ON THE VOLUNTARY CONVERSION DATE (AS DEFINED IN
SECTION 5(B)(I) HEREOF).
(D)
FOR PURPOSES HEREOF, UNLESS THE CONTEXT OTHERWISE REQUIRES,
"DISTRIBUTION" SHALL MEAN THE TRANSFER OF CASH OR PROPERTY WITHOUT
CONSIDERATION, WHETHER BY WAY OF DIVIDEND OR OTHERWISE, PAYABLE OTHER THAN IN
SHARES OF COMMON STOCK OR OTHER EQUITY SECURITIES OF THE COMPANY, OR THE
PURCHASE OR REDEMPTION OF SHARES OF THE COMPANY (OTHER THAN REDEMPTIONS SET
FORTH IN SECTION 8 BELOW OR] REPURCHASES OF COMMON STOCK HELD BY EMPLOYEES OR
CONSULTANTS OF THE COMPANY UPON TERMINATION OF THEIR EMPLOYMENT OR SERVICES
PURSUANT TO AGREEMENTS PROVIDING FOR SUCH REPURCHASE OR UPON THE CASHLESS
EXERCISE OF OPTIONS HELD BY EMPLOYEES OR CONSULTANTS) FOR CASH OR PROPERTY.
(E)
THE COMPANY SHALL NOT DECLARE, PAY OR SET ASIDE ANY DIVIDENDS ON
SHARES OF ANY OTHER CLASS OR SERIES OF CAPITAL STOCK OF THE COMPANY (OTHER THAN
DIVIDENDS ON SHARES OF
2
COMMON STOCK PAYABLE IN SHARES OF COMMON STOCK IN EACH CASE SUBJECT TO
ADJUSTMENT AS PROVIDED IN SECTION 4(E)(II)) UNLESS (IN ADDITION TO THE OBTAINING
OF ANY CONSENTS REQUIRED ELSEWHERE IN THIS CERTIFICATE OF DESIGNATION AND THE
ARTICLES OF INCORPORATION) THE HOLDERS OF THE SERIES A PREFERRED STOCK THEN
OUTSTANDING SHALL FIRST RECEIVE, OR SIMULTANEOUSLY RECEIVE, A DIVIDEND ON EACH
OUTSTANDING SHARE OF SERIES A PREFERRED STOCK IN AN AMOUNT AT LEAST EQUAL TO (I)
IN THE CASE OF A DIVIDEND ON COMMON STOCK OR ANY CLASS OR SERIES THAT IS
CONVERTIBLE INTO COMMON STOCK, THAT DIVIDEND PER SHARE OF SERIES A PREFERRED
STOCK AS WOULD EQUAL THE PRODUCT OF (A) THE DIVIDEND PAYABLE ON EACH SHARE OF
SUCH CLASS OR SERIES DETERMINED, IF APPLICABLE, AS IF ALL SHARES OF SUCH CLASS
OR SERIES HAD BEEN CONVERTED INTO COMMON STOCK AND (B) THE NUMBER OF SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION OF A SHARE OF SERIES A PREFERRED STOCK, IN
EACH CASE CALCULATED ON THE RECORD DATE FOR DETERMINATION OF HOLDERS ENTITLED TO
RECEIVE SUCH DIVIDEND (THE "RECORD DATE") OR (II) IN THE CASE OF A DIVIDEND ON
ANY CLASS OR SERIES THAT IS NOT CONVERTIBLE INTO COMMON STOCK, AT A RATE PER
SHARE OF SERIES A PREFERRED STOCK DETERMINED BY (A) DIVIDING THE AMOUNT OF THE
DIVIDEND PAYABLE ON EACH SHARE OF SUCH CLASS OR SERIES OF CAPITAL STOCK BY THE
ORIGINAL ISSUANCE PRICE OF SUCH CLASS OR SERIES OF CAPITAL STOCK (SUBJECT TO
APPROPRIATE ADJUSTMENT IN THE EVENT OF ANY STOCK DIVIDEND, STOCK SPLIT,
COMBINATION OR OTHER SIMILAR RECAPITALIZATION WITH RESPECT TO SUCH CLASS OR
SERIES) AND (B) MULTIPLYING SUCH FRACTION BY AN AMOUNT EQUAL TO THE SERIES A
ORIGINAL ISSUE PRICE (AS DEFINED BELOW); PROVIDED THAT, IF THE CORPORATION
DECLARES, PAYS OR SETS ASIDE, ON THE SAME DATE, A DIVIDEND ON SHARES OF MORE
THAN ONE CLASS OR SERIES OF CAPITAL STOCK OF THE CORPORATION, THE DIVIDEND
PAYABLE TO THE HOLDERS OF SERIES A PREFERRED STOCK PURSUANT TO THIS SECTION 2
SHALL BE CALCULATED BASED UPON THE DIVIDEND ON THE CLASS OR SERIES OF CAPITAL
STOCK THAT