EXHIBIT 4.3
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS, IN RELIANCE UPON
EXEMPTIONS FROM REGISTRATION FOR NON-PUBLIC OFFERINGS. THIS SECURITY MAY NOT BE
SOLD OR TRANSFERRED UNLESS IT IS REGISTERED UNDER THE ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IT THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
ALPNET, INC.
INCORPORATED UNDER THE LAWS OF THE
STATE OF UTAH
$2.81 CONVERTIBLE, VOTING, NON-CUMULATIVE 10%
PREFERRED STOCK, SERIES D, WITHOUT PAR VALUE
TOTAL AUTHORIZED ISSUE: 87,339 SHARES
CERTIFICATE NUMBER *87,339*
*PD001* SHARES OF SERIES D PREFERRED STOCK
THIS IS TO CERTIFY THAT, FOR VALUE RECEIVED, XXXXXXX X. XXXXXXX (the
"HOLDER"), is the registered holder of *87,339* shares of the $2.81 convertible,
voting, non-cumulative 10% preferred stock, series D, without par value (the
"SERIES D PREFERRED STOCK") of ALPNET, INC., a Utah corporation (the "COMPANY"),
which stock is fully paid and nonassessable and which stock is transferable on
the books of Company by Xxxxxx in person or by Xxxxxx's attorney upon surrender
of this certificate (the "CERTIFICATE") properly endorsed.
In this Certificate, the term "COMMON STOCK" shall refer to the common
stock, no par value per share, of Company. The Series D Preferred Stock
represented by this Certificate is subject to the following terms and
conditions:
1. DESIGNATION. The shares of Series D Preferred Stock shall have such
designations, powers and preferences and related voting, dividend, conversion
and other rights, qualifications, limitations and restrictions as are set forth
herein. Subject to the provisions of paragraphs 13 and 14 relating to Company's
Series B and Series C Preferred Stock (as defined herein), all shares of
Company's preferred stock of all series shall be of equal rank.
2. DIVIDEND PREFERENCE. Holder shall be entitled to receive a cash
dividend or distribution (the "DIVIDEND") for each share of Series D Preferred
Stock at the rate of ten percent (10%) per annum on the original $2.81 issue
amount of such share, subject to the following terms and conditions:
2.1. Dividends shall be declared and paid, in full or in part, only
when funds for payment of the same are legally available and if, when and as the
board of directors (the "BOARD") of Company, in its sole discretion, shall deem
the same to be advisable. The determination by the Board of the amount
available for payment of Dividends shall be binding and conclusive on the
holders of all stock of Company outstanding at the time.
2.2. Dividends on Series D Preferred Stock shall be non-cumulative,
so that if the full amount of Dividends have not been paid on the Series D
Preferred Stock for any particular fiscal year of Company (the "FISCAL YEAR"),
then Holder shall not be entitled to receive a Dividend payment in later Fiscal
Years to make up for the earlier shortage.
2.3. If the stated dividends or distributions for each series of
Company's preferred stock are not declared in full, are not set apart for
payment in full or are not paid in full, then, subject to the provisions of
paragraphs 13 and 14, the shares of all series of Company's preferred stock
shall share ratably in the payment of available distributions or dividends in
proportion to the amounts that would be payable with respect to the shares if
all dividends or distributions were declared and paid in full.
2.4. In any given Fiscal Year, unless and until a full dividend or
distribution has been declared and paid for all series of preferred stock,
Company shall not (a) declare or pay any dividends on its Common Stock; (b) make
any distributions with respect to its Common Stock; or (c) redeem, retire or
otherwise acquire for a valuable consideration any of its Common Stock.
3. LIQUIDATION PREFERENCE. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of Company, or any reduction in Company's
capital resulting in any distribution of assets to its stockholders
(collectively the "LIQUIDATION"), Holder shall be entitled to receive the amount
of $2.81 for each share of Series D Preferred Stock owned by Holder, plus an
amount equal to all declared, but unpaid dividends, if any, on such shares,
before any amount shall be paid to the holders of Common Stock but subject to
the provisions of paragraphs 13 and 14 and subject to a ratable sharing with
holders of other series of Company's preferred stock as described below. Such
payment may be in cash or out of the assets of Company, and may be from
Company's capital or earnings, but only to the extent that the same are legally
available. For the purposes of this paragraph, the following events shall not
be deemed to be a liquidation, dissolution or winding up of Company: (a) a
consolidation or merger of Company with or into any other corporation or
corporations; and (b) a disposition by Company of all or substantially all of
its assets. Holder shall not be entitled to receive any amounts with respect to
Series D Preferred Stock upon any Liquidation other than the amounts that are
specifically provided for in this paragraph. Notwithstanding the foregoing, if
the assets of Company that are available for distribution to stockholders of
preferred stock upon a Liquidation are insufficient to pay in full the amounts
payable to the holders of all series of Company's preferred stock upon
Liquidation, then, subject to the provisions of paragraphs 13 and 14, the shares
of all series of Company's preferred stock shall share ratably in any available
distribution of assets in proportion to the amounts that would be payable with
respect to the shares if Company's assets were sufficient to permit the payment
in full of those amounts.
4. VOTING RIGHTS. For each share of Series D Preferred Stock, Holder
shall have the right to that number of votes equal to the number of votes
appurtenant to the number of shares of Common Stock issuable upon conversion of
said share of Series D Preferred Stock into Common Stock. Holders of Series D
Preferred Stock, holders of other series of Company's voting preferred shares
that can be converted into Common Stock (voting the number of shares of Common
Stock into which the preferred stock could be converted) and holders of Common
Stock shall vote as a single class, except as otherwise provided by law or by
Company's articles of incorporation.
5. VOLUNTARY CONVERSION. Holder shall have the right, at his option, to
convert shares of Series D Preferred Stock into fully paid and nonassessable
shares of Common Stock (or to stock of Company to which said Common Stock may be
changed from time to time hereafter) on the following terms and conditions:
5.1. The conversion ratio (the "CONVERSION RATIO")
shall be nine shares of Common Stock for each one share of Series D Preferred
Stock (rounded to the nearest whole number of shares); provided, however, that
the Conversion Ratio shall be subject to adjustment from time to time as
provided in subparagraph 5.4.
5.2. No fractional shares or scrip representing fractional shares
shall be issued upon conversion of Series D Preferred Stock into Common Stock.
5.3. Holder may effect a conversion of all or part of the Series D
Preferred Stock into Common Stock at any time or from time to time on or after
the date hereof by presentation and surrender of this Certificate to Company,
together with a written election to exercise such conversion option. If the
conversion option is exercised in part only, then upon surrender of this
Certificate for cancellation, Company shall execute and deliver a new
Certificate for the remaining Series D Preferred Stock in form and substance
otherwise identical to the Certificate. Upon receipt by Company of this
Certificate, in proper form for exercise of the conversion option, Holder shall
be deemed to be the holder of record of the shares of Common Stock issuable upon
such conversion, notwithstanding that the stock transfer books of Company shall
then be closed or that certificates representing such shares of Common Stock
shall not then be actually delivered to Holder.
5.4. The Conversion Ratio shall be subject to adjustment in
accordance with the following terms and conditions:
5.4.1. If at any time, or from time to time, Company shall (a)
subdivide its outstanding shares of Common Stock into a greater number of
shares, (b) pay a dividend in shares of its Common Stock or (c) make a
distribution in shares of its Common Stock, then the number of shares of Common
Stock then deliverable upon conversion of Series D Preferred Stock into Common
Stock shall be proportionately increased, and, conversely, if the outstanding
shares of the Common Stock shall be combined into a smaller number of shares,
then the number of shares of Common Stock then deliverable upon conversion of
Series D Preferred Stock into Common Stock shall be proportionately decreased.
5.4.2. In the case of (a) any classification, reclassification
or other reorganization of the capital stock of Company, (b) the consolidation
or merger of Company with or into another corporation or (c) the conveyance to
another corporation of all or any major portion of the assets of Company
(collectively referred to herein as the "RECONFIGURATION"), then as part of such
Reconfiguration:
5.4.2.1. Adequate provision shall be made
whereby Holder, upon conversion of Series D Preferred Stock as herein provided,
shall be entitled to receive on the same basis and conditions as holders of
Common Stock, the stock, securities or other property which Holder would have
been entitled to receive upon such Reconfiguration, if Holder had converted the
Series D Preferred Stock into Common Stock immediately prior to the
Reconfiguration.
5.4.2.2. Appropriate provision shall be made with
respect to the rights and interests of Holder to the end that the provisions of
this paragraph 5 shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or other property thereafter
deliverable upon the conversion of Series D Preferred Stock as herein provided.
5.4.2.3. As a condition of any such Recon-
figuration, any corporation which shall become successor to Company by reason of
such Reconfiguration shall expressly assume the obligation to deliver, upon the
conversion of Series D Preferred Stock as herein provided, such shares of stock,
securities or other consideration as Holder shall be entitled to receive
pursuant to the provisions hereof.
The foregoing provisions shall similarly apply to successive Reconfigurations of
or by any such successor.
5.4.3. Notwithstanding anything in this subparagraph 5.4 to the
contrary, Company shall not be required to give effect to any adjustment in the
Conversion Ratio unless and until the net effect of one or more adjustments,
determined as provided above, shall have resulted in a change of the Conversion
Ratio by at least five percent (5%), but when the cumulative net effect of more
than one adjustment so determined shall be to change the Conversion Ratio by at
least five percent (5%), then such change in the Conversion Ratio shall
thereupon be given effect.
5.4.4. Upon any adjustment to the Conversion Ratio, Holder shall
surrender the Certificate to Company, and Company shall issue a new Certificate
to Holder reflecting such adjustments; provided, however, that nothing contained
herein shall modify or restrict such adjustments if the Certificate is not so
surrendered.
5.4.5. Whenever the Conversion Ratio is adjusted as herein
provided, Company shall promptly file with Company's transfer agent for the
Common Stock of Company a statement signed by appropriate officers of Company
setting forth the adjusted Conversion Ratio. The statement shall set forth in
reasonable detail the reason for and the manner of computing such adjustment.
5.4.6. Company shall pay any and all taxes which may be imposed
upon it with respect to the issuance and delivery of Common Stock upon
conversion of Series D Preferred Stock as herein provided. However, in no event
shall Company be required to pay any transfer or other taxes by reason of the
issuance of such Common Stock in names other than those in which the Series D
Preferred Stock surrendered for conversion may stand, and no conversion or
issuance of Common Stock in such case shall be made unless and until the person
requesting such issuance has paid to Company the amount of any such tax, or has
established to the satisfaction of Company and its transfer agent, if any, that
such tax has been paid. Upon any conversion of Series D Preferred Stock, as
herein provided, no adjustment or allowance shall be made for future Dividends
on the Series D Preferred Stock so converted, and all rights to future
Dividends, if any, shall cease and be deemed satisfied; provided, however, that
nothing contained herein shall relieve Company from its obligation to pay any
dividends which shall have been declared and shall be payable to Holder with
respect to the Series D Preferred Stock being converted as of a date prior to
the date of such conversion even though the payment date for such dividend is
subsequent to the date of conversion.
5.4.7. Series D Preferred Stock that is surrendered upon
conversion into Common Stock shall not be reissued, and no Series D Preferred
Stock shall be issued in lieu thereof or in exchange thereof.
5.5. At all times Company shall reserve for issuance and/or
delivery upon conversion of Series D Preferred Stock into Common Stock such
number of authorized but unissued shares of Common Stock as shall be required
for issuance or delivery upon such conversion.
5.6. All shares of Common Stock which may be issued upon conversion
of the shares of Series D Preferred Stock evidenced hereby will upon issuance by
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 Company
shall take no action which shall cause a contrary result.
6. EXCHANGE, ASSIGNMENT OR LOSS OF CERTIFICATE. This Certificate is
exchangeable, without expense, at the option of Holder, upon presentation and
surrender hereof to Company for other certificates of different denominations.
This Certificate may only be transferred, assigned or hypothecated subject to
the provisions of paragraph 8. Any such assignment shall be made by surrender
of this Certificate to Company with such documentation as Company shall require
and funds sufficient to pay any transfer tax; whereupon Company shall, without
charge, execute and deliver a new Certificate in the name of the assignee named
in such instrument of assignment, and this Certificate shall promptly be
cancelled. This Certificate may be divided or combined with other certificates
which carry the same rights upon presentation hereof at the office of Company,
together with a written notice signed by Holder specifying the names and
denominations in which new certificates are to be issued. The term
"CERTIFICATE" as used herein includes any Certificates issued in substitution
for or replacement of this Certificate, or into which this Certificate may be
divided or exchanged. Upon receipt by Company of evidence satisfactory to it of
the loss, theft, destruction or mutilation of this Certificate, and in the case
of loss, theft or destruction, of an indemnification reasonably satisfactory to
Company, and in the case of mutilation, upon surrender and cancellation of this
Certificate, Company will execute and deliver a new Certificate of like tenor.
Any such new Certificate executed and delivered shall be the legal, valid and
binding obligation of Company, whether or not this Certificate so lost, stolen,
destroyed, or mutilated shall be at any time enforceable by anyone.
7. EXCLUSION OF ADDITIONAL RIGHTS. The shares of Series D Preferred
Stock shall have no preemptive or subscription rights.
8. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
8.1. Neither the Series D Preferred Stock nor the Common Stock or
any other security issued or issuable upon an exercise of the conversion option
hereunder may be sold, transferred or otherwise disposed of except to a person
who, in the reasonable opinion of counsel for Company, is a person to whom the
Series D Preferred Stock or the Common Stock may legally be transferred
(pursuant to paragraph 6 or otherwise) without registration and without the
delivery of a current prospectus under the Act with respect thereto and then
only against receipt of an agreement of such person to comply with the
provisions of this paragraph with respect to any resale or other disposition of
such securities.
8.2. Company may, if it so elects, cause the following legend (or
one similar to it) to be set forth on each certificate representing the Common
Stock or any other security issued or issuable upon an exercise of the
conversion option hereunder, which security has not theretofore been registered
for distribution to the public unless counsel for Company is of the reasonable
opinion as to any such certificate that such legend is unnecessary:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS, IN RELIANCE
UPON EXEMPTIONS FROM REGISTRATION FOR NON-PUBLIC OFFERINGS. THIS
SECURITY MAY NOT BE SOLD OR TRANSFERRED UNLESS IT IS REGISTERED UNDER THE
ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS THE ISSUER
RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
9. REGISTRATION.
9.1. Upon the written request of Xxxxxx, Company agrees to register
with the United States Securities and Exchange Commission (the "S.E.C.") and to
qualify under any applicable Blue Sky or other state securities laws, from time
to time, the offer and sale by Holder of the Common Stock issued, from time to
time, as a result of the conversion of shares of Series D Preferred Stock into
Common Stock. Said registration and qualification shall be accomplished within
90 days after Company files its next annual Form 10-K report with the S.E.C.
following the exercise of Xxxxxx's conversion option hereunder; provided,
however, Company shall not be obligated to register and/or qualify on behalf of
Holder fewer than an aggregate of 200,000 such shares in any one registration
and/or qualification.
9.2. All expenses incurred in connection with any registration or
qualification pursuant to this paragraph 9, including, without limitation, all
registration, filing, and qualification fees, printing expenses, fees and
disbursements of counsel for Company, and expenses of any special audits
incidental to or required by such registration, shall be borne by Company.
9.3. In the case of each registration and qualification effected by
Company pursuant to this paragraph 9, Company will keep Holder advised in
writing as to the initiation of each such registration and qualification and as
to the completion thereof. At its expense Company will:
9.3.1. Keep such registration and qualification effective for a
period of 120 days or until the distribution described in the registration
statement relating thereto has been completed, whichever first occurs; and
9.3.2. Furnish such number of prospectuses and other documents
incident thereto as Xxxxxx from time to time may reasonably request.
9.4. Company and Holder shall be entitled to the following rights
of indemnification in connection with this Certificate:
9.4.1. Company will indemnify Holder with respect to any
registration and qualification effected pursuant to this paragraph 9 against all
claims, losses, damages, and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration or qualification, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
Company of any rule or regulation promulgated under the Act or any state
securities law applicable to Company and relating to action or inaction required
of Company in connection with any such registration or qualification, and will
reimburse Holder for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, provided that Company will not be liable in any such case
to the extent that any such claim, loss, damage or liability arises out of or is
based on any untrue statement or omission based upon written information
furnished to Company in an instrument duly executed by Xxxxxx specifically for
use therein.
9.4.2. Holder will indemnify Company, each of its directors and
officers who sign such registration statement, and each person who controls
Company within the meaning of the Act, with respect to any registration and
qualification effected pursuant to this paragraph 9, against all claims, losses,
damages, and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement of a material fact contained in any registration
statement, prospectus, offering circular or other document incident to any such
registration or qualification or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse Company, and such other directors, officers or
other persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability, or action, in each case to the extent, but only to the extent, that
such untrue statement or omission is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to Company in an instrument duly
executed by Xxxxxx specifically for use therein.
9.4.3. Each party entitled to indemnification under this
paragraph 9 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this paragraph. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
9.5. Holder shall furnish to Company such written information
relating to him or it and the distribution proposed by him or it as Company may
request in writing and as shall be required in connection with any registration
or qualification referred to in this paragraph 9.
10. NO REDEMPTION PROVISIONS. The shares of Series D Preferred Stock
are not subject in any way to voluntary or involuntary redemption by Company.
11. PROTECTIVE PROVISIONS. The unanimous consent of each holder of
Series D Preferred Stock shall be required for any action which (a) alters or
changes the rights, preferences, privileges, designations, powers,
qualifications, limitations or restrictions of the Series D Preferred Stock
adversely; (b) increases the authorized number of shares of Series D Preferred
Stock; or (c) creates any new class or series of shares having preference over
or being on a parity with the Series D Preferred Stock.
12. APPLICABLE LAW. This Certificate shall be governed by, and
construed in accordance with, the laws of the State of Utah.
13. SERIES B PREFERRED STOCK. Company has previously issued 459,411
shares of its $2.55 convertible, voting, non-cumulative 10% preferred stock,
series B, without par value (the "SERIES B PREFERRED STOCK"). Notwithstanding
any provisions of this Certificate to the contrary, the Series B Preferred Stock
shall take priority over the Series C and Series D Preferred Stock as to rank,
dividend preference and liquidation preference, as set forth in Company's
articles of incorporation, as amended.
14. SERIES C PREFERRED STOCK. Company has previously issued 584,257
shares of its $3.09 convertible, voting, non-cumulative 10% preferred stock,
series C, without par value (the "SERIES C PREFERRED STOCK"). Notwithstanding
any provisions of this Certificate to the contrary, the Series C Preferred Stock
shall take priority over the Series D Preferred Stock as to rank, dividend
preference and liquidation preference, as set forth in Company's articles of
incorporation, as amended.
DATED effective 17 August 1995.
ALPNET, INC., a Utah corporation
By: \s\ Xxxxxx X. Seal
XXXXXX X. SEAL
President
ATTEST:
\s\ X. Xxxxx Xxxxxx
X. XXXXX XXXXXX
Secretary
[THIS SPACE INTENTIONALLY LEFT BLANK]
__________________________________________________________________
ELECTION OF CONVERSION OPTION
The undersigned irrevocably elects to convert _______________ shares (all
shares shall be presumed if the foregoing blank is not completed) of the Series
D Preferred Stock represented by this Certificate into Common Stock and requests
that the certificate for such shares be issued in the name of
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_______________________________________________________________ at
______________________________________________________________ and be delivered
to: ______________________________________________ at
__________________________________________________________________ and, if the
number of shares of Series D Preferred Stock that are converted shall not be all
of the shares of Series D Preferred Stock evidenced by this Certificate, that a
new certificate for the balance of shares of the Series D Preferred Stock be
registered in the name of, and delivered to, ___________________________________
_______________________________________________________________ at
_________________________________________________________________.
DATED: ______________ 19_____ ______________________________
Signature
ASSIGNMENT
For value received, ________________________________________ does hereby
sell, assign and transfer unto ______________________
_________________________________________________________________
___________________________ shares of the Series D Preferred Stock represented
by this Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint
_________________________________________________________
as attorney to transfer said shares on the books of Company, with full power of
substitution.
DATED: _______________ 19____ _______________________________
Signature
Signature Guaranteed:
_______________________________
__________________________________________________________________
SEE NOTES ON FOLLOWING PAGE
__________________________________________________________________
NOTES:
1. SIGNATURES FOR THE ELECTION OF CONVERSION AND ASSIGNMENT ABOVE MUST BE
GUARANTEED BY A COMMERCIAL BANK, A TRUST COMPANY OR A MEMBER FIRM OF A
NATIONAL STOCK EXCHANGE.
2. ALL CAPITALIZED TERMS USED IN THE FOREGOING ELECTION OF CONVERSION OPTION
AND ASSIGNMENT SHALL HAVE THE MEANINGS FOR SUCH TERMS THAT ARE SET FORTH
IN THE SERIES D PREFERRED STOCK CERTIFICATE TO WHICH THE ELECTION AND
ASSIGNMENT PAGE IS ATTACHED.
3. THE SIGNATURE ON ANY ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION
OR MODIFICATION.
