Amendment Certificate of Designation of Series A Convertible Preferred Stock


 EXHIBIT 4.3 
  

RATEXCHANGE CORPORATION 
  
 Amended Certificate Of Designation 
 Of Series A Convertible Preferred Stock 
  
 RateXchange Corporation (the “Corporation”), a corporation organized and existing under the provisions of the General Corporation Law of the State of Delaware, does hereby certify that the following resolution was adopted
by the Board of Directors of the Corporation: 
  
 RESOLVED, that
pursuant to the authority expressly granted to and vested in the Board of Directors of the Corporation (the “Board of Directors”) by the provisions of the Certificate of Incorporation of the Corporation (the “Certificate of
Incorporation”), there hereby is created, out of the shares of Preferred Stock, par value $0.0001 per share, of the Corporation authorized in the Certificate of Incorporation (the “Preferred Stock”), a series of the
Preferred Stock consisting of 2,000,000 shares, which series shall have the following powers, designations, preferences and relative, participating, optional or other rights and the following qualifications, limitations and restrictions (in addition
to the powers, designations, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions, set forth in the Certificate of Incorporation which are applicable to the Preferred Stock):

  
 Section 1.    Designation and
Amount.    The shares of such series shall be designated as “Series A Convertible Preferred Stock” (the “Series A Preferred Stock”) and the authorized number of shares constituting such series shall
be 2,000,000. The par value of the Series A Preferred Stock shall be $0.0001 per share. 
  
 Section 2.    Dividend Provisions.    The holders of shares of Series A Preferred Stock shall be entitled to receive dividends of additional shares of Series A Preferred
Stock at the rate of six percent (6%) per annum of the number of shares of Series A Preferred Stock then outstanding. Such dividends shall accrue and accumulate until paid. In addition, the holders of the Series A Preferred Stock shall be given 15
days advance written notice of the record date for determining holders of Common Stock entitled to receive a cash dividend to be paid on such Common Stock, so that the holders of the Series A Preferred Stock may, if they choose, elect to convert
their shares into shares of Common Stock and thereby be eligible to receive such cash dividend. 
  
 Section 3.    Liquidation Preference. 
  

(a)    In the event of any liquidation, dissolution or winding up of this corporation, either voluntary or involuntary, the holders
of Series A Preferred Stock shall be entitled to receive, prior and in preference to any distribution of any of the assets of this corporation to the holders of Common Stock by reason of their ownership thereof, an amount per share equal to the sum
of (A) $2.75 for each outstanding share of Series A Preferred Stock (the “Original Series A Issue Price”) and (B) an amount equal to declared but unpaid dividends on such share. If upon the occurrence of such event, the assets and
funds thus distributed among the 

  

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holders of the Series A Preferred Stock shall be insufficient to permit the payment to such holders of the full aforesaid preferential amounts, then the
entire assets and funds of this corporation legally available for distribution shall be distributed ratably among the holders of the Series A Preferred Stock in proportion to the preferential amount each such holder is otherwise entitled to receive.

  
 (b)    Upon the completion of the
distribution required by subparagraph (a) of this Section 3, the remaining assets of this corporation available for distribution to stockholders shall be distributed among the holders of Series A Preferred Stock and Common Stock pro rata based on
the number of shares of Common Stock held by each (assuming conversion of all such Series A Preferred Stock). 
  
 (i)    For purposes of this Section 3, unless otherwise agreed by vote or by written consent by holders of at least sixty-seven
percent (67%) of the then outstanding shares of Series A Preferred Stock, a liquidation, dissolution or winding up of this corporation shall be deemed to be occasioned by, or to include a sale of all or substantially all of the assets of this
corporation. 
  
 (ii)    In any of such
events, if the consideration received by this corporation is other than cash, the value of such consideration will be deemed its fair market value. Any securities shall be valued as follows: 
  
 (A)    Securities not subject to
investment letter or other similar restrictions on free marketability covered by (B) below: 
  
 (1)    If traded on a securities exchange or through the Nasdaq National Market, the value shall be deemed to be the
average of the closing prices of the securities on such quotation system over the thirty (30) day period ending three (3) days prior to the closing; 
  
 (2)    If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale
prices (whichever is applicable) over the thirty (30) day period ending three (3) days prior to the closing; and 
  
 (3)    If there is no active public market, the value shall be the fair market value thereof, as mutually determined
by this corporation and the holders of at least a majority of the voting power of all then outstanding shares of Preferred Stock. 
  
 (B)    The method of valuation of securities subject to investment letter or other restrictions on free marketability
(other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in (A) (1), (2) or (3) to reflect the
approximate fair market value thereof, as mutually determined by this 

  

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corporation and the holders of at least a majority of the voting power of all then outstanding shares of such Preferred Stock. 
  
 (iii)    In the event the requirements of this subsection
3(b) are not complied with, this corporation shall forthwith either: 
  
 (A)    cause such closing to be postponed until such time as the requirements of this Section 3 have been complied with; or 
  
 (B)    cancel such transaction, in which event the rights, preferences and privileges of
the holders of the Series A Preferred Stock shall revert to and be the same as such rights, preferences and privileges existing immediately prior to the date of the first notice referred to in subsection 3(b)(iv) hereof. 
  
 (iv)    This corporation shall give each holder of record
of Series A Preferred Stock written notice of such impending transaction not later than twenty (20) days prior to the stockholders’ meeting called to approve such transaction, if any, or twenty (20) days prior to the closing of such
transaction, whichever is earlier, and shall also notify such holders in writing of the final approval of such transaction. The first of such notices shall describe the material terms and conditions of the impending transaction and the provisions of
this Section 3, and this corporation shall thereafter give such holders prompt notice of any material changes. The transaction shall in no event take place sooner than twenty (20) days after this corporation has given the first notice provided for
herein or sooner than ten (10) days after this corporation has given notice of any material changes provided for herein; provided, however, that such periods may be shortened upon the written consent of the holders of Preferred Stock that are
entitled to such notice rights or similar notice rights and that represent at least a majority of the voting power of all then outstanding shares of such Preferred Stock. 
  
 Section 4.    Redemption.    The Series A Preferred Stock is not redeemable.

  
 Section
5.    Conversion.    The holders of the Series A Preferred Stock shall have conversion rights as follows (the “Conversion Rights”): 
  
 (a)    Right to
Convert.    Each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share, at the office of this corporation or any transfer agent for
such stock, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Original Series A Issue Price by the Conversion Price applicable to such share, determined as hereafter provided, in effect on the
date the certificate is surrendered for conversion. The initial Conversion Price per share for shares of Series A Preferred Stock shall be the Original Series A Issue Price; provided, however, that the Conversion Price for the Series A Preferred
Stock shall be subject to adjustment as set forth in subsection 5(c). In addition, each share of Series A Preferred Stock shall automatically be converted into shares of Common Stock at the Conversion Price at the time in effect for such Series A
Preferred Stock on the first date after which all of the following conditions are satisfied: (i) the fourth anniversary of the Purchase Date has occurred; 
  

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(ii) the Common Stock is publicly traded on the American Stock Exchange, other national stock exchange, or the NASDAQ National Market on such date, and (3)
the closing price for the Common Stock has equaled or exceeded $6.00 per share (as adjusted for any stock splits or other recapitalizations after the date hereof) for the ten consecutive trading days immediately prior to such date. 
  
 (b)    Mechanics of
Conversion.    Before any holder of Series A Preferred Stock shall be entitled to convert the same into shares of Common Stock, he or she shall surrender the certificate or certificates therefor, duly endorsed, at the office
of this corporation or of any transfer agent for the Series A Preferred Stock, and shall give written notice to this corporation at its principal corporate office of the election to convert the same and shall state therein the name or names in which
the certificate or certificates for shares of Common Stock are to be issued. This corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series A Preferred Stock, or to the nominee or nominees of
such holder, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such
surrender of the shares of Series A Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such
shares of Common Stock as of such date. If the conversion is in connection with an underwritten offering of securities registered pursuant to the Securities Act of 1933, as amended, the conversion may, at the option of any holder tendering Series A
Preferred Stock for conversion, be conditioned upon the closing with the underwriters of the sale of securities pursuant to such offering, in which event the person(s) entitled to receive the Common Stock upon conversion of the Series A Preferred
Stock shall not be deemed to have converted such Series A Preferred Stock until immediately prior to the closing of such sale of securities. 
  
 (c)    Conversion Price Adjustments of Preferred Stock for New Issuance, Splits, Dividends and
Combinations.    The Conversion Price of the Series A Preferred Stock shall be subject to adjustment from time to time as follows: 
  
 (i) 
  
 (A)    If this corporation shall issue, after the date upon which any shares of Series A Preferred Stock were first
issued (the “Purchase Date”), any Additional Stock (as defined below) without consideration or for a consideration per share less than the Conversion Price for such series in effect immediately prior to the issuance of such
Additional Stock, the Conversion Price for such series in effect immediately prior to each such issuance shall forthwith (except as otherwise provided in this clause (i)) be adjusted to a price determined by multiplying such Conversion Price by a
fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance (including shares of Common Stock deemed to be issued pursuant to subsection 5(c)(i)(E)(1) or (2)) plus the number of
shares of Common Stock that the aggregate consideration received by this corporation for such issuance would purchase at such Conversion Price; and the denominator of which shall 

  

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be the number of shares of Common Stock outstanding immediately prior to such issuance (including shares of Common Stock deemed to be issued pursuant to
subsection 5(c)(i)(E)(1) or (2)) plus the number of shares of such Additional Stock. 
  
 (B)    No adjustment of the Conversion Price for the Series A Preferred Stock shall be made in an amount less than one
cent per share, provided that any adjustments that are not required to be made by reason of this sentence shall be carried forward and shall be either taken into account in any subsequent adjustment made prior to three (3) years from the date of the
event giving rise to the adjustment being carried forward, or shall be made at the end of three (3) years from the date of the event giving rise to the adjustment being carried forward. Except to the limited extent provided for in subsections (E)(3)
and (E)(4), no adjustment of such Conversion Price pursuant to this subsection 5(c)(i) shall have the effect of increasing the Conversion Price above the Conversion Price in effect immediately prior to such adjustment. 
  
 (C)    In the case of the issuance of
Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by this corporation for any underwriting or otherwise
in connection with the issuance and sale thereof. 
  
 (D)    In the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, 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. 
  
 (E)    In the case of the issuance (whether before, on or after the applicable Purchase Date) of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for
Common Stock or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions shall apply for all purposes of this subsection 5(c)(i) and subsection 5(c)(ii). 
  
 (1)    The aggregate maximum number of
shares of Common Stock deliverable upon exercise (assuming the satisfaction of any conditions to exercisability, including without limitation, the passage of time, but without taking into account potential antidilution adjustments) of such options
to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in subsections 5(c)(i)(C)
and (c)(i)(D)), if any, received by the corporation upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights (without taking into account potential antidilution adjustments) for the Common Stock
covered thereby. 
  

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 (2)    The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange (assuming the satisfaction of any conditions to convertibility or exchangeability, including, without limitation, the passage of time, but without taking into account potential antidilution adjustments)
for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued
at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the corporation for any such securities and related options or rights (excluding any cash received
on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the corporation (without taking into account potential antidilution adjustments) upon the conversion or exchange of such
securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in subsections 5(c)(i)(C) and (c)(i)(D)). 
  
 (3)    In the event of any change in the number of shares of Common Stock deliverable or
in the consideration payable to this corporation upon exercise of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution
provisions thereof (unless such options or rights or convertible or exchangeable securities were merely deemed to be included in the numerator and denominator for purposes of determining the number of shares of Common Stock outstanding for purposes
of subsection 5(c)(i)(A)), the Conversion Price of the Series A Preferred Stock, to the extent in any way affected by or computed using such options, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall
be made for the actual issuance of Common Stock or any payment of such consideration upon the exercise of any such options or rights or the conversion or exchange of such securities. 
  
 (4)    Upon the expiration of any such options or rights, the termination of any such
rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Conversion Price of the Series A Preferred Stock, to the extent in any way affected by or computed using such
options, rights or securities or options or rights related to such securities (unless such options or rights were merely deemed to be included in the numerator and denominator for purposes of determining the number of shares of Common Stock
outstanding for purposes of subsection 5(c)(i)(A)), shall be recomputed to reflect the issuance of only the number of shares of Common Stock (and convertible or exchangeable securities that remain in effect) actually issued upon the exercise of such
options or rights, upon the conversion or exchange of such securities or upon the exercise of the options or rights related to such securities. 
  

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 (5)    The number of shares of Common Stock deemed issued and the
consideration deemed paid therefor pursuant to subsections 5(c)(i)(E)(1) and (2) shall be appropriately adjusted to reflect any change, termination or expiration of the type described in either subsection 5(c)(i)(E)(3) or (4). 
  
 (ii)    “Additional Stock” shall mean
any shares of Common Stock issued (or deemed to have been issued pursuant to subsection 5(c)(i)(E)) by this corporation after the Purchase Date other than 
  
 (A)    Common Stock issuable or issued pursuant to a transaction described in subsection 5(c)(iii) hereof; 

 
 (B)    up to 5,000,000 shares of
Common Stock issuable or issued to employees, consultants or directors of this corporation directly or pursuant to a stock incentive plan or restricted stock plan approved by the Board of Directors of this corporation; 
  
 (C)    up to 16,131,815 shares of Common
Stock issuable or issued upon exercise of options or warrants outstanding as of the Purchase Date; 
  
 (D)    shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock or as dividends or
distributions on the Series A Preferred Stock; or 
  
 (E)    shares of Common Stock issued, or shares of Common Stock issuable upon the conversion of warrants issued, in connection with a private round of equity financing. 
  
 (iii)    In the event this corporation should at any time
or from time to time after the Purchase Date fix a record date for the effectuation of a split or subdivision of the outstanding shares of Common Stock or the determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly, additional shares of Common Stock (hereinafter referred to as
“Common Stock Equivalents”) without payment of any consideration by such holder for the additional shares of Common Stock or the Common Stock Equivalents (including the additional shares of Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date of such dividend distribution, split or subdivision if no record date is fixed), the Conversion Price of the Series A Preferred Stock shall be appropriately decreased so that the number of
shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase of the aggregate of shares of Common Stock outstanding and those issuable with respect to such Common Stock Equivalents.

  

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 (iv)    If the number of shares of Common Stock outstanding at any time after the
Purchase Date is decreased by a combination of the outstanding shares of Common Stock, then, following the record date of such combination, the Conversion Price for the Series A Preferred Stock shall be appropriately increased so that the number of
shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease in outstanding shares. 
  
 (d)    Other Distributions.    In the event this corporation shall declare a distribution payable in
securities of other persons, evidences of indebtedness issued by this corporation or other persons, assets (excluding cash dividends) or options or rights not referred to in subsection 5(c)(iii), then, in each such case for the purpose of this
subsection 5(d), the holders of the Series A Preferred Stock shall be entitled to a proportionate share of any such distribution as though they were the holders of the number of shares of Common Stock of this corporation into which their shares of
Series A Preferred Stock are convertible as of the record date fixed for the determination of the holders of Common Stock of this corporation entitled to receive such distribution. 
  
 (e)    Recapitalizations.    If at any time or from time to time there shall
be a recapitalization of the Common Stock (other than a subdivision, combination or merger or sale of assets transaction provided for elsewhere in this Section 5 or in Section 3) provision shall be made so that the holders of the Series A Preferred
Stock shall thereafter be entitled to receive upon conversion of the Series A Preferred Stock the number of shares of stock or other securities or property of this corporation or otherwise to which a holder of Common Stock deliverable upon
conversion would have been entitled on such recapitalization. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5 with respect to the rights of the holders of the Series A Preferred Stock
after the recapitalization to the end that the provisions of this Section 5 (including adjustment of the Conversion Price then in effect and the number of shares purchasable upon conversion of the Series A Preferred Stock) shall be applicable after
that event as nearly equivalent as may be practicable. 
  
 (f)    No Impairment.    This corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by this corporation, but will at all times in good faith assist in
the carrying out of all the provisions of this Section 5 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of the Series A Preferred Stock against impairment. 

 
 (g)    No Fractional Shares and Certificate as to
Adjustments. 
  
 (i)    No fractional
shares shall be issued upon the conversion of any share or shares of the Series A Preferred Stock, and the number of shares of Common Stock to be issued shall be determined by rounding to the nearest whole share. Such conversion shall be 

 

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determined on the basis of the total number of shares of Series A Preferred Stock the holder is at the time converting into Common Stock and such rounding
shall apply to the number of shares of Common Stock issuable upon such aggregate conversion. 
  
 (ii)    Upon the occurrence of each adjustment or readjustment of the Conversion Price of Series A Preferred Stock pursuant to this Section 5, this corporation, at its expense, shall promptly
compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each holder of Series A Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based. This corporation shall, upon the written request at any time of any holder of Series A Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (A) such adjustment
and readjustment, (B) the Conversion Price for such series of Preferred Stock at the time in effect, and (C) the number of shares of Common Stock and the amount, if any, of other property that at the time would be received upon the conversion of a
share of Series A Preferred Stock. 
  
 (h)    Notices of Record Date.    In the event of any taking by this corporation of a record of the holders of any class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend) or other distribution, any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right, this
corporation shall mail to each holder of Series A Preferred Stock, at least twenty (20) days prior to the date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right. 
  
 (i)    Reservation of Stock Issuable Upon Conversion.    This corporation shall at all times reserve and keep available out of its authorized but unissued shares of
Common Stock and Preferred Stock, solely for the purpose of effecting the conversion of the shares of the Series A Preferred Stock and for paying the dividend required pursuant to Section 2 hereof, such number of its shares of Common Stock and
Preferred Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series A Preferred Stock and to pay all accumulated dividends; and if at any time the number of authorized but unissued shares of
Common Stock or Preferred Stock shall not be sufficient for either such purpose, in addition to such other remedies as shall be available to the holder of such Series A Preferred Stock, this corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock or Preferred Stock, as the case may be, to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in
best efforts to obtain the requisite stockholder approval of any necessary amendment to this Certificate 
  
 (j)    Notices.    Any notice required by the provisions of this Section 5 to be given to the holders of
shares of Series A Preferred Stock shall be deemed given if deposited in the United States mail, postage prepaid, and addressed to each holder of record at his address appearing on the books of this corporation. 
  

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 Section 6.    Voting Rights. 
  
 (a)    General Voting
Rights.    The holder of each share of Series A Preferred Stock shall have the right to one vote for each share of Common Stock into which such share of Series A Preferred Stock could then be converted, and with respect to
such vote, such holder shall have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock, and shall be entitled, notwithstanding any provision hereof, to notice of any stockholders’ meeting in
accordance with the bylaws of this Corporation, and shall be entitled to vote, together with holders of Common Stock, with respect to any question upon which holders of Common Stock have the right to vote. Fractional votes shall not, however, be
permitted and any fractional voting rights available on an as-converted basis (after aggregating all shares into which shares of Series A Preferred Stock held by each holder could be converted) shall be rounded to the nearest whole number (with
one-half being rounded upward). 
  
 (b)    Voting for the Election of Directors.    As long as 1,000,000 or more of the shares of Series A Preferred Stock originally issued remain outstanding, the holders of such shares of Series
A Preferred Stock shall be entitled to elect two (2) directors of this corporation at each annual election of directors. In the case of any vacancy (other than a vacancy caused by removal) in the office of a director occurring among the directors
elected by the holders of the Series A Preferred Stock pursuant to this Section 6(b), the remaining director so elected by that class or series (or if there are no such directors remaining, the holders of a majority of the shares of that class or
series), may elect a successor or successors to hold office for the unexpired term of the director or directors whose place or places shall be vacant. Any director who shall have been elected by the holders of a class or series of stock or by any
directors so elected as provided in the immediately preceding sentence hereof may be removed during the aforesaid term of office, either with or without cause, by, and only by, the affirmative vote of the holders of the shares of the class or series
of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders, and any vacancy thereby created may be filled by the holders
of that class or series of stock represented at the meeting or pursuant to unanimous written consent. 
  
 Section 7.    Protective Provisions. 
  

(a)    So long as at least 1,000,000 shares of Series A Preferred Stock remain outstanding, this corporation shall not take any of
the following actions without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least 66b% of the then outstanding shares of Series A Preferred Stock: 
  
 (i)    alter or change the rights, preferences or
privileges, or the restrictions provided for the benefit of the shares of Series A Preferred Stock; 
  
 (ii)    authorize or issue, or obligate itself to issue, any other equity security, including any other security convertible into or
exercisable for any equity security having a preference over, or being on a parity with, the Series A Preferred Stock with respect to dividends or upon liquidation; or 
  

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 (iii)    reclassify any outstanding stock into shares having a preference over, or on
a parity with, the Series A Preferred Stock with respect to liquidation preferences or dividends. 
  
 This Amended Certificate of Designation has been signed by the President of this corporation on March 12, 2003. 
  
  
  
  

	 /s/    D. JONATHAN MERRIMAN


	 Chairman and Chief Executive Officer
  
 D. Jonathan Merriman



  

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