, par value US$0.01 per
share (the “Series E
Preferred Stock”), with the Secretary of State of the State of Delaware
on June 3, 2009 (the “Original Series E
Certificate of Designation”).
Second: The Board of Directors of
the Corporation (the “Board”) duly adopted
the following resolutions setting forth amendments to the Original Series E
Certificate of Designation:
“WHEREAS,
the Corporation filed a Certificate of Designation of Preferences, Rights and
Limitations of the Series E Convertible Preferred Stock with the Secretary of
State of the State of Delaware on June 3, 2009;
WHEREAS,
it is the desire of the Board of Directors of the Corporation, pursuant to its
authority as aforesaid and with the requisite consent of the holders of the
outstanding shares of Series E Convertible Preferred Stock, par value $0.01 per
share, to amend, in its entirety, the Certificate of Designation of Preferences,
Rights and Limitations of the Series E Convertible Preferred Stock as
follows:
NOW,
THEREFORE, BE IT RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors by the provisions of the Amended Certificate of
Incorporation of the Corporation, the Board of Directors hereby amends in its
entirety the Certificate of Designation of the Series E Convertible Preferred
Stock, dated June 3, 2009, as follows:
1
TERMS
OF SERIES E CONVERTIBLE PREFERRED STOCK
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the
Strategic Agreement shall have the meanings given such terms in the Strategic
Agreement. A copy of the Strategic Agreement as in effect on the date hereof
shall be provided without charge to any holder of Common Stock or Preferred
Stock upon written request therefor. For the purposes hereof, the following
terms shall have the following meanings:
“Adjusted Convertible
Outstanding Amount” means, for purposes of determining the adjustment to
the Conversion Price under Section 7(i) hereof, as of the time of such
determination, the sum of (i) the number of outstanding shares of Common Stock
(assuming, solely for purposes of such calculation, that all shares of Series D
Preferred Stock which have converted after the date of the Series D Amendment
Agreement shall have converted at the Adjusted Series D Conversion Price), (ii)
the number of shares of Common Stock into which all Series B Preferred Stock are
then convertible at the Original Series B Preferred Stock Conversion Price,
(iii) the number of shares of Common Stock into which all Series C Preferred
Stock are then convertible at the Original Series C Preferred Stock Conversion
Price, and (iv) the number of shares of Common Stock into which all Series D
Preferred Stock are then convertible at the Original Series D Preferred Stock
Conversion Price. For the avoidance of doubt, the Adjusted
Convertible Outstanding Amount shall not include any
shares of Common Stock into which the Series E Preferred Stock is
convertible.
“Adjusted Series D Conversion
Price” means the conversion price of the Series D Preferred Stock under
the Series D Certificate, as in effect immediately after the date of
the Series D Certificate Amendment (without any future adjustment
under the Series D Certificate other than adjustment under Section 7(a)
thereof), which initially was $0.07.
“Alternate
Consideration” shall have the meaning set forth in Section
7(f).
“Amendment” means the
amendment to the Corporation’s certificate of incorporation that (i) increases
the number of authorized shares of Common Stock from 210,000,000 shares to
340,000,000 shares and (ii)
reduces the par value of the authorized shares of Common Stock from $.01 to
$.001 per share.
“Authorized Share
Approval” means the vote by the shareholders of the Corporation to
approve the Amendment and the filing by the Corporation of the Amendment with
the Secretary of State the State of Delaware and the acceptance of the Amendment
by the Secretary of State the State of Delaware.
“Authorized Share Approval
Date” means the date when all of the actions set forth in the definition
of the Authorized Share Approval have been completed.
“Business Day” means
any day except Saturday, Sunday, any day which shall be a federal legal holiday
in the United States or any day on which banking institutions in the State of
New York are authorized or required by law or other governmental action to
close.
2
“Common Stock” means
the Corporation’s common stock, par value U.S.$0.001 per share (as amended by
the Amendment), and stock of any other class of securities into which such
securities may hereafter be reclassified or changed into.
“Common Stock
Equivalents” means any securities of the Corporation or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock
“Conversion Amount”
means the sum of the Stated Value at issue.
“Conversion Date”
shall have the meaning set forth in Section 6(a).
“Conversion Price”
shall have the meaning set forth in Section 6(b).
“Conversion Shares”
means, collectively, the shares of Common Stock issuable upon conversion of the
shares of Series E Preferred Stock in accordance with the terms
hereof.
“Dilutive Issuance”
shall have the meaning set forth in Section 7(b).
“Dilutive Issuance
Notice” shall have the meaning set forth in Section 7(b).
“Dividend Issuance”
shall have the meaning set forth in Section 7(c).
“Dividend Issuance
Notice” shall have the meaning set forth in Section 7(c).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exempt
Issuance” means, subject to
the requirement to obtain the prior consent of the Holder pursuant to Section
4(b), to the extent such requirement exists, the issuance of (a) shares of
Common Stock or options to purchase Common Stock to employees, consultants,
officers or directors of the Corporation pursuant to any stock or option plan
existing on the date hereof and disclosed in the Company Disclosure Schedules or
duly adopted by a majority of the independent members of the Board of Directors
or a majority of a committee of independent members of the Board of Directors
established for such purpose, (b) securities upon the exercise or exchange of or
conversion of any securities of the Corporation outstanding on the date hereof
and disclosed in the Company Disclosure Schedules, including the Existing
Preferred Stock, pursuant to the terms thereof, provided that such securities
have not been amended since the date of this Agreement to increase the number of
securities or to decrease the exercise, exchange or conversion price of any such
securities, except for adjustments required by the terms thereof (c) up to a
maximum of 2,000,000 shares of Common Stock or Common Stock Equivalents in any
rolling 12 month period issued to consultants, vendors, financial institutions
or lessors in connection with services provided by such Persons referred to in
this clause (c), but shall not include a transaction in which the Corporation is
issuing securities primarily for the purpose of raising capital or to an entity
whose primary business is investing in securities, and provided that none of
such shares may be registered for sale or resale by any such holders, and
provided further that issuances described in this clause (c) are approved by a
majority of the independent members of the Board of Directors, (d) securities as
a dividend or distribution on any of the Securities issued pursuant to the
Strategic Agreement, (e) shares of Common Stock upon the exercise of the
Conversion Warrants and (f) securities in connection with any stock split, stock
dividend or recapitalization of the Common Stock.
3
“Existing
Preferred Stock”
means, as of any date of determination, the then issued and outstanding
shares of Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock.
“Forced Conversion”
shall have the meaning set forth in Section 8.
“Fundamental
Transaction” shall have the meaning set forth in Section
7(f).
“Holder” means Epic
Investments, LLC, a Delaware limited liability company.
“Junior Securities”
means the Common Stock, Series B Preferred Stock, Series C Preferred Stock and
all other Common Stock Equivalents of the Corporation, other than (i) the Series
D Preferred Stock and (ii) those securities which are explicitly senior or pari passu to the Series E
Preferred Stock in dividend rights or liquidation preference.
“Liquidation” shall
have the meaning set forth in Section 5.
“New York Courts”
shall have the meaning set forth in Section 10(d).
“Notice of Conversion”
shall have the meaning set forth in Section 6(a).
“Original Issue Date”
means the date of the first issuance of any shares of the Series E Preferred
Stock regardless of the number of transfers of any particular shares of Series E
Preferred Stock and regardless of the number of certificates which may be issued
to evidence such Series E Preferred Stock.
“Original Series B Conversion
Price” means $1.56, representing the conversion price of the Series B
Preferred Stock under the Series B Certificate in effect immediately prior to
the date of the Series D Amendment Agreement (subject only to adjustment under
Section 7(a) of the Series B Certificate).
“Original Series C Conversion
Price” means $1.61, representing the conversion price of the Series C
Preferred Stock under the Series C Certificate in effect immediately prior to
the date of the Series D Amendment Agreement (subject only to adjustment under
Section 7(a) of the Series C Certificate).
4
“Original Series D Conversion
Price” means $0.20, representing the conversion price of the Series D
Preferred Stock under the Series D Certificate in effect immediately prior to
the date of the Series D Certificate Amendment (subject only to
adjustment under Section 7(a) of the Series D Certificate).
“Preferred Stock”
means the Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock collectively.
“Redemption Issuance”
shall have the meaning set forth in Section 7(d).
“Redemption Issuance
Notice” shall have the meaning set forth in Section 7(d).
“Series B Certificate”
means the Amended Certificate of Designations of the Series B 8% Convertible
Preferred Stock of Elite Pharmaceuticals, Inc. filed with the Secretary of State
of the State of Delaware on September 15, 2008.
“Series B Preferred
Stock” means the Series B 8% Convertible Preferred Stock, par value
U.S.$0.01 per share, of the Corporation.
“Series C Certificate”
means the Amended Certificate of Designations of the Series C 8% Convertible
Preferred Stock of Elite Pharmaceuticals, Inc. filed with the Secretary of State
of the State of Delaware on September 15, 2008, as corrected by the Certificate
of Correction Relating to the Amended Certificate of Designations of the Series
C 8% Convertible Preferred Stock of Elite Pharmaceuticals, Inc. filed with the
Secretary of State of the State of Delaware on February 13, 2009.
“Series C Preferred
Stock” means the Series C 8% Convertible Preferred Stock, par value
U.S.$0.01 per share, of the Corporation.
“Series D Amendment
Agreement” means the certain Amendment Agreement, dated as of June 25,
2010, by and among the Corporation, Bushido Capital Master Fund, LP and
Midsummer Investment Ltd.
“Series D Certificate”
means the Certificate of Designation of Preferences, Rights and Limitations of
the Series D 8% Convertible Preferred Stock, filed with the Secretary of State
of the State of Delaware on September 15, 2008, as amended by the Series D
Certificate Amendment.
“Series D Certificate
Amendment” means the Amended Certificate of Designation of the Series D
8% Preferred Stock filed with the Secretary of State of the State of Delaware on
June 29, 2010.
“Series D Preferred
Stock” means the Series D 8% Convertible Preferred Stock, par value
U.S.$0.01 per share, of the Corporation.
5
“Series D Warrants”
means the common stock warrant, as amended, issued to the purchasers of the
Series D Preferred Stock pursuant to a certain Securities Purchase Agreement,
dated September 15, 2008, as amended, among the Corporation and the investors
signatory thereto.
“Series E Preferred
Stock” shall have the meaning set forth in Section 2.
“Share Delivery Date”
shall have the meaning set forth in Section 6(d)(i).
“Stated Value” shall
have the meaning set forth in Section 2.
“Strategic Agreement”
means the Strategic Alliance Agreement, dated as of March 18, 2009, to which the
Corporation and the Holder are parties, as amended, modified or supplemented
from time to time in accordance with its terms.
“Trading Day” means a
day on which the principal Trading Market is open for business.
“Trading Market” means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the American Stock Exchange, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the
New York Stock Exchange or the OTC Bulletin Board.
“Transfer” means any
voluntary or involuntary, direct or indirect sale, transfer, conveyance,
assignment, pledge, hypothecation, gift, delivery or other disposition;
provided, however, (i) the conversion by the Holder of any shares of Series E
Preferred Stock into Conversion Shares shall not be deemed a “Transfer” for
purposes hereof, and (ii) any sale, transfer, conveyance, assignment or other
disposition in connection with a Fundamental Transaction shall not be deemed a
Transfer hereunder.
“VWAP” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Trading Market, the daily
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed
or quoted for trading as reported by Bloomberg Financial L.P. (based on a
Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City
time)); (b) if the OTC Bulletin Board is not a Trading Market, the
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not then
quoted for trading on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a
similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Common Stock so reported; or (d) in
all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the Holder and reasonably
acceptable to the Corporation.
6
Section 2. Designation, Amount and Par
Value. This series of preferred stock shall be designated as its Series E
Convertible Preferred Stock (the “Series E Preferred
Stock”) and the number of shares so designated shall be 5,000 (which
shall not be subject to increase without the requisite affirmative vote of the
Holder as set forth in Section 4(b)). Each share of Series E Preferred Stock
shall have a par value of U.S.$0.01 per share and a stated value equal to
U.S.$1,000 (the “Stated
Value”).
Section 3. Dividends.
a) So long
as any Series E Preferred Stock shall remain outstanding, the Corporation shall
not declare, pay or set aside any dividends on shares of any other class or
series of capital stock of the Corporation (other than dividends payable
pursuant to the Series B Certificate, the Series C Certificate and the Series D
Certificate) unless the Holder shall first receive, or simultaneously receive, a
dividend on each outstanding share of Series E Preferred Stock in an amount
equal to the dividend the Holder would have been entitled to receive upon
conversion, in full, of one share of Series E Preferred Stock immediately prior
to the record date for determination of holders entitled to receive such
dividend.
b) So long
as any Series E Preferred Stock shall remain outstanding, neither the
Corporation nor any Subsidiary thereof shall redeem, purchase or otherwise
acquire directly or indirectly any Junior Securities. So long as any Series E
Preferred Stock shall remain outstanding, neither the Corporation nor any
Subsidiary thereof shall directly or indirectly pay or declare any dividend or
make any distribution upon (other than dividends described in Section 3(a)), nor
shall any monies be set aside for or applied to the purchase or redemption
(through a sinking fund or otherwise) of, any Junior Securities or shares pari passu with the Series E
Preferred Stock (other than in the case of a purchase or redemption of any
shares of Series D Preferred Stock).
c) The
Corporation acknowledges and agrees that the capital of the Corporation (as such
term is used in Section 154 of the Delaware General Corporation Law) in respect
of the Series E Preferred Stock and any future issuances of the Corporation’s
capital stock shall be equal to the aggregate par value of such Series E
Preferred Stock or capital stock, as the case may be, and that, on or after the
date of the Strategic Agreement, it shall not increase the capital of the
Corporation with respect to any shares of the Corporation’s capital stock issued
and outstanding on such date.
Section 4. Voting Rights.
(a) On
any matter presented to the stockholders of the Corporation for their action or
consideration at any meeting of stockholders of the Corporation (or by written
consent of stockholders in lieu of meeting), the Holder shall be entitled to
cast the number of votes equal to the number of whole shares of Common Stock
into which the shares of Series E Preferred Stock held by the Holder are
convertible as of the record date for determining the stockholders entitled to
vote on such matter. Except as provided by law or by the other provisions of
this Certificate of Designation, the Holder shall vote together with the holders
of Common Stock, as a single class.
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(b) The
Corporation shall not, between the Original Issue Date and the date which is the earlier of (x) the
date the Purchaser
Directors constitute a
majority of the Board of
Directors and (y) the date that is 90 days following
the fifth (5th) anniversary of the Original Issue Date, except as specifically permitted
by any other provision hereof or the other Transaction Documents or as the
Holder shall otherwise agree in writing, directly or indirectly, do, or agree to do, any of
the following without the prior written consent of the
Holder:
i. amend or otherwise change the Corporation’s certificate of incorporation or bylaws
so as to adversely affect
the Holder in a material manner;
ii. (A)
issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the
issuance, sale, pledge, disposition, grant, transfer, or encumbrance of (1) any
shares of Common Stock or Common Stock Equivalents or (2) other shares of
capital stock of the Corporation or securities convertible or exchangeable or
exercisable for any shares of such capital stock, or any options, warrants or
other rights of any kind to acquire any shares of such capital stock or such
convertible or exchangeable securities, or any other ownership interest
(including, without limitation, any such interest represented by contract
right), provided that the prohibitions referred to in clauses (1) and
(2) of this Section 4(b)(ii) shall not be applicable to Exempt
Issuances, or (B) sell, pledge, dispose of, transfer, lease, license, guarantee
or encumber, or authorize the sale, pledge, disposition, transfer, lease,
license, guarantee or encumbrance of, any material property or assets of the
Corporation, except pursuant to existing Contracts or commitments or the sale or
purchase of goods in the ordinary course of business consistent with past
practice, or enter into any commitment or transaction outside the ordinary
course of business consistent with past practice;
iii. declare,
set aside, make or pay any dividend or other distribution (whether payable in
cash, stock, property or a combination thereof) with respect to any of its
capital stock, other than dividends payable on outstanding shares
of Existing Preferred Stock in accordance with the terms thereof as
in effect on the date hereof;
iv. other than in connection with a reverse
stock split, reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its capital stock, Common
Stock, Common Stock
Equivalents, Preferred Stock or Preferred Stock Equivalents or other
securities;
v. (A) acquire (including, without
limitation, by merger, consolidation, or acquisition of stock or assets) any
interest in any Person or any division thereof or any assets, other than
acquisitions of inventory or other assets in the ordinary course of business
consistent with past practice; or (B) other than Permitted Indebtedness, for a period of three (3) years from
the Initial Closing Date, incur any indebtedness for borrowed money or issue
any debt securities or assume, guarantee or endorse, or otherwise as an
accommodation become responsible for, the obligations of any person, except for
indebtedness for borrowed money incurred by the Corporation in the ordinary course of business consistent
with past practice pursuant to the terms of a current Company Material
Contract;
8
vi. except as may be required by contractual
commitments or corporate policies with respect to employee severance or
termination pay in
existence on the date hereof as disclosed in the Company Disclosure
Schedules: (A) increase the
compensation or benefits payable or to become payable to its directors, officers
or employees, except for customary increases to compensation or benefits of
the Corporation’s employees (other than officers and
directors) of not more than five percent (5%) in the aggregate per annum made by the
Corporation consistent with past practice and approved by a majority of the
independent members of the Board of Directors; or (B) grant any rights to severance
or termination pay to, or enter into any employment or
severance agreement with, any director, officer or other employee of the
Corporation, or establish, adopt, enter into or amend any collective bargaining,
bonus, profit sharing, thrift, compensation,
stock option, restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust, fund, policy
or arrangement for the benefit of any director, officer or employee, except to the extent required
by applicable law and except for such employment, severance or termination
agreements with the Corporation’s employees (other than officers and
directors) that are entered into on an arm’s length basis and approved
by a majority of the independent members
of the Board of
Directors;
vii. (A) pay, discharge or satisfy any
material claims, liabilities or obligations (absolute, accrued, contingent or
otherwise), except in the ordinary course of business consistent with
past practice and in
accordance with their terms; (B) accelerate or delay collection of any material
notes or accounts receivable in advance of or beyond their regular due dates or
the dates when the same would have been collected in the ordinary course
of business consistent with past practice,
or (C) delay or accelerate payment of any material account payable in advance of
its due date or the date such liability would have been paid in the ordinary
course of business consistent with past practice;
viii. make any material change in accounting
policies or procedures, other than in the ordinary course of business consistent
with past practice or except as required by GAAP or by a governmental
entity;
ix. waive, release, assign, settle or
compromise any material
claims, or any material litigation or arbitration;
x. make any material tax election, settle
or compromise any material liability for Taxes, or materially amend any material
Tax Return;
xi. be a party to any Change of Control
Transaction or enter into any sale, transfer, assignment,
lease, license, mortgage, pledge, exchange or other disposition of all or
substantially all of the assets or property (real or personal, tangible or
intangible) of the Corporation or any merger, consolidation or reorganization of the Corporation with another
entity;
9
xii. take any action or step in connection
with the voluntary liquidation and dissolution of the Corporation or the filing
of a voluntary petition or other institution of proceedings to have the
Corporation adjudicated as
bankrupt or the consenting to the institution of such proceedings against the
Corporation; or
xiii. authorize or enter into any agreement or
otherwise make any commitment to do any of the foregoing.
Notwithstanding the anything to the
contrary contained in this Section 4(b), (A) the provisions set forth
in clauses (ii) (B), (ix), (x), (xi) and (xii) shall not apply after the
expiration of the Lock-Up Period, if at such time the Holder does not own the
Minimum Share Requirement and (B) if at any time after the Holder has
acquired, pursuant to the
Strategic Agreement or other Transaction Documents, a number of shares of Series
E Preferred Stock and/or Conversion Shares representing twenty-five percent
(25%) or more of the shares of the capital stock of the Corporation, on an
as-converted basis, the
Holder’s ownership percentage of the shares of
the capital stock of the
Corporation, on an as-converted basis, falls below twenty percent (20%) as a result of Transfers made by the Holder, then the
prior written consent of
the Holder shall not be required prior to the consummation of any action of the
Corporation referred to under this Section
4(b).
(d) Except
for the rights expressly set forth herein or in the Transaction Documents,
nothing contained herein or in the other Transaction Documents shall give the
Holder, directly or indirectly, the right to control or direct the operations of
the Corporation and the Corporation shall exercise, consistent with the terms
and conditions hereof and the other Transaction Documents, complete control and
supervision over its operations.
Section 5. Liquidation. Upon any
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary (a “Liquidation”), the
Holder shall be entitled to receive out of the assets, whether capital or
surplus, of the Corporation an amount equal to the Stated Value for each share
of Series E Preferred Stock held by the Holder before any distribution or
payment shall be made to the holders of any Junior Securities, including,
without limitation, the Series B Preferred Stock and the Series C Preferred
Stock. Upon a Liquidation, the Series E Preferred Stock will rank (a) pari passu with the Series D
Preferred Stock and (b) senior to any Junior Securities, including, without
limitation, the Series B Preferred Stock and the Series C Preferred Stock. If
the assets of the Corporation shall be insufficient to pay in full such amounts,
then the entire assets to be distributed to the Holder and the holders of all
outstanding shares of Series D Preferred Stock shall be ratably distributed
among the Holder and such holders of Series D Preferred Stock in accordance with
the respective amounts that would be payable on the shares of Series E Preferred
Stock owned by the Holder and such shares of Series D Preferred Stock if all
amounts payable thereon were paid in full. The Corporation shall mail written
notice to the Holder of any such Liquidation, not less than 45 calendar days
prior to the payment date stated therein.
10
Section 6. Conversion.
a) Conversions at Option of the
Holder. Subject to Section 6(c) below, each share of Series E Preferred
Stock shall be convertible at the option of the Holder, at any time and from
time to time from and after the Original Issue Date into that number of shares
of Common Stock determined by dividing the Stated Value of such share of Series
E Preferred Stock by the Conversion Price. The Holder shall effect conversions
by providing the Corporation with the form of conversion notice attached hereto
as Annex A (a
“Notice of
Conversion”). Each Notice of Conversion shall specify the number of
shares of Series E Preferred Stock to be converted, the number of shares of
Series E Preferred Stock owned by the Holder prior to the conversion at issue,
the number of shares of Series E Preferred Stock owned by the Holder subsequent
to the conversion at issue and the date on which such conversion is to be
effected, which date may not be prior to the date the Holder delivers such
Notice of Conversion to the Corporation in accordance with Section 10(a) (such
date, the “Conversion
Date”). If no Conversion Date is specified in a Notice of Conversion, the
Conversion Date shall be the date that such Notice of Conversion to the
Corporation is deemed delivered in accordance with Section 10(a). The
calculations and entries set forth in the Notice of Conversion shall control in
the absence of manifest or mathematical error. To effect conversions,
as the case may be, of shares of Series E Preferred Stock, the Holder shall not
be required to surrender the certificate(s) representing such shares of Series E
Preferred Stock to the Corporation unless all of the shares of Series E
Preferred Stock represented thereby are so converted, in which case the Holder
shall deliver the certificate representing such shares of Series E Preferred
Stock promptly following the Conversion Date at issue. Shares of
Series E Preferred Stock converted into Common Stock or redeemed in accordance
with the terms hereof shall be canceled and shall not be reissued.
b) Conversion
Price. The conversion price for the Series E Preferred Stock
shall equal U.S.$0.05, subject to adjustment herein (the “Conversion
Price”).
c) Authorized Share
Limitations. Notwithstanding anything herein to the contrary,
the Holder’s ability to convert Series E Preferred Stock into Conversion Shares
shall be limited to a number of Conversion Shares equal to the difference
between (a) the Company’s total authorized shares of Common Stock as of the
applicable Conversion Date, minus (b) as of the applicable Conversion Date, the
sum of (i) the Company’s total issued and outstanding Common Stock and (ii) the
total number of shares of Common Stock reserved for issuance upon the exercise
or conversion, as applicable, of outstanding Common Stock Equivalents
(including, without limitation, the Warrants, the Series D Preferred Stock and
the Series D Warrants), after giving effect to the Series D Amendment Agreement.
The portion of the Series E Preferred Stock which may not be converted as a
result of this Section 6(c) shall thereafter be unconvertible to such extent
until and unless approval by the Corporation’s stockholders of an increase in
the number of authorized shares of Common Stock of the Corporation is
subsequently obtained; provided, however, the rights and preferences of the
Series E Preferred Stock otherwise set forth in this Certificate of Designation
shall otherwise remain in full force and effect. For the avoidance of doubt, the
voting rights of the Holder under Section 4(a) shall not be affected by the
restrictions of this Section 6(c).
11
d) Mechanics of
Conversion
i. Delivery of Certificate Upon
Conversion. Not later than three (3) Trading
Days after each Conversion Date (the “Share Delivery
Date”), the Corporation shall deliver, or cause to be delivered, to the
Holder a certificate or certificates representing the number of Conversion
Shares being acquired upon the conversion of shares of Series E Preferred
Stock.
ii. Obligation Absolute; Partial
Liquidated Damages. Subject to the limits set forth in Section
6(c), the Corporation’s obligation to issue and deliver the Conversion Shares
upon conversion of Series E Preferred Stock in accordance with the terms hereof
are absolute and unconditional, irrespective of any action or inaction by the
Holder to enforce the same, any waiver or consent with respect to any provision
hereof, the recovery of any judgment against any Person or any action to enforce
the same, or any setoff, counterclaim, recoupment, limitation or termination, or
any breach or alleged breach by the Holder or any other Person of any obligation
to the Corporation or any violation or alleged violation of law by the Holder or
any other Person, and irrespective of any other circumstance which might
otherwise limit such obligation of the Corporation to the Holder in connection
with the issuance of such Conversion Shares; provided, however, that such
delivery shall not operate as a waiver by the Corporation of any such action
that the Corporation may have against the Holder. In the event the
Holder shall elect to convert any or all of the Stated Value of its shares of
Series E Preferred Stock, the Corporation may not refuse conversion based on any
claim that the Holder or any one associated or affiliated with the Holder has
been engaged in any violation of law, agreement or for any other reason, unless
an injunction from a court, on notice to the Holder, restraining and/or
enjoining conversion of all or part of the Series E Preferred Stock of the
Holder shall have been sought and obtained. In the absence of such
injunction, the Corporation shall issue Conversion Shares and, if applicable,
cash, upon a properly noticed conversion. Nothing herein shall limit the
Holder’s right to pursue actual damages for the Corporation’s failure to deliver
Conversion Shares within the period specified herein and the Holder shall have
the right to pursue all remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief.
12
iii. Reservation of Conversion
Shares Issuable Upon Conversion. The Corporation covenants
that it will at all times take all steps necessary to reserve and keep available
out of its authorized and unissued shares of Common Stock for the sole purpose
of issuance upon conversion of the Series E Preferred Stock, as provided herein,
and shares of Common Stock issuable upon exercise of the Warrants, as provided
in such Warrants, free from preemptive rights or any other actual contingent
purchase rights of Persons other than the Holder, not less than such aggregate
number of shares of the Common Stock as shall be issuable (taking into account
the adjustments and restrictions of Section 7) upon the conversion of all
outstanding shares of Series E Preferred Stock and upon the exercise of the
Warrants. To the extent that the Amendment does not result in an
increase of the Corporation’s authorized and unissued shares of Common Stock
adequate for the conversion in full of the Series E Preferred Stock and exercise
in full of the Warrants, the Corporation shall undertake to promptly seek
stockholder approval to increase such number of authorized and unissued shares
of Common Stock. The Corporation covenants that all shares of Common Stock that
shall be so issuable shall, upon issue, be duly authorized, validly issued,
fully paid and nonassessable.
iv. Fractional Shares.
Upon a conversion hereunder, the Corporation shall not be required to issue
stock certificates representing fractions of shares of Common Stock, but may if
otherwise permitted, make a cash payment in respect of any final fraction of a
share based on the VWAP at such time. If the Corporation elects not,
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.
v. Transfer
Taxes. The issuance of certificates for Conversion Shares on
conversion of the Series E Preferred Stock shall be made without charge to the
Holder hereof for any documentary stamp or similar taxes that may be payable in
respect of the issue or delivery of such certificates, provided that the
Corporation shall not be required to pay any tax that may be payable in respect
of any transfer involved in the issuance and delivery of any such certificate
upon conversion in a name other than that of the Holder of such shares of Series
E Preferred Stock so converted and the Corporation shall not be required to
issue or deliver such certificates unless or until the Person or Persons
requesting the issuance thereof shall have paid to the Corporation the amount of
such tax or shall have established to the satisfaction of the Corporation that
such tax has been paid.
Section 7. Certain
Adjustments.
a) Stock Dividends and Stock
Splits. If the Corporation, at any time while the Series E
Preferred Stock is outstanding: (A) pays a stock dividend or otherwise makes a
distribution or distributions payable in shares of Common Stock on shares of
Common Stock or any other Common Stock Equivalents (which, for avoidance of
doubt, shall not include any shares of Common Stock issued by the Corporation
upon conversion of, or payment of a dividend on, the Existing Preferred Stock);
(B) subdivides outstanding shares of Common Stock into a larger number of
shares; (C) combines (including by way of a reverse stock split) outstanding
shares of Common Stock into a smaller number of shares; or (D) issues, in the
event of a reclassification of shares of the Common Stock, any shares of capital
stock of the Corporation, then the Conversion Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of Common Stock
(excluding any treasury shares of the Corporation) outstanding immediately
before such event and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event. Any adjustment
made pursuant to this Section 7(a) shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
re-classification.
13
b) Subsequent Dilutive
Issuances. If the Corporation or any Subsidiary thereof, at
any time while this Series E Preferred Stock is outstanding, sells or grants any
option to purchase or sells or grants any right to reprice its securities (other
than a reduction in the Exercise Price (as defined in the Warrant) of the
Warrant issued to the Holder on the Original Issue Date), or otherwise disposes
of or issues (or announces any sale, grant or any option to purchase or other
disposition) any Common Stock or Common Stock Equivalents in connection with an
Exempt Issuance, for which the Holder’s consent was not required under Section
4(b), entitling any
Person to acquire shares of Common Stock at an effective price per share that is
lower than the then applicable Conversion Price (any such issuance, a “Dilutive Issuance”)
(if the holder of the Common Stock or Common Stock Equivalents so issued shall
at any time, whether by operation of purchase price adjustments, reset
provisions, floating conversion, exercise or exchange prices or otherwise, or
due to warrants, options or rights per share which are issued in connection with
such issuance, be entitled to receive shares of Common Stock at an effective
price per share that is lower than the then applicable Conversion Price, such
issuance shall be deemed to have occurred for less than the then applicable
Conversion Price on such date of the Dilutive Issuance), then the then
applicable Conversion Price shall be reduced to a price determined by
multiplying the then applicable Conversion Price by a fraction, the numerator of
which is the sum of (i) the number of shares of Common Stock issued and
outstanding immediately prior to the Dilutive Issuance plus (ii) the number of
shares of Common Stock issuable upon conversion or exercise of Common Stock
Equivalents issued and outstanding immediately prior to the Dilutive Issuance
plus (iii) the number
of shares of Common Stock which the offering price for such Dilutive Issuance
would purchase at the then applicable Conversion Price, and the denominator of
which shall be the sum of (1) the number of shares of Common Stock issued and
outstanding immediately prior to the Dilutive Issuance plus (2) the number of shares
of Common Stock issuable upon conversion or exercise of Common Stock Equivalents
issued and outstanding immediately prior to the Dilutive Issuance plus (3) the number of shares
of Common Stock so issued or issuable in connection with the Dilutive
Issuance. Notwithstanding the foregoing, no
adjustment will be made under this Section 7(b) in respect of any issuance as to
which the Holder has provided its written approval under Section
4(b) or
otherwise. The Corporation shall notify the Holder in writing,
no later than five (5) Business Days following a Dilutive Issuance, indicating
therein the applicable issuance price, or applicable reset price, exchange
price, conversion price and other pricing terms (such notice, the “Dilutive Issuance
Notice”). Such Dilutive Issuance Notice shall be given by the
Corporation to the Holder in accordance with Section 10(a). For purposes of
clarification, whether or not the Corporation provides a Dilutive Issuance
Notice pursuant to this Section 7(b), upon the occurrence of any Dilutive
Issuance, the Holder is entitled to receive a number of Conversion Shares based
upon the adjusted Conversion Price on or after the date of such Dilutive
Issuance, regardless of whether the Holder accurately refers to the adjusted
Conversion Price in the Notice of Conversion.
14
c) Subsequent Dividend
Issuances. If the Corporation, at any time while the Series E
Preferred Stock is outstanding, shall issue shares of Common Stock or shares of
Series D Preferred Stock in lieu of cash in satisfaction of its dividend
obligations on shares of outstanding Existing Preferred Stock in accordance with
the Series B Certificate, Series C Certificate and/or Series D Certificate, as
applicable (any such issuance, a “Dividend Issuance”),
then the then applicable Conversion Price shall be reduced to a price equal to
(i) the aggregate Stated Value of Series E Preferred Stock then outstanding
divided by (ii) the product of (x) aggregate number of Conversion Shares
issuable upon conversion of the then outstanding Series E Preferred Stock
immediately prior to Dividend Issuance multiplied by (y) the sum of one plus a
fraction with: (A) a numerator equal to (I) the number of outstanding shares of
Common Stock immediately after giving effect to the Dividend Issuance (assuming
conversion of all Existing Preferred Stock in accordance with the Series B
Certificate, Series C Certificate and/or Series D Certificate, as applicable,
but not the Series E Preferred Stock) minus (II) the number of outstanding
shares of Common Stock immediately prior to the Dividend Issuance (assuming
conversion of all Existing Preferred Stock in accordance with the
Series B Certificate, Series C Certificate and/or Series D Certificate, as
applicable, but not the Series E Preferred Stock); and (B) a denominator equal
to the number of outstanding shares of Common Stock immediately prior to the
Dividend Issuance (assuming conversion of all Existing Preferred Stock in
accordance with the Series B Certificate, Series C Certificate and/or Series D
Certificate, as applicable, but not the Series E Preferred Stock). The
Corporation shall notify the Holder in writing following a Dividend Issuance,
indicating therein the occurrence of the applicable Dividend Issuance triggering
such adjustment and the calculation of such adjusted Conversion Price (such
notice, the “Dividend
Issuance Notice”). Such Dividend Issuance Notice shall be
given by the Corporation to the Holder in accordance with Section 10(a). For
purposes of clarification, whether or not the Corporation provides a Dividend
Issuance Notice pursuant to this Section 7(c), upon the occurrence of any
Dividend Issuance, the Holder is entitled to receive a number of Conversion
Shares based upon the adjusted Conversion Price on or after the date of such
Dividend Issuance, regardless of whether the Holder accurately refers to the
adjusted Conversion Price in the Notice of Conversion.
15
d) Subsequent Redemption
Issuances. If the Corporation, at any time while the Series E Preferred
Stock is outstanding, shall issue shares of Common Stock as a result of any
holder of Series D Preferred Stock exercising its right to require the
Corporation to redeem all of such holder’s shares of Series D Preferred Stock
pursuant to a Non-Cash Redemption Triggering Event (as such term is defined in
the Series D Certificate) (any such issuance, a “Redemption
Issuance”), then the then applicable Conversion Price shall be reduced to
a price equal to (i) the aggregate Stated Value of Series E Preferred Stock then
outstanding divided by
(ii) the product of (x) aggregate number of Conversion Shares issuable upon
conversion of the then outstanding Series E Preferred Stock immediately prior to
Redemption Issuance multiplied by (y) the sum of one plus a fraction with: (A) a
numerator equal to (I) the number of outstanding shares of Common Stock
immediately after giving effect to the Redemption Issuance (assuming conversion
of all Existing Preferred Stock but not the Series E Preferred Stock) minus (II) the number of
outstanding shares of Common Stock immediately prior to the Redemption Issuance
(assuming conversion of all Existing Preferred Stock but not the Series E
Preferred Stock); and (B) a denominator equal to the number of outstanding
shares of Common Stock immediately prior to the Redemption Issuance (assuming
conversion of all Existing Preferred Stock but not the Series E Preferred
Stock). The Corporation shall notify the Holder in writing following
a Redemption Issuance, indicating therein the occurrence of the applicable
Redemption Issuance triggering such adjustment and the calculation of such
adjusted Conversion Price (such notice, the “Redemption Issuance
Notice”). Such Redemption Issuance Notice shall be given by
the Corporation to the Holder in accordance with Section 10(a). For purposes of
clarification, whether or not the Corporation provides a Redemption Issuance
Notice pursuant to this Section 7(d), upon the occurrence of any Redemption
Issuance, the Holder is entitled to receive a number of Conversion Shares based
upon the adjusted Conversion Price on or after the date of such Redemption
Issuance, regardless of whether the Holder accurately refers to the adjusted
Conversion Price in the Notice of Conversion.
e) Pro Rata
Distributions. If the Corporation, at any time while the Series E
Preferred Stock is outstanding, distributes to all holders of Common Stock (and
not to the Holder) evidences of its indebtedness or assets (including cash and
cash dividends) or rights or warrants to subscribe for or purchase any security
(other than Common Stock, which shall be subject to Sections 7(b), 7(c) or
7(d)), then in each such case the Conversion Price shall be adjusted by
multiplying such Conversion Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such distribution by
a fraction of which the denominator shall be the VWAP determined as of the
record date mentioned above, and of which the numerator shall be such VWAP on
such record date less the then fair market value at such record date of the
portion of such assets, evidence of indebtedness or rights or warrants so
distributed applicable to one outstanding share of the Common Stock as
determined by the Board of Directors of the Corporation in good
faith. In either case the adjustments shall be described in a
statement delivered to the Holder describing the portion of assets or evidences
of indebtedness so distributed or such subscription rights applicable to one
share of Common Stock. Such adjustment shall be made whenever any
such distribution is made and shall become effective immediately after the
record date mentioned above.
16
f) Fundamental
Transaction. If, at any time while the Series E Preferred Stock is
outstanding, (A) the Corporation effects any merger or consolidation of the
Corporation with or into another Person (other than the Holder), (B) the
Corporation effects any sale of all or substantially all of its assets in one
transaction or a series of related transactions, other than to the Holder, (C)
any tender offer or exchange offer (whether by the Corporation or another Person
(other than the Holder)) is completed pursuant to which holders of Common Stock
are permitted to tender or exchange their shares for other securities, cash or
property, or (D) the Corporation effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property
(in any such case, a “Fundamental
Transaction”), then, upon any subsequent conversion of the Series E
Preferred Stock, the Holder shall have the right to receive, for each Conversion
Share that would have been issuable upon such conversion immediately prior to
the occurrence of such Fundamental Transaction, the same kind and amount of
securities, cash or property as it would have been entitled to receive upon the
occurrence of such Fundamental Transaction if it had been, immediately prior to
such Fundamental Transaction, the holder of one share of Common Stock (the
“Alternate
Consideration”). For purposes of any such conversion, the
determination of the Conversion Price shall be appropriately adjusted to apply
to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Corporation shall apportion the Conversion Price among the
Alternate Consideration in a reasonable manner reflecting the relative value of
any different components of the Alternate Consideration. If holders
of Common Stock are given any choice as to the securities, cash or property to
be received in a Fundamental Transaction, then the Holder shall be given the
same choice as to the Alternate Consideration it receives upon any conversion of
the Series E Preferred Stock following such Fundamental
Transaction. To the extent necessary to effectuate the foregoing
provisions, any successor to the Corporation or surviving entity in such
Fundamental Transaction shall file a new Certificate of Designation of the
Series E Preferred Stock with the same terms and conditions and issue to the
Holder new preferred stock consistent with the foregoing provisions and
evidencing the Holder’s right to convert such preferred stock into Alternate
Consideration. The terms of any agreement pursuant to which a Fundamental
Transaction is effected shall include terms requiring any such successor or
surviving entity to comply with the provisions of this Section 7(f) and insuring
that the Series E Preferred Stock (or any such replacement security) will be
similarly adjusted upon any subsequent transaction analogous to a Fundamental
Transaction.
g) Calculations. All
calculations under this Section 7 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of this
Section 7, the number of shares of Common Stock deemed to be issued and
outstanding as of a given date shall be the sum of the number of shares of
Common Stock (excluding any treasury shares of the Corporation) issued and
outstanding.
h) Notice to the
Holder.
i. Adjustment to Conversion
Price. Whenever the Conversion Price is adjusted pursuant to
any provision of this Section 7, the Corporation shall promptly cause to be
delivered to the Holder in accordance with Section 10(a) a written notice
setting forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment.
17
ii. Notice to Allow Conversion
by the Holder. If (A) the Corporation shall declare a dividend
(or any other distribution in whatever form) on the Common Stock, (B) the
Corporation shall declare a special nonrecurring cash dividend on or a
redemption of the Common Stock, (C) the Corporation shall authorize the granting
to all holders of the Common Stock of rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights, (D) the
approval of any stockholders of the Corporation shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to
which the Corporation is a party, any sale or transfer of all or substantially
all of the assets of the Corporation, of any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or property, or (E)
the Corporation shall authorize
the voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Corporation, then, in each case, the Corporation shall cause to
be filed at each office or agency maintained for the purpose of conversion of
the Series E Preferred Stock, and shall cause to be delivered to the Holder in accordance
with Section 10(a), at least 20 calendar days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of the Common Stock of record to be entitled to such
dividend, distributions, redemption, rights or warrants are to be determined or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or close, and the
date as of which it is expected that holders of the Common Stock of record shall
be entitled to exchange their shares of the Common Stock for securities, cash or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer or share exchange, provided that, except in respect of the
approval of the stockholders described in the preceding clause (D), the failure
to deliver such notice or any defect therein or in the delivery thereof shall
not affect the validity of the corporate action required to be specified in such
notice. The Holder is entitled to convert the Conversion Amount of
the Series E Preferred Stock (or any part hereof) during the 20-day period
commencing on the date of such notice through the effective date of the event
triggering such notice.
i) Special Adjustment relating
to Series D Preferred Stock. If the Corporation, at any time
while the Series E Preferred Stock is outstanding, shall issue shares of Common
Stock in conversion of shares of outstanding Series D Preferred Stock in
accordance with the Series D Certificate (any such issuance, a “Series D Conversion
Issuance”), then the then applicable Series E Conversion Price shall
be reduced to a price equal to (i) the aggregate Stated Value of Series E
Preferred Stock then outstanding divided by (ii) the product of (x) the
aggregate number of Conversion Shares issuable upon conversion of the then
outstanding Series E Preferred Stock immediately prior to the Series D
Conversion Issuance multiplied by (y) the sum of one plus a fraction with: (A) a
numerator equal to (I) the Adjusted Convertible Outstanding Amount immediately
after giving effect to such Series D Conversion Issuance minus (II) the Adjusted
Convertible Outstanding Amount immediately prior to such Series D Conversion
Issuance; and (B) a denominator equal to the Adjusted Convertible Outstanding
Amount immediately prior to such Series D Conversion Issuance. The
Corporation shall notify the Holder in writing on a quarterly basis of all
Series D Conversions which shall have occurred during the preceding calendar
quarter, indicating therein the number of shares of Series D Preferred Stock as
to which a Series D Conversion shall have occurred and the calculation of such
adjusted Conversion Price (such notice, the “Series D Conversion
Adjustment Notice”). Such Series D Conversion Adjustment
Notice shall be given by the Corporation to the Holder in accordance with
Section 10(a). For purposes of clarification, whether or not the Corporation
provides a Series D Conversion Adjustment Notice pursuant to this Section 7(c),
upon the occurrence of any Series D Conversion, the Holder is entitled to
receive a number of Conversion Shares based upon the adjusted Conversion Price
on or after the date of such Series D Conversion, regardless of whether the
Holder accurately refers to the adjusted Conversion Price in the Notice of
Conversion.
18
Section 8. Forced
Conversion. At any time following the date upon which there
are no outstanding shares of Existing Preferred Stock, the Corporation may
automatically convert all of the then outstanding shares of Series E Preferred
Stock into Common Stock at the then effective Conversion Price (such automatic
conversion, the “Forced Conversion”),
if, after giving effect to the Forced Conversion, the Conversion Shares issued
to the Holder upon such Forced Conversion plus the number of shares of
Common Stock owned by the Holder immediately prior to such Forced Conversion
shall equal a number of shares of Common Stock that is greater than fifty
percent (50%) of the then outstanding Common Stock. The Holder will be given at
least five (5) Business Days' prior written notice of the date fixed and the
place designated for mandatory conversion of all of such shares of Series E
Preferred Stock pursuant to this Section 8. Such written notice shall
be given by the Corporation to the Holder in accordance with Section
10(a). On or before the date fixed for conversion the Holder shall
surrender its certificate or certificates for all such shares to the Corporation
at the place designated in such notice, and shall thereafter receive
certificates for the number of Conversion Shares into which the Holder’s shares
of Series E Preferred Stock are convertible. On the date fixed for
conversion, all rights with respect to the Series E Preferred Stock so converted
will terminate, except only the rights of the Holder, upon surrender of its
certificate or certificates therefor, to receive certificates for the number of
Conversion Shares into which such Series E Preferred Stock has been converted
and payment of any declared and unpaid dividends thereon. If so
required by the Corporation, certificates surrendered for conversion shall be
endorsed or accompanied by written instrument or instruments of transfer, in
form satisfactory to the Corporation, duly executed by the
Holder. All certificates evidencing shares of Series E Preferred
Stock which are required to be surrendered for conversion in accordance with the
provisions hereof shall, from and after the date such certificates are so
required to be surrendered, be deemed to have been retired and canceled and the
shares of Series E Preferred Stock represented thereby converted into Common
Stock for all purposes, notwithstanding the failure of the Holder to surrender
such certificates on or prior to such date. As soon as practicable
after the date of such mandatory conversion and the surrender of the certificate
or certificates for Series E Preferred Stock as aforesaid, the Corporation shall
cause to be issued and delivered to the Holder, or on or its written order, a
certificate or certificates for the number of Conversion Shares issuable on such
conversion in accordance with the provisions hereof and cash as provided in
Section 6(d)(i) in respect of any fraction of a share of Common Stock otherwise
issuable upon such conversion.
19
Section 9. Transfers. Notwithstanding
anything herein to the contrary, other than with respect to Transfers to
Affiliates of the Holder, the Holder shall not be entitled to Transfer its
shares of Series E Preferred Stock without the prior written consent of the
Corporation; provided, however, that nothing in this Section 9 shall prohibit or
otherwise restrict the Holder’s ability to Transfer the Conversion Shares issued
to it following a conversion of its shares of Series E Preferred Stock in
accordance with the terms hereof following the Lock-Up Period.
Section 10. Miscellaneous.
a) Notices. Any
and all notices or other communications or deliveries to be provided by the
Holder hereunder including, without limitation, any Notice of Conversion, shall
be in writing and delivered personally, by facsimile, or sent by a nationally
recognized overnight courier service, addressed to the Corporation, at the
address set forth above, facsimile number (201) 750-2755, Attn: Chief
Operating Officer, or such other facsimile number or address as the Corporation
may specify for such purposes by notice to the Holder delivered in accordance
with this Section 10. Any and all notices or other communications or
deliveries to be provided by the Corporation hereunder shall be in writing and
delivered personally, by facsimile, or sent by a nationally recognized overnight
courier service addressed to the Holder at the facsimile number or address of
the Holder appearing on the books of the Corporation, or if no such facsimile
number or address appears on the books of the Corporation, at the principal
place of business of the Holder. Any notice or other communication or
deliveries hereunder shall be deemed given and effective on the earliest of (i)
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified in this Section 10 prior to 5:30
p.m. (New York City time) on any date, (ii) the date immediately following the
date of transmission, if such notice or communication is delivered via facsimile
at the facsimile number specified in this Section 10 between 5:30 p.m. and 11:59
p.m. (New York City time) on any date, (iii) the second Business Day following
the date of mailing, if sent by nationally recognized overnight courier service,
or (iv) upon actual receipt by the party to whom such notice is required to be
given.
b) Lost or Mutilated Series E
Preferred Stock Certificate. If the Holder’s Series E
Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the
Corporation shall execute and deliver, in exchange and substitution for and upon
cancellation of a mutilated certificate, or in lieu of or in substitution for a
lost, stolen or destroyed certificate, a new certificate for the shares of
Series E Preferred Stock so mutilated, lost, stolen or destroyed, but only upon
receipt of evidence of such loss, theft or destruction of such certificate, and
of the ownership hereof reasonably satisfactory to the Corporation.
20
c) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Certificate of Designation shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Delaware, without regard to the principles of conflict of laws
thereof. Each party agrees that all legal proceedings concerning the
interpretation, enforcement and defense of the transactions contemplated by any
of the Transaction Documents (whether brought against a party hereto or its
respective Affiliates, directors, officers, shareholders, employees or agents)
shall be commenced in the state and federal courts sitting in the City of New
York, Borough of Manhattan (the “New York
Courts”). Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the New York Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein (including with respect to the enforcement of any of
the Transaction Documents), and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such New York Courts, or such New York Courts are
improper or inconvenient venue for such proceeding. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Certificate
of Designation and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner
permitted by applicable law. Each party hereto hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this Certificate of
Designation or the transactions contemplated hereby. If either party shall
commence an action or proceeding to enforce any provisions of this Certificate
of Designation, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys’ fees and other costs and
expenses incurred in the investigation, preparation and prosecution of such
action or proceeding.
d) Waiver. Any
waiver by the Corporation or the Holder of a breach of any provision of this
Certificate of Designation shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Certificate of Designation. The failure of the Corporation or
the Holder to insist upon strict adherence to any term of this Certificate of
Designation on one or more occasions shall not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence to that term
or any other term of this Certificate of Designation. Any waiver by
the Corporation or the Holder must be in writing.
e) Severability. If
any provision of this Certificate of Designation is invalid, illegal or
unenforceable, the balance of this Certificate of Designation shall remain in
effect, and if any provision is inapplicable to any Person or circumstance, it
shall nevertheless remain applicable to all other Persons and
circumstances. If it shall be found that any interest or other amount
deemed interest due hereunder violates the applicable law governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to
equal the maximum rate of interest permitted under applicable law.
21
f) Next Business
Day. Whenever any payment or other obligation hereunder shall
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day.
g) Headings. The
headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designation and shall not be deemed to limit or affect any
of the provisions hereof.
h) Status of Converted or
Redeemed Series E Preferred Stock. Shares of Series E
Preferred Stock may only be issued pursuant to the Strategic
Agreement. If any shares of Series E Preferred Stock shall be
converted, redeemed or reacquired by the Corporation, such shares shall resume
the status of authorized but unissued shares of preferred stock and shall no
longer be designated as Series E Preferred Stock.
RESOLVED, FURTHER, that the Chairman,
the president or any vice-president, and the secretary or any assistant
secretary, of the Corporation be and they hereby are authorized and directed to
prepare and file a Certificate of Designation of Preferences, Rights and
Limitations of the Series E Convertible Preferred Stock in accordance with the
foregoing resolution and the provisions of Delaware law.”
[Remainder of this page is
intentionally blank; signature page follows]
22
IN WITNESS WHEREOF, the
Corporation has caused this Amended Certificate of Designations of the Series E
Convertible Preferred Stock to be signed by Jerry Treppel, its Chief Executive
Officer, made to be effective as of June 29, 2010.
ELITE
PHARMACEUTICALS, INC.
|
|||
By:
|
/s/
Jerry Treppel
|
||
Name: | Jerry Treppel | ||
Title: | Chief Executive Officer |
Attest: | |||||
By: |
/s/ Carter J. Ward
|
||||
Name: |
Carter
J. Ward
|
||||
Title: |
Chief
Financial Officer
|
23
ANNEX
A
NOTICE OF
CONVERSION
(TO BE
EXECUTED BY THE REGISTERED THE HOLDER IN ORDER TO CONVERT SHARES OF SERIES E
PREFERRED STOCK)
The
undersigned hereby elects to convert the number of shares of Series E
Convertible Preferred Stock indicated below into shares of common stock, par
value U.S.$0.001 per share (the “Common Stock”), of
Elite Pharmaceuticals, Inc., a Delaware corporation (the “Corporation”),
according to the conditions hereof, as of the date written below. If shares are
to be issued in the name of a Person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto and is delivering
herewith such certificates and opinions as may be required by the Corporation in
accordance with the Strategic Agreement. No fee will be charged to the Holder
for any conversion, except for any such transfer taxes.
Conversion
calculations:
Date
to Effect Conversion:
|
|
Number
of shares of Series E Preferred Stock owned prior to
Conversion:
|
Number
of shares of Series E Preferred Stock to be Converted:
|
|
Stated
Value of shares of Series E Preferred Stock to be
Converted:
|
|
Number
of shares of Common Stock to be Issued:
|
|
Applicable
Conversion Price:
|
|
Number
of shares of Series E Preferred Stock subsequent to
Conversion:
|
|
EPIC,
LLC
|
|||
By:
|
|||
Name: | |||
Title: |
24