Document/Exhibit Description Pages Size
1: 10KSB Annual Report -- Small Business 69 351K
2: EX-2.1 Plan of Reorganization 8 56K
3: EX-3.1 Articles of Incorporation 4 32K
4: EX-3.2 Articles of Incorporation 1 17K
5: EX-3.3 Articles of Incorporation 16 75K
6: EX-3.4 By-Laws 18 86K
7: EX-10.1 Material Contracts 58 245K
16: EX-10.10 Material Contracts 18 76K
17: EX-10.11 Material Contracts 4 30K
18: EX-10.12 Material Contracts 4 30K
19: EX-10.13 Material Contracts 4 30K
20: EX-10.14 Material Contracts 4 30K
21: EX-10.15 Material Contracts 4 30K
22: EX-10.16 Material Contracts 4 31K
23: EX-10.17 Material Contracts 4 30K
24: EX-10.18 Material Contracts 17 66K
25: EX-10.19 Material Contracts 4 30K
8: EX-10.2 Material Contracts 13 53K
26: EX-10.20 Material Contracts 4 30K
27: EX-10.21 Material Contracts 4 30K
28: EX-10.22 Material Contracts 4 30K
29: EX-10.23 Material Contracts 4 30K
30: EX-10.24 Material Contracts 4 30K
31: EX-10.25 Material Contracts 4 30K
32: EX-10.26 Material Contracts 3 26K
33: EX-10.27 Material Contracts 3 27K
34: EX-10.28 Material Contracts 4 30K
35: EX-10.29 Material Contracts 4 30K
9: EX-10.3 Material Contracts 30 127K
36: EX-10.30 Material Contracts 4 30K
37: EX-10.31 Material Contracts 4 30K
38: EX-10.32 Material Contracts 4 30K
39: EX-10.33 Material Contracts 4 30K
40: EX-10.34 Material Contracts 4 30K
41: EX-10.35 Material Contracts 4 31K
42: EX-10.36 Material Contracts 4 31K
43: EX-10.37 Material Contracts 4 30K
44: EX-10.38 Material Contracts 2 22K
45: EX-10.39 Material Contracts 3 26K
10: EX-10.4 Material Contracts 30 126K
46: EX-10.40 Material Contracts 3 26K
47: EX-10.41 Material Contracts 3 27K
48: EX-10.42 Material Contracts 1 19K
49: EX-10.43 Material Contracts 18 82K
50: EX-10.44 Material Contracts 16 77K
51: EX-10.45 Material Contracts 13 55K
52: EX-10.46 Material Contracts 8 38K
53: EX-10.47 Material Contracts 30 110K
54: EX-10.48 Material Contracts 17 75K
55: EX-10.49 Material Contracts 17 81K
11: EX-10.5 Material Contracts 10 40K
56: EX-10.50 Material Contracts 3 23K
57: EX-10.51 Material Contracts 6 33K
58: EX-10.52 Material Contracts 3 29K
59: EX-10.53 Material Contracts 80± 299K
60: EX-10.54 Material Contracts 9 51K
12: EX-10.6 Material Contracts 10 40K
13: EX-10.7 Material Contracts 8 45K
14: EX-10.8 Material Contracts 7 36K
15: EX-10.9 Material Contracts 12 59K
61: EX-21.1 Subsidiaries 1 14K
62: EX-27 Financial Data Schedule 1 16K
Exhibit 3.3
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following articles of amendment to its
articles of incorporation:
FIRST: The name of the corporation is Stan Lee Media, Inc. (the "corporation"
and sometimes hereinafter referred to as the "Company").
SECOND: ARTICLE THIRD of the articles of incorporation of the corporation shall
be amended by the addition of a new paragraph D, which shall read in its
entirety as follows:
D. Series A Preferred Stock. A class of preferred stock designated as
the Series A Preferred Stock is hereby created out of the Preferred
Stock previously authorized by these Articles of Incorporation. The
aggregate number of the Series A Preferred Stock which this corporation
shall have authority to issue is one million five hundred thousand
shares (1,500,000) shares, each with no par value, which shares shall be
designated as the "Series A Preferred Stock" (the "Preferred Shares").
The powers, designations, preferences and other special rights
of the Preferred Shares is as follows:
Section 1. Dividends. In the event any dividend or other
distribution payable in cash or other property is declared on the Common
Stock (defined below), each holder (a "Holder" and, collectively, the
"Holders") of the Preferred Shares on the record date for such dividend
or distribution shall be entitled to receive per Preferred Share on the
date of payment or distribution of such dividend or other distribution
the amount of cash or property equal to the cash or property which would
be received by the Holders of the number of shares of Common Stock into
which such Preferred Share would be converted pursuant to Section 2
hereof immediately prior to such record date.
Section 2. Distributions Upon Liquidation, Dissolution or
Winding-Up. In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company, the Holders of the Preferred
Shares shall be entitled to receive in cash out of the assets of the
Company, whether from capital or from earnings available for
distribution to its stockholders (the "Liquidation Funds"), before any
amount shall be paid to the holders of any of the capital stock of the
Company of any class junior in rank to the Preferred Shares in respect
of the preferences as to the distributions and payments on the
liquidation, dissolution and winding up of the Company, an amount per
Preferred Share equal to Seven Dollars ($7.00) and any accrued but
unpaid Dividends (such sum being referred to as the "Liquidation
Preference"); provided, however, that, if the Liquidation Funds are
insufficient to pay the full amount due to the Holders of Preferred
Shares and holders of shares of other classes or series of preferred
stock of the Company that are of equal rank with the Preferred Shares as
to payments of Liquidation Funds (the "Pari Passu Shares"), then each
Holder of Preferred Shares and Pari Passu Shares shall receive a
percentage of the Liquidation Funds equal to the full amount of
Liquidation Funds payable to such Holder as a liquidation preference, in
accordance with their respective Certificate of Designations,
Preferences and Rights, as a percentage of the full amount of
Liquidation Funds payable to all Holders of Preferred Shares and holders
of Pari Passu Shares. In addition to the receipt of the Liquidation
Preference, in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the Holders of the Preferred
Shares shall be entitled to receive Liquidation Funds distributed to
holders of Common Stock, after the Liquidation Preference has been paid,
to the same extent as if such Holders of Preferred Shares had converted
the Preferred Shares into Common Stock (without regard to any
limitations on conversions herein or elsewhere) and had held such shares
of Common Stock on the record date for such distribution of the
remaining Liquidation Funds. The purchase or redemption by the Company
of stock of any class, in any manner permitted by law, shall not, for
the purposes hereof, be regarded as a liquidation, dissolution or
winding up of the Company. Neither the consolidation or merger of the
Company with or into any other Person, nor the sale or transfer by the
Company of substantially all of its assets, shall, for the purposes
hereof, be deemed to be a liquidation, dissolution or winding up of the
Company. No Holder of Preferred Shares shall be entitled to receive any
amounts with respect thereto upon any liquidation, dissolution or
winding up of the Company other than the amounts provided for herein;
provided that a Holder of Preferred Shares shall be entitled to all
amounts previously accrued with respect to amounts owed hereunder.
Section 3. Conversion of Preferred Shares. Preferred Shares
shall be convertible into shares of the Company's common stock, no par
value (the "Common Stock"), on the terms and conditions set forth in
this Section.
(a) Certain Defined Terms. For purposes of this
Certificate of Designations, the following terms shall have the
following meanings:
(i) "Business Day" means any day in which the
Principal Market is open for business.
(ii) "Closing Bid Price" means, for any security as
of any date, the last closing bid price for such security on the
Principal Market (as defined below) as reported by Bloomberg Financial
Markets ("Bloomberg"), or, if the Principal Market is not the principal
securities exchange or trading market for such security, the last
closing bid price of such security on the principal securities exchange
or trading market where such security is listed or traded as reported by
Bloomberg, or if the foregoing do not apply, the last closing bid price
of such security in the over-the-counter market on the Electronic
Bulletin Board for such security as reported by Bloomberg, or, if no
closing bid price is reported for such security by Bloomberg, the last
closing trade price of such security as reported by Bloomberg, or, if no
last closing trade price is reported for such security by Bloomberg, the
average of the bid prices of any market makers for such
security as reported in the "pink sheets" by the National Quotation
Bureau, Inc. If the Closing Bid Price cannot be calculated for such
security on such date on any of the foregoing bases, the Closing Bid
Price of such security on such date shall be the fair market value as
mutually determined by the Company and the Holders of Preferred Shares.
If the Company and the Holders of Preferred Shares are unable to agree
upon the fair market value of the Common Stock, then such dispute shall
be resolved pursuant to Section 3(e) below. (All such determinations to
be appropriately adjusted for any stock dividend, stock split or other
similar transaction during such period).
(iii) "Closing Date" has the same meaning as the
term is defined in the Securities Purchase Agreement, entered into by
and between the Company and certain investor(s), dated as of November 3,
1999.
(iv) "Conversion Price" means the Fixed Conversion
Price in effect as of such date and subject to adjustment as provided
herein.
(v) "Fixed Conversion Price" means, Seven Dollars
($7.00), subject to adjustment as provided herein.
(vi) "Issuance Date" means, with respect to each
Preferred Share, the date of issuance of the applicable Preferred Share.
(vii) "Person" means an individual, a limited
liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department
or agency thereof.
(viii) "Principal Market" means the Nasdaq National
Market, the Nasdaq SmallCap Market or OTC Electronic Bulletin Board.
(ix) "Registration Rights Agreement" means that
certain Registration Rights Agreement entered into by and between the
Company and certain investor(s), dated as of November 3, 1999.
(x) "Stated Value" means Seven Dollars ($7.00).
(b) Holder's Conversion Right. At any time or times on or
after the Issuance Date, any Holder of Preferred Shares shall be
entitled to convert any whole number of Preferred Shares into fully paid
and nonassessable shares of Common Stock in accordance with Section
3(e), at the Conversion Rate (as defined below). The Company shall not
issue any fraction of a share of Common Stock upon any conversion. All
shares of Common Stock (including fractions thereof) issuable upon
conversion of more than one Preferred Share by a Holder thereof shall be
aggregated for purposes of
3
determining whether the conversion would result in the issuance of a
fraction of a share of Common Stock. If, after the aforementioned
aggregation, the issuance would result in the issuance of a fraction of
a share of Common Stock, the Company shall round such fraction of a
share of Common Stock up to the nearest whole share.
(c) Conversion Rate. The number of shares of Common Stock
issuable upon conversion of each Preferred Share pursuant to Section
3(b) shall be determined according to the following formula (the
"Conversion Rate"):
Stated Value
Conversion Price
(d) Automatic Conversion. The Preferred Shares shall
automatically be converted into shares of Common Stock, at the then
effective Conversion Price, upon the earlier of (i) the closing of a
firm commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of Common Stock for the account of the
corporation to the public at a price per share (prior to underwriter
commissions and offering expenses) of not less than Fifteen Dollars
($15.00) per share (appropriately adjusted for any recapitalizations,
stock splits, stock combinations, stock dividends and the like) and an
aggregate offering price to the public of not less than Twenty-Five
Million Dollars ($25,000,000), or (ii) the receipt by the corporation of
the affirmative vote at a duly noticed stockholders' meeting or pursuant
to a duly solicited written consent of the holders of more than
two-thirds of the then outstanding Preferred Shares in favor of the
conversion of all of the Preferred Shares. In the event of the automatic
conversion of the Preferred Shares upon a public offering as set forth
in clause (i) above, the person(s) entitled to receive the Common Stock
issuable upon such conversion of Preferred Shares shall not be deemed to
have converted such Preferred Shares until immediately prior to the
closing of such sale of securities.
(e) Mechanics of Conversion. The conversion of Preferred
Shares shall be conducted in the following manner:
(i) Holder's Delivery Requirements. To convert
Preferred Shares into shares of Common Stock on any date (the
"Conversion Date"), the Holder shall (A) transmit by facsimile (or
otherwise deliver), for receipt on or prior to 11:59 P.M., Pacific Time
on such date, a copy of a fully executed notice of conversion in the
form attached hereto as Exhibit I (the "Conversion Notice") to the
Company's designated transfer agent (the "Transfer Agent") with a copy
thereof to the Company and (B) surrender to a common carrier for
delivery to the Transfer Agent as soon as practicable following such
date the original certificates representing the Preferred Shares being
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converted (or an indemnification undertaking with respect to such shares
in the case of their loss, theft or destruction) (the "Preferred Stock
Certificates").
(ii) Company's Response. Upon receipt by the
Company of a copy of a Conversion Notice, the Company shall immediately
send, via facsimile, a confirmation of receipt of such Conversion Notice
to such Holder and the Transfer Agent, which confirmation shall
constitute an instruction to the Transfer Agent to process such
Conversion Notice in accordance with the terms herein. Upon receipt by
the Transfer Agent of the Preferred Stock Certificates to be converted
pursuant to a Conversion Notice, the Transfer Agent shall, on the next
business day following the date of receipt (or the second business day
following the date of receipt if received after 11:00 a.m. local time of
the Transfer Agent), (A) issue and surrender to a common carrier for
overnight delivery to the address as specified in the Conversion Notice,
a certificate, registered in the name of the Holder or its designee, for
the number of shares of Common Stock to which the Holder shall be
entitled, or (B) provided the Transfer Agent is participating in The
Depository Trust Company ("DTC") Fast Automated Securities Transfer
Program, upon the request of the Holder, credit such aggregate number of
shares of Common Stock to which the Holder shall be entitled to the
Holder's or its designee's balance account with DTC through its Deposit
Withdrawal Agent Commission system. If the number of Preferred Shares
represented by the Preferred Stock Certificate(s) submitted for
conversion is greater than the number of Preferred Shares being
converted, then the Transfer Agent shall, as soon as practicable and in
no event later than three (3) Business Days after receipt of the
Preferred Stock Certificate(s) and at its own expense, issue and deliver
to the Holder a new Preferred Stock Certificate representing the number
of Preferred Shares not converted.
(iii) Dispute Resolution. In the case of a dispute
as to the arithmetic calculation of the Conversion Rate, the Company
shall instruct the Transfer Agent to issue to the Holder the number of
shares of Common Stock that is not disputed and shall submit the
disputed determinations or arithmetic calculations to the Holder via
facsimile within one (1) Business Day of receipt of such Holder's
Conversion Notice. If such Holder and the Company are unable to agree
upon the arithmetic calculation of the Conversion Rate within one (1)
Business Day of such disputed arithmetic calculation being submitted to
the Holder, then the Company shall within one (1) Business Day submit
via facsimile the disputed arithmetic calculation of the Conversion Rate
to the Company's independent, outside accountant. The Company shall
cause the accountant to perform the calculations and notify the Company
and the Holder of the results no later than forty-eight (48) hours from
the time it receives the disputed calculations. Such accountant's
calculation shall be binding upon all parties absent manifest error.
(iv) Record Holder. The person or persons entitled
to receive the shares of Common Stock issuable upon a conversion of
Preferred Shares shall be
5
treated for all purposes as the record holder or holders of such shares
of Common Stock on the Conversion Date.
(v) Pro Rata Conversion and Redemption. In the
event the Company receives a Conversion Notice from more than one Holder
of Preferred Shares for the same Conversion Date and the Company can
convert some, but not all, of such Preferred Shares, the Company shall
convert from each Holder of Preferred Shares electing to have Preferred
Shares converted at such time a pro rata amount of such Holder's
Preferred Shares submitted for conversion based on the number of
Preferred Shares submitted for conversion on such date by such Holder
relative to the number of Preferred Shares submitted for conversion on
such date.
(f) Fractional Shares. No fractional shares of Common
Stock or scrip shall be issued upon conversion of shares of Preferred
Stock. If more than one share of Preferred Stock shall be surrendered
for conversion at any one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of Preferred
Stock so surrendered. Instead of any fractional shares of Common Stock
which would otherwise be issuable upon conversion of any shares of
Preferred Stock, the Company shall pay a cash adjustment in respect of
such fractional interest in an amount equal to that fractional interest
of the then Current Market Price.
(g) Conversion Price Adjustments. The Conversion Price
shall be subject to adjustment from time to time as follows:
(i) Common Stock Issued at Less Than the Conversion
Price. If the Company shall issue any Common Stock other than Excluded
Stock (as hereinafter defined) without consideration or for a
consideration per share less than the Conversion Price in effect
immediately prior to such issuance, the Conversion Price in effect
immediately prior to each such issuance shall immediately (except as
provided below) be reduced to the price determined by dividing (1) an
amount equal to the sum of (A) the number of shares of Common Stock
outstanding immediately prior to such issuance multiplied by the
Conversion Price in effect immediately prior to such issuance and (B)
the consideration, if any, received by the Company upon such issuance,
by (2) the total number of shares of Common Stock outstanding
immediately after such issuance.
For the purposes of any adjustment of the
Conversion Price pursuant to clause (i), the following provisions shall
be applicable:
(A) Cash. In the case of the issuance of Common
Stock for cash, the amount of the consideration received by the Company
shall be deemed to be the amount of the cash proceeds received by the
Company for such Common Stock
6
before deducting therefrom any discounts, commissions, taxes or other
expenses allowed, paid or incurred by the Company for any underwriting
or otherwise in connection with the issuance and sale thereof.
(B) Consideration Other Than Cash. In the case of
the issuance of Common Stock (otherwise than upon the conversion of
shares of capital stock or other securities of the Company) for a
consideration in whole or in part other than cash, including securities
acquired in exchange therefor (other than securities by their terms so
exchangeable), the consideration other than cash shall be deemed to be
the fair value thereof as determined by the Board of Directors,
irrespective of any accounting treatment; provided that such fair value
as determined by the Board of Directors shall not exceed the aggregate
Current Market Price of the shares of Common Stock being issued as of
the date the Board of Directors authorizes the issuance of such shares.
(C) Options and Convertible Securities. In the case
of the issuance of (i) options, warrants or other rights to purchase or
acquire Common Stock (whether or not at the time exercisable) other than
the Excluded Stock, and (ii) securities by their terms convertible into
or exchangeable for Common Stock (whether or not at the time so
convertible or exchangeable) or options, warrants or rights to purchase
such convertible or exchangeable securities (whether or not at the time
exercisable) other than the Excluded Stock:
(1) the aggregate maximum number of shares
of Common Stock deliverable upon exercise of such options, warrants or
other rights to purchase or acquire Common Stock shall be deemed to have
been issued at the time such options, warrants or rights were issued and
for a consideration equal to the consideration (determined in the manner
provided in subclauses (A) and (B) above), if any, received by the
Company upon the issuance of such options, warrants or rights plus the
minimum purchase price provided in such options, warrants or rights for
the Common Stock covered thereby;
(2) the aggregate maximum number of shares
of Common Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities, or upon the exercise of
options, warrants or other rights to purchase or acquire such
convertible or exchangeable securities and the subsequent conversion or
exchange thereof, shall be deemed to have been issued at the time such
securities were issued or such options, warrants or rights were issued
and for a consideration equal to the consideration, if any, received by
the Company for any such securities and related options, warrants or
rights (excluding any cash received on account of accrued interest or
accrued dividends), plus the additional consideration (determined in the
manner provided in subclauses (A) and (B) above), if any, to be received
by the
7
Company upon the conversion or exchange of such securities, or upon the
exercise of any related options, warrants or rights to purchase or
acquire such convertible or exchangeable securities and the subsequent
conversion or exchange thereof;
(3) on any change in the number of shares of
Common Stock deliverable upon exercise of any such options, warrants or
rights or conversion or exchange of such convertible or exchangeable
securities or any change in the consideration to be received by the
Company upon such exercise, conversion or exchange, including, but not
limited to, a change resulting from the anti-dilution provisions
thereof, the Conversion Price as then in effect shall forthwith be
readjusted to such Conversion Price as would have been obtained had an
adjustment been made upon the issuance of such options, warrants or
rights not exercised prior to such change, or of such convertible or
exchangeable securities not converted or exchanged prior to such change,
upon the basis of such change;
(4) on the expiration or cancellation of any
such options, warrants or rights, or the termination of the right to
convert or exchange such convertible or exchangeable securities, if the
Conversion Price shall have been adjusted upon the issuance thereof, the
Conversion Price shall forthwith be readjusted to such Conversion Price
as would have been obtained had an adjustment been made upon the
issuance of such options, warrants, rights or such convertible or
exchangeable securities on the basis of the issuance of only the number
of shares of Common Stock actually issued upon the exercise of such
options, warrants or rights, or upon the conversion or exchange of such
convertible or exchangeable securities; and
(5) if the Conversion Price shall have been
adjusted upon the issuance of any such options, warrants, rights or
convertible or exchangeable securities, no further adjustment of the
Conversion Price shall be made for the actual issuance of Common Stock
upon the exercise, conversion or exchange thereof; provided, however,
that no increase in the Conversion Price shall be made pursuant to
subclauses (1) or (2) of this subclause (C).
(ii) Excluded Stock. "Excluded Stock" shall mean
(A) shares of Common Stock issued or reserved for issuance by the
Company as a stock dividend payable in shares of Common Stock, or upon
any subdivision or split-up of the outstanding shares of Common Stock or
Preferred Stock, or upon conversion of shares of Preferred Stock, (B)
options and warrants heretofore granted to key employees, consultants
and advisors of the Company, and (C) 1,500,000 shares of Common Stock to
be issued to key employees, consultants and advisors of the Company
pursuant to the Company's 1999 Stock Incentive Plan, and 150,000 shares
of Common Stock to be issued to non-employee directors pursuant to the
Company's 1999 Stock Compensation Plan, together with any such shares
that are repurchased by the Company and reissued
8
to any such employee, consultant or advisor. All shares of Excluded
Stock which the Company has reserved for issuance shall be deemed to be
outstanding for all purposes of computations under subparagraph 3(g)(i).
(iii) Stock Dividends, Subdivisions,
Reclassifications or Combinations. If the Company shall (i) declare a
dividend or make a distribution on its Common Stock in shares of its
Common Stock, (ii) subdivide or reclassify the outstanding shares of
Common Stock into a greater number of shares, or (iii) combine or
reclassify the outstanding Common Stock into a smaller number of shares,
the Conversion Price in effect at the time of the record date for such
dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so
that the holder of any shares of Preferred Stock surrendered for
conversion after such date shall be entitled to receive the number of
shares of Common Stock which he would have owned or been entitled to
receive had such Preferred Stock been converted immediately prior to
such date. Successive adjustments in the Conversion Price shall be made
whenever any event specified above shall occur.
(iv) Other Distributions. In case the Company shall
fix a record date for the making of a distribution to all holders of
shares of its Common Stock (i) of shares of any class other than its
Common Stock or (ii) of evidence of indebtedness of the Company or any
Subsidiary or (iii) of assets (excluding cash dividends or
distributions, and dividends or distributions referred to in
subparagraph 3(g)(iii) above), or (iv) of rights or warrants (excluding
those referred to in subparagraph 3(g)(i) above), in each such case the
Conversion Price in effect immediately prior thereto shall be reduced
immediately thereafter to the price determined by dividing (1) an amount
equal to the difference resulting from (A) the number of shares of
Common Stock outstanding on such record date multiplied by the
Conversion Price per share on such record date, less (B) the fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive) of said shares or evidences of indebtedness or
assets or rights or warrants to be so distributed, by (2) the number of
shares of Common Stock outstanding on such record date. Such adjustment
shall be made successively whenever such a record date is fixed. In the
event that such distribution is not so made, the Conversion Price then
in effect shall be readjusted, effective as of the date when the Board
of Directors determines not to distribute such shares, evidences of
indebtedness, assets, rights or warrants, as the case may be, to the
Conversion Price which would then be in effect if such record date had
not been fixed.
(v) Consolidation, Merger, Sale, Lease or
Conveyance. In case of any consolidation with or merger of the Company
with or into another corporation, or in case of any sale, lease or
conveyance to another corporation of the assets of the Company as an
entirety or substantially as an entirety, each share of Preferred Stock
shall after the date of such consolidation, merger, sale, lease or
conveyance be
9
convertible into the number of shares of stock or other securities or
property (including cash) to which the Common Stock issuable (at the
time of such consolidation, merger, sale, lease or conveyance) upon
conversion of such share of Preferred Stock would have been entitled
upon such consolidation, merger, sale, lease or conveyance; and in any
such case, if necessary, the provisions set forth herein with respect to
the rights and interests thereafter of the holders of the shares of
Preferred Stock shall be appropriately adjusted so as to be applicable,
as nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the conversion of the
shares of Preferred Stock.
(vi) Rounding of Calculations; Minimum Adjustment.
All calculations under this subparagraph (g) shall be made to the
nearest cent or to the nearest one hundredth (1/100th) of a share, as
the case may be. Any provision of this Section 3 to the contrary
notwithstanding, no adjustment in the Conversion Price shall be made if
the amount of such adjustment would be less than $0.05, but any such
amount shall be carried forward and an adjustment with respect thereto
shall be made at the time of and together with any subsequent adjustment
which, together with such amount and any other amount or amounts so
carried forward, shall aggregate $0.05 or more.
(vii) Timing of Issuance of Additional Common Stock
Upon Certain Adjustments. In any case in which the provisions of this
subparagraph (g) shall require that an adjustment shall become effective
immediately after a record date for an event, the Company may defer
until the occurrence of such event (A) issuing to the holder of any
share of Preferred Stock converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment required by such event
over and above the shares of Common Stock issuable upon such conversion
before giving effect to such adjustment and (B) paying to such holder
any amount of cash in lieu of a fractional share of Common Stock
pursuant to subparagraph (e) of this Section 3; provided that the
Company upon request shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such
additional shares, and such cash, upon the occurrence of the event
requiring such adjustment.
(h) Current Market Price. The Current Market Price at any
date shall mean, in the event the Common Stock is publicly traded, the
average of the daily closing prices per share of Common Stock for 30
consecutive trading days ending no more than 15 business days before
such date (as adjusted for any stock dividend, split, combination or
reclassification that took effect during such 30 business day period).
The closing price for each day shall be the last reported sale price
regular way or, in case no such reported sale takes place on such day,
the average of the last closing bid and asked prices regular way, in
either case on the Principal Market on which the Common Stock is listed
or
10
admitted to trading, or if not listed or admitted to trading on any
national securities exchange, the closing sale price for such day
reported by NASDAQ, if the Common Stock is traded over-the-counter and
quoted in the National Market System, or if the Common Stock is so
traded, but not so quoted, the average of the closing reported bid and
asked prices of the Common Stock as reported by NASDAQ or any comparable
system or, if the Common Stock is not listed on NASDAQ or any comparable
system, the average of the closing bid and asked prices as furnished by
two members of the National Association of Securities Dealers, Inc.
selected from time to time by the Company for that purpose. If the
Common Stock is not traded in such manner that the quotations referred
to above are available for the period required hereunder, Current Market
Price per share of Common Stock shall be deemed to be the fair value as
determined by the Board of Directors, irrespective of any accounting
treatment.
(i) Statement Regarding Adjustments. Whenever the
Conversion Price shall be adjusted as provided in subparagraph 3(g), the
Company shall forthwith file, at the office of any transfer agent for
the Preferred Stock and at the principal office of the Company, a
statement showing in detail the facts requiring such adjustment and the
Conversion Price that shall be in effect after such adjustment, and the
Company shall also cause a copy of such statement to be sent by mail,
first class postage prepaid, to each holder of shares of Preferred Stock
at its address appearing on the Company's records. Each such statement
shall be signed by the Company's independent public accountants, if
applicable. Where appropriate, such copy may be given in advance and may
be included as part of a notice required to be mailed under the
provisions of subparagraph 3(j).
(j) Notice to Holders. Subject to the voting provisions
set forth in Section 5 hereof, in the event the Company shall propose to
take any action of the type described in clause (i) (but only if the
action of the type described in clause (i) would result in an adjustment
in the Conversion Price), (iii), (iv) or (v) of subparagraph 3(g), the
Company shall give notice to each holder of shares of Preferred Stock,
in the manner set forth in subparagraph 3(i), which notice shall specify
the record date, if any, with respect to any such action and the
approximate date on which such action is to take place. Such notice
shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the
extent such effect may be known at the date of such notice) on the
Conversion Price and the number, kind or class of shares or other
securities or property which shall be deliverable upon conversion of
shares of Preferred Stock. In the case of any action which would require
the fixing of a record date, such notice shall be given at least 10 days
prior to the date so fixed, and in case of all other action, such notice
shall be given at least 15 days prior to the taking of such proposed
action.
(k) Treasury Stock. For the purposes of this Section 3,
the sale or other
11
disposition of any Common Stock theretofore held in the Company's
treasury shall be deemed to be an issuance thereof.
(l) Costs. The Company shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the issuance or
delivery of shares of Common Stock upon conversion of any shares of
Preferred Stock; provided that the Company shall not be required to pay
any taxes which may be payable in respect of any transfer involved in
the issuance or delivery of any certificate for such shares in a name
other than that of the holder of the shares of Preferred Stock in
respect of which such shares are being issued.
(m) Valid Issuance. All shares of Common Stock which may
be issued upon conversion of the shares of Preferred Stock will upon
issuance by the Company be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to
the issuance thereof, and the Company shall take no action which will
cause a contrary result (including without limitation, any action which
would cause the Conversion Price to be less than the par value, if any,
of the Common Stock).
Section 4. Redemption Rights. The holders of Preferred Shares
shall have no redemption rights.
Section 5. Voting Rights.
(a) General Voting Rights. Except as otherwise provided in
this Section and except as otherwise required by law, each Holder of the
Preferred Shares shall be entitled to notice of any stockholders'
meeting and to vote upon any matter submitted to stockholders for vote,
and shall vote together with the holders of the Common Shares as a
single class and not as separate classes. Each Holder of Preferred
Shares shall be entitled to the number of votes equal to the largest
number of full shares of Common Stock into which such Holder's Preferred
Shares could be converted pursuant to the provisions of Section 4 hereof
at the record date for the determination of the stockholders entitled to
vote on such matters. Fractional votes shall not be permitted, however,
and any fractional voting rights resulting from the above formula (after
aggregating all shares into which Series A Preferred Shares held by each
holder could be converted) shall be rounded upward to the nearest whole
number. In all cases where the shares of Preferred Stock have the right
to vote separately as a class, such holders shall be entitled to one
vote for each such share held by them respectively. Each Common Share
issued and outstanding shall have one vote on all matters.
(b) Election of Directors. Notwithstanding the foregoing
voting rights, so long as more than 1,000,000 shares of the Preferred
Shares are outstanding, the holders of the Preferred Shares, voting as a
separate class, shall be entitled to elect one
12
member to the Board of Directors. All directors not elected by holders
of the Preferred Shares shall be elected by the vote of the holders of
the Common Stock and the Preferred Shares voting together and not as
separate classes, with each share voting as provided in Section 5(a).
(c) Protective Provisions. Until October 31, 2001 (in
which case these protective provisions shall be void and of no effect),
without first obtaining the approval (by vote or written consent, as
provided by law) of a majority of the Holders of the Series A Preferred
Shares then outstanding (voting separately as a class), this corporation
shall not do any of the following:
(i) Alter or change the rights, preferences,
privileges, or powers of the Series A Preferred Shares so as to
materially affect the holders of the Series A Preferred Shares;
(ii) Increase the authorized number of Series A
Preferred Shares;
(iii) Create any new class or series of shares
having preferences over or on a parity with the Series A Preferred
Shares, unless the purpose of creation of such class or series is, and
the proceeds to be derived from the sale and issuance thereof are to be
used for, the retirement of the Series A Preferred Shares;
(iv) Effect any sale, lease, assignment, transfer
or other conveyance of all or substantially all of the assets of this
corporation, or any consolidation or merger of this corporation with or
into any other corporation, except for a consolidation or merger for
which no stockholder approval is required;
(v) Approve the appointment of a chief executive
officer for the corporation;
(vi) Approve the corporation's annual operating
plan; or
(vii) Repurchase or redeem any issued and
outstanding shares of Common Stock or shares of Series A Preferred
Stock.
Section 6. Reorganization, Reclassification, Consolidation,
Merger or Sale. Any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of the Company's
assets to another Person or other transaction which is effected in such
a way that holders of Common Stock are entitled to receive (either
directly or upon subsequent liquidation) stock, securities or assets
with respect to or in exchange for Common Stock is referred to herein as
"Organic Change". Until October
13
31, 2001 (in which case this provision shall be void and of no effect),
prior to the consummation of any (i) sale of all or substantially all of
the Company's assets to an acquiring Person or (ii) other Organic Change
following which the Company is not a surviving entity, the Company will
secure from the Person purchasing such assets or the successor resulting
from such Organic Change (in each case, the "Acquiring Entity") a
written agreement (in form and substance satisfactory to the Holders of
a majority of the Preferred Shares then outstanding) to deliver to each
Holder of Preferred Shares in exchange for such shares, a security of
the Acquiring Entity evidenced by a written instrument substantially
similar in form and substance to the Preferred Shares, including,
without limitation, having a stated value and liquidation preference
equal to the Stated Value and the Liquidation Preference of the
Preferred Shares held by such Holder, and satisfactory to the Holders of
a majority of the Preferred Shares then outstanding. Prior to the
consummation of any other Organic Change, the Company shall make
appropriate provision (in form and substance satisfactory to the Holders
of a majority of the Preferred Shares then outstanding) to insure that
each of the Holders of the Preferred Shares will thereafter have the
right to acquire and receive in lieu of or in addition to (as the case
may be) the shares of Common Stock immediately theretofore acquirable
and receivable upon the conversion of such Holder's Preferred Shares
such shares of stock, securities or assets that would have been issued
or payable in such Organic Change with respect to or in exchange for the
number of shares of Common Stock which would have been acquirable and
receivable upon the conversion of such Holder's Preferred Shares as of
the date of such Organic Change (without taking into account any
limitations or restrictions on the convertibility of the Preferred
Shares).
Section 7. Reservation of Shares. The Company shall, at all
times so long as any of the Preferred Shares are outstanding, reserve
and keep available out of its authorized and unissued Common Stock,
solely for the purpose of effecting the conversion of the Preferred
Shares, such number of shares (the "Reserved Amount") of Common Stock as
shall from time to time be sufficient to effect the conversion of all of
the Preferred Shares then outstanding (the "Minimum Amount"). The
initial number of shares of Common Stock reserved for conversions of the
Preferred Shares and each increase in the number of shares so reserved
shall be allocated pro rata among the Holders of the Preferred Shares
based on the number of Preferred Shares held by each Holder at the time
of issuance of the Preferred Shares or increase in the number of
reserved shares, as the case may be. In the event a Holder shall sell or
otherwise transfer any of such Holder's Preferred Shares, each
transferee shall be allocated a pro rata portion of the number of
reserved shares of Common Stock reserved for such transferor. Any shares
of Common Stock reserved and allocated to any Person which ceases to
hold any Preferred Shares shall be allocated to the remaining Holders of
Preferred Shares, pro rata based on the number of Preferred Shares then
held by such Holders.
14
Section 8. Preferred Rank. All shares of Common Stock shall be
of junior rank to all Preferred Shares in respect to the preferences as
to distributions and payments upon the liquidation, dissolution and
winding up of the Company. The rights of the shares of Common Stock
shall be subject to the preferences and relative rights of the Preferred
Shares.
Section 9. Participation. Subject to the rights of the Holders,
if any, of the Pari Passu Shares, the Holders of the Preferred Shares
shall, as Holders of Preferred Stock, be entitled to such dividends paid
and distributions made to the holders of Common Stock to the same extent
as if such Holders of Preferred Shares had converted the Preferred
Shares into Common Stock (without regard to any limitations on
conversion herein or elsewhere) and had held such shares of Common Stock
on the record date for such dividends and distributions. Payments under
the preceding sentence shall be made concurrently with the dividend or
distribution to the holders of Common Stock.
Section 10. Vote to Change the Terms of Preferred Shares. The
affirmative vote at a meeting duly called for such purpose or the
written consent without a meeting, of the Holders of not less than
two-thirds (2/3) of the then outstanding Preferred Shares, shall be
required for any change to this Articles of Amendment to the Company's
Articles of Incorporation which would amend, alter, change or repeal any
of the powers, designations, preferences and rights of the Preferred
Shares.
Section 11. Lost or Stolen Certificates. Upon receipt by the
Company of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of any Preferred Stock Certificates
representing the Preferred Shares, and, in the case of loss, theft or
destruction, of any indemnification undertaking by the Holder to the
Company in customary form and, in the case of mutilation, upon surrender
and cancellation of the Preferred Stock Certificate(s), the Company
shall execute and deliver new preferred stock certificate(s) of like
tenor and date; provided, however, the Company shall not be obligated to
re-issue preferred stock certificates if the Holder contemporaneously
requests the Company to convert such Preferred Shares into Common Stock.
Section 12. Remedies, Characterizations, Other Obligations,
Breaches and Injunctive Relief. The remedies provided in this Articles
of Amendment shall be cumulative and in addition to all other remedies
available under this Articles of Amendment, at law or in equity
(including a decree of specific performance and/or other injunctive
relief), no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing
herein shall limit a Holder's right to pursue actual damages for any
failure by the Company to comply with the terms of this Articles of
Amendment. The Company covenants to each Holder of Preferred Shares that
there shall be no characterization concerning this instrument other than
as
15
expressly provided herein. Amounts set forth or provided for herein with
respect to payments, conversion and the like (and the computation
thereof) shall be the amounts to be received by the Holder thereof and
shall not, except as expressly provided herein, be subject to any other
obligation of the Company (or the performance thereof). The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Holders of the Preferred Shares and that the
remedy at law for any such breach may be inadequate. The Company
therefore agrees that, in the event of any such breach or threatened
breach, the Holders of the Preferred Shares shall be entitled, in
addition to all other available remedies, to an injunction restraining
any breach, without the necessity of showing economic loss and without
any bond or other security being required.
Section 13. Failure or Indulgence Not Waiver. No failure or
delay on the part of a Holder of Preferred Shares in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other
right, power or privilege.
Section 14. Residual Rights. All rights accruing to the
outstanding shares of this corporation not expressly provided for to the
contrary herein shall be vested in the Common Stock.
THIRD: The foregoing amendment was duly adopted on October 11, 1999, by the
Board of Directors of the corporation in accordance with the authority contained
in paragraph B of Article THIRD of the Articles of Incorporation. Pursuant to
Section 7-106-102 of the Colorado Business Corporation Act, the foregoing
amendment is effective without shareholder action.
Dated: November 3, 1999.
STAN LEE MEDIA, INC.,
By: /s/ Gill Champion
------------------------------------------
Gill Champion, Vice President and
Chief Operating Officer
16
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10KSB’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 10/31/01 | | 13 |
| Filed on: | | 3/20/00 |
| For Period End: | | 12/31/99 |
| | 11/3/99 | | 3 | | 16 | | | 8-K |
| | 10/11/99 | | 16 |
| List all Filings |
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