EXHIBIT 3.6
AMENDED AND RESTATED
CONVERSION AND PAIRING AGREEMENT
THIS AMENDED AND RESTATED CONVERSION AND PAIRING AGREEMENT (the "Amended
Agreement") is dated as of June 7, 1999 by and between xxxxxx.xxx, Inc.
("Parent"), a Delaware corporation, and xxxxxx.xxx Canada, Inc. ("Subsidiary"),
an Ontario corporation.
Recitals:
Parent and Subsidiary completed a related series of transactions effective
January 1, 1999 consisting principally of: (i) the amalgamation of Jutvision
Corporation, an Ontario corporation ("Jutvision Canada") with and into
Subsidiary, pursuant to which each outstanding share of Jutvision Canada common
stock, no par value ("Jutvision Canada Common Stock"), was converted into one
Subsidiary Series B Convertible Preferred Share, no par value ("Subsidiary
Series B Preferred Stock") (the "Amalgamation "); (ii) in connection therewith,
the issuance by Parent of its Class B redeemable common stock, $.0001 par value
("Parent Class B Common Stock") to the holders of the outstanding shares of
Jutvision Canada Common Stock, on a share-for-share basis (the "Sale"); and
(iii) the pairing of the outstanding shares of Subsidiary Series B Preferred
Stock and the Parent Class B Common Stock so that they are transferable only in
units (the "Units"), each Unit consisting of one share of Subsidiary Series B
Preferred Stock and one share of Parent Class B Common Stock (the "Pairing").
The Articles of Amalgamation of Subsidiary and Certificate of Incorporation
of Parent each provide that, commencing on the effective date of the
Amalgamation and the Sale, the shares of Subsidiary Series B Preferred Stock and
the Parent Class B Common Stock are not transferable, and shall not be
transferred, on the books of Subsidiary or Parent, as the case may be, except in
combination with an equal number of shares of the other company.
Subsidiary and Parent entered into a Conversion and Pairing Agreement dated
as of January 1, 1999 (the "Agreement") for the purpose of further effectuating
the Pairing, including the establishment of the terms and conditions which will
govern the issuance and the transfer of shares of Subsidiary Series B Preferred
Stock and Parent Class B Common Stock after the effective date of the
Amalgamation and the Sale.
Subsidiary and Parent also entered into the Agreement to provide for the
obligation of Parent to issue Parent Common Stock to holders of Subsidiary
Series B Preferred Stock upon the conversion of the Subsidiary Series B
Preferred Stock into Parent Common Stock pursuant to the rights of the
Subsidiary Series B Preferred Stock set forth in Articles of Amalgamation of
Subsidiary.
Effective April 23, 1999, Parent changed its name from Jutvision
Corporation to xxxxxx.xxx, Inc. and Subsidiary changed its name from Jutvision
Canada, Inc. to xxxxxx.xxx Canada, Inc.
2
Effective June 7, 1999, Subsidiary completed a reorganization (the
"Reorganization") which created a new class of shares of Subsidiary called
Series C Convertible Preferred Shares ("Subsidiary Series C Preferred Stock")
and converted each issued and outstanding share of Subsidiary Series B Preferred
Stock into one (1) share of Subsidiary Series C Preferred Stock.
The terms of the Reorganization also provided that the outstanding shares
of Subsidiary C Preferred Stock be paired with the outstanding shares of Parent
Class B Common Stock in the same manner as the outstanding shares of Subsidiary
B Preferred Stock were paired with the outstanding shares of Parent Class B
Common Stock.
Section 6 of the Agreement provides for the amendment of the Agreement in
accordance with the terms thereof.
The Agreement is hereby amended and restated in its entirety as follows:
COVENANTS
1. Transfer of Shares. Commencing as of the date hereof (the "Effective
Time of the Pairing") and continuing until such time as the Pairing shall have
been terminated in the manner herein provided:
(a) No shares of Subsidiary Series C Preferred Stock shall be
transferable, and they shall not be transferred on the books of Subsidiary,
unless (i) a simultaneous transfer is made by the same transferor to the
same transferee, or (ii) such transferor has previously arranged with
Parent for the transfer to the transferee, of the same number of shares of
Parent Class B Common Stock, except that Parent may transfer shares of
Subsidiary Series C Preferred Stock acquired by it from Subsidiary to a
person to whom Parent simultaneously issues the same number of shares of
Parent Class B Common Stock.
(b) No shares of Parent Class B Common Stock shall be transferable,
and they shall not be transferred on the books of Parent, unless (i) a
simultaneous transfer is made by the same transferor to the same
transferee, or (ii) such transferor has previously arranged with Subsidiary
for the transfer to the transferee, of the same number of shares of
Subsidiary Series C Preferred Stock, except that Subsidiary may transfer
Parent Class B Common Stock acquired by it from Parent to a person to whom
Subsidiary simultaneously issues the same number of shares of Subsidiary
Series C Preferred Stock.
(c) Each certificate evidencing ownership of shares of Subsidiary
Series C Preferred Stock issued and not canceled prior to the Effective
Time of the Pairing shall be deemed to evidence, in addition, the same
number of Parent Class B Common Shares.
3
(d) Any registered holder of a certificate evidencing ownership of
shares of Subsidiary Series C Preferred Stock issued prior to the Effective
Time of the Pairing may, upon request and presentation of said certificate
to the Company or transfer agent for the Subsidiary Series C Preferred
Stock, as applicable, obtain in substitution therefor a certificate or
certificates registered in such holder's name evidencing the same number of
shares of Subsidiary Series C Preferred Stock and a like number of shares
of Parent Class B Common Stock.
2. Issuance of Shares. (a) Commencing at the Effective Time of the
Pairing and continuing until such time as the Pairing shall have been terminated
in the manner herein provided:
(i) Subsidiary shall not issue or agree to issue any shares of
Subsidiary Series C Preferred Stock to any person except Parent unless
effective provision has been made for the simultaneous issuance or
transfer to the same person of the same number of shares of Parent
Class B Common Stock and for the pairing of such shares of Subsidiary
and Parent and unless Subsidiary and Parent have agreed on the manner
and basis of allocating the consideration to be received upon such
issuance between Subsidiary and Parent or, if allocation of such
consideration between them is not practicable, on the payment by one
company to the other of cash or other consideration in lieu thereof.
(ii) Parent shall not issue or agree to issue any shares of
Parent Class B Common Stock to any person except Subsidiary unless
effective provision has been made for the simultaneous issuance or
transfer to the same person of the same number of shares of Subsidiary
Series C Preferred Stock and for the pairing of such shares of Parent
and Subsidiary and unless Parent and Subsidiary have agreed on the
manner and basis of allocating the consideration to be received upon
such issuance between Parent and Subsidiary or, if allocation of such
consideration between them is not practicable, on the payment by one
company to the other of cash or other consideration in lieu thereof.
(iii) Upon exercise of any stock option or warrant granted by
Jutvision Canada prior to the Amalgamation and assumed by Subsidiary
or granted by Subsidiary after the Amalgamation, Parent agrees upon
request of management of Subsidiary, that it will simultaneously issue
a number of shares of Parent Class B Common Stock to Subsidiary or to
the exercising optionee equal to the number of Subsidiary Series C
Preferred Shares issued by Subsidiary pursuant to such exercise, and
Subsidiary agrees to pay Parent par value of each Parent Class B
Common Share so issued at the date of exercise of such option,
notwithstanding the provisions of subsection (i) of this Section 2.
(b) Upon the conversion of the Subsidiary Series C Preferred Stock
into Parent Common Stock pursuant to the rights of the Subsidiary Series C
Preferred Stock
4
set forth in the Articles of Amendment of the Subsidiary, Parent shall
issue Parent Common Stock to each holder of Subsidiary Series C Preferred
Stock on a share for share basis, subject to the restrictions and mechanics
set forth in the Articles of Amendment of Subsidiary and Certificate of
Incorporation of Parent. Before any holder of Subsidiary Series C Preferred
Stock shall be entitled to convert the same into Parent Common Stock, such
holder shall surrender (or constructively surrender, as the case may be, if
the certificate or certificates for such shares are being held for such
holder by Subsidiary, or if Subsidiary has not yet issued and delivered
such certificate or certificates to the holder) the certificate or
certificates therefor, duly endorsed, together with an equal number of
shares of Parent Class B Common Stock, at the office of the Subsidiary or
of any transfer agent for the Subsidiary Series C Preferred Stock, and
shall give written notice to the Subsidiary at such office and to Parent at
its office that such holder elects to convert the same and shall state
therein the name of such holder or the name or names of the nominees of
such holder in which such holder wishes the certificate or certificates for
Parent Common Stock to be issued. The Parent shall, as soon as practicable
thereafter and upon receipt of payment from Subsidiary of the par value for
the shares of Parent Common Stock, issue and deliver at such office to such
holder of Subsidiary Series C Preferred Stock, or to such holder's nominee
or nominees, a certificate or certificates for the number of shares of
Parent Common Stock to which such holder shall be entitled as aforesaid,
together with cash in lieu of any fraction of a share. 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 Subsidiary Series C
Preferred Stock to be converted, and the person or persons entitled to
receive the Parent Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Parent Common
Stock on such date. Parent shall have no obligation to issue shares of
Parent Common Stock to the holder of Subsidiary Series C Preferred Stock
until such holder has surrendered its certificates representing the number
of Subsidiary Series C Preferred Stock converted and an equal number of
shares of Parent Class B Common Stock or such holder provides Subsidiary
and Parent with lost certificate affidavit(s), in a form acceptable to
both.
3. Stock Certificates, Transfer Agents and Registrars. Commencing at the
Effective Time of Pairing and continuing until such time as the Pairing shall
have been terminated in the manner herein provided:
(a) Each certificate which is issued evidencing shares of Subsidiary
Series C Preferred Stock shall be printed with a certificate evidencing the
same number of shares of Parent Class B Common Stock, and shall bear a
conspicuous legend referring to the restrictions on the transfer of the
shares evidenced thereby contained in the Articles of Amendment of
Subsidiary, and shall be in a form which satisfies the requirements of the
laws of Ontario, Canada and which has been approved by the board of
directors of Subsidiary.
5
(b) Each certificate which is issued evidencing shares of Parent
Class B Common Stock shall be printed with a certificate evidencing the
same number of shares of Subsidiary Series C Preferred Stock, and shall
bear a conspicuous legend referring to the restrictions on the transfer of
the shares evidenced thereby contained in the Certificate of Incorporation
of Parent, and shall be in a form which satisfies the requirements of the
laws of Delaware and which has been approved by the board of directors of
Parent.
(c) Subsidiary and Parent shall appoint the same transfer agents and
registrars for the shares of Subsidiary Series C Preferred Stock and the
Parent Class B Common Stock, respectively.
4. Stock Dividends, Reclassifications, etc. Commencing at the Effective
Time of the Pairing and continuing until such time as the Pairing shall have
been terminated in the manner herein provided:
(a) Subsidiary shall not declare or pay any stock dividend consisting
in whole or in part of Subsidiary Series C Preferred Stock, issue any
rights or warrants to purchase any shares of Subsidiary Series C Preferred
Stock, or subdivide, combine or otherwise reclassify the shares of
Subsidiary Series C Preferred Stock, unless Parent simultaneously takes the
same or equivalent action with respect to the Parent Class B Common Stock,
to the end that the outstanding shares of Subsidiary Series C Preferred
Stock and Parent Class B Common Stock will at all times be effectively
"paired", on a one-for-one basis as contemplated herein.
(b) Parent shall not declare or pay any stock dividend consisting in
whole or in part of Parent Class B Common Stock, issue any rights or
warrants to purchase any Parent Class B Common Stock, or subdivide, combine
or otherwise reclassify the Parent Class B Common Stock, unless Subsidiary
simultaneously takes the same or equivalent action with respect to the
Subsidiary Series C Preferred Stock, to the end that the outstanding Parent
Class B Common Stock and the outstanding shares of Subsidiary Series C
Preferred Stock will at all times be effectively "paired" on a one-for-one
basis as contemplated herein.
5. Termination. (a) This Agreement and the Pairing may be terminated by
action of the Board of Directors of either Subsidiary or of Parent upon 30 days'
written notice to the other party hereto that such termination has been approved
by the affirmative vote of the holders of two-thirds of the outstanding shares
of Subsidiary Series C Preferred Stock represented and voting at a duly held
meeting at which a quorum is present (if terminated by Subsidiary) or of the
holders of two-thirds of the outstanding shares of Parent Class B Common Stock
represented and voting at a duly held meeting at which a quorum is present (if
terminated by Parent).
(b) This Agreement and Pairing shall terminate upon the redemption of
all shares of Parent Class B Common Stock.
6
6. Amendment. This Agreement may be amended by action of the Board of
Directors of both Subsidiary and Parent, provided that any such action has been
approved by the affirmative vote of the holders of two-thirds of the outstanding
shares of Subsidiary Series C Preferred Stock, voting as a class, and the
holders of two-thirds of the outstanding Parent Class B Common Stock, voting as
a class represented and voting at a duly held meeting at which a quorum is
present if such amendment shall permit a separation of the paired securities so
as to allow the separate issuance and transfer thereof other than as provided
herein.
In Witness Whereof the parties hereto have set their hands and seals to
this Agreement as of the date first written above.
Xxxxxx.xxx, Inc.
--------------------------------
By: Xxxxxxx X. XxXxxxx
Its: Chairman
Xxxxxx.xxx Canada, Inc.
--------------------------------
By: Xxxxxxx X. XxXxxxx
Its: Chairman
