EX-99 4 ex3sc13da1-ztel.txt EXHIBIT 3 EXHIBIT 3 EXHIBIT [B] Z-TEL TECHNOLOGIES, INC. CERTIFICATE OF DESIGNATION OF 12% JUNIOR REDEEMABLE CONVERTIBLE PREFERRED STOCK, SERIES G, SETTING FORTH THE POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OF SUCH SERIES OF PREFERRED STOCK Pursuant to Section 151 of the Delaware General Corporation Law, Z-Tel Technologies, Inc., a Delaware corporation (the "CORPORATION"), DOES HEREBY CERTIFY: That pursuant to the authority conferred upon the Board of Directors of the Corporation by the Certificate of Incorporation of the Corporation (the "CHARTER"), the Board of Directors of the Corporation on June 29, 2001 duly adopted the following resolution creating a series of Preferred Stock designated as 12% Junior Redeemable Convertible Preferred Stock, Series G, and such resolution has not been modified and is in full force and effect on the date hereof: RESOLVED that, pursuant to the authority vested in the Board of Directors of the Corporation in accordance with the provisions of the Charter, a series of the class of authorized Preferred Stock, par value $0.01 per share, of the Corporation is hereby created and that the designation and number of shares thereof and the voting powers, preferences and relative, participating, optional and other special rights of the shares of such series, and the qualifications, limitations and restrictions thereof are as follows: Section 1. DESIGNATION AND NUMBER; RANKING (a) The shares of such series shall be designated as 12% Junior Redeemable Convertible Preferred Stock, Series G (the "SERIES G PREFERRED"). The number of authorized shares of the Series G Preferred shall be 175, which number may be decreased (but not increased) by the Board of Directors without a vote of stockholders; PROVIDED, HOWEVER, that such number may not be decreased below the number of then outstanding shares of Series G Preferred or shares of Series G Preferred to be issued pursuant to the Investment Agreement. (b) The Series G Preferred shall, with respect to dividend rights and rights on liquidation, dissolution or winding up, rank on a parity with the Parity Stock and prior to all classes and series of Junior Stock of the Corporation now or hereafter authorized. (c) Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section 11. 2 Section 2. DIVIDENDS AND DISTRIBUTIONS. (a) SERIES G DIVIDENDS. The holders of shares of Series G Preferred, in preference to the holders of shares of Common Stock and of any shares of other Junior Stock of the Corporation, shall be entitled to receive, when, as and if declared by the Board of Directors, out of the assets of the Corporation legally available therefor, cumulative cash dividends at an annual rate per share of Series G Preferred equal to 12.00% of the Liquidation Preference with respect to such share per annum ("SERIES G DIVIDEND RATE"), calculated on the basis of a 360-day year consisting of twelve 30-day months, accruing and payable in equal quarterly payments, in immediately available funds, on the last day of March, June, September and December or, if any such day is not a Business Day, the next succeeding Business Day, in each year (each such date being referred to herein as a "QUARTERLY DIVIDEND PAYMENT DATE"), commencing on the first quarterly dividend date to occur after the issue date of such shares; PROVIDED that the dividend payable on the first Quarterly Dividend Payment Date to occur after the Issue Date of each share of Series G Preferred shall be computed based on the number of days prior to the date that such share has been issued and outstanding; and PROVIDED FURTHER that, notwithstanding the foregoing (i) no such dividends shall be paid or payable in cash with respect to any share of Series G Preferred until the earliest of the date (x) such share is redeemed in accordance with the terms of the Series G Preferred and (y) payment is made to the Series G Preferred pursuant to Section 7 and (ii) upon conversion of any share of Series G Preferred, accrued dividends shall be treated as contemplated by Section 8 or Section 10. (b) DIVIDEND ARREARAGE. If as of any Quarterly Dividend Payment Date there is a Dividend Arrearage (as hereinafter defined), an additional dividend (the "ADDITIONAL DIVIDEND") shall accrue on each share of the Series G Preferred for the period from such Quarterly Dividend Payment Date through the earlier of (x) the date on which such Dividend Arrearage is paid or converted pursuant to the terms hereof in full and (y) the next succeeding Quarterly Dividend Payment Date, in an amount equal to the product of (i) the Series G Dividend Rate and (ii) the amount of such Dividend Arrearage as of such Quarterly Dividend Payment Date. For purposes of this Section 2(b), "Dividend Arrearage" shall mean, with respect to each share of Series G Preferred, as of any Quarterly Dividend Payment Date, the excess, if any of (i) the sum of all dividends theretofore accrued on such share in accordance with Section 2(a) (including those accrued as of and including such Quarterly Dividend Payment Date) plus all Additional Dividends, if any, theretofore accrued on such share in accordance with this Section 2(b) (including those accrued as of and including such Quarterly Dividend Payment Date), over (ii) all dividends actually paid or converted (but only to the extent so paid or converted) pursuant to the terms hereof with respect to such share on or before such Quarterly Dividend Payment Date. (c) ACCRUAL OF DIVIDENDS. Dividends payable pursuant to Section 2(a) shall begin to accrue and be cumulative from the Issue Date, and shall accrue on a daily basis, in each case whether or not declared. Dividends paid on the shares of Series G Preferred in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all 3 such shares of Series G Preferred at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series G Preferred entitled to receive payment of a dividend declared thereon, which record date shall be no more than 60 days or less than 10 days prior to the date fixed for the payment thereof. Accumulated but unpaid dividends for any past quarterly dividend periods may be declared and paid at any time, without reference to any regular Quarterly Dividend Payment Date, to holders of record on such date, not more than 60 nor less than 10 days preceding the payment date thereof, as may be fixed by the Board of Directors. (d) OTHER DIVIDENDS. In addition to the dividends or distributions on the Series G Preferred described in Section 2(a), in the event that the Corporation shall declare a dividend or make any other distribution (including, without limitation, in cash, in capital stock (which shall include, without limitation, any options, warrants or other rights to acquire capital stock) of the Corporation, whether or not pursuant to a shareholder rights plan, "poison pill" or similar arrangement, or other property or assets)) to holders of Common Stock, then the Board of Directors shall declare and the holder of each share of Series G Preferred shall be entitled to receive a dividend or distribution in an amount equal to the amount of such dividend or distribution received by a holder of the number of shares of Common Stock for which such share of Series G Preferred is convertible on the record date for such dividend or distribution (without regard to the Conversion Limit). Any such amount shall be paid to the holders of shares of Series G Preferred at the same time such dividend or distribution is made to holders of Common Stock. Section 3. VOTING RIGHTS. Except for any voting rights provided by law, the holders of shares of Series G Preferred shall not be entitled to vote. Section 4. CERTAIN RESTRICTIONS. (a) NO DIVIDENDS. Whenever quarterly dividends payable on shares of Series G Preferred as provided in Section 2 are not paid in full in cash (whether or not such payment is permitted by the terms hereof), at such time and thereafter until all unpaid dividends payable, whether or not declared, on the outstanding shares of Series G Preferred shall have been paid in full in cash or declared and set apart in cash for payment, or whenever the Corporation shall not have converted or exchanged shares of Series G Preferred at a time required by Section 8 or 10, at such time and thereafter until all conversion and exchange obligations provided in Section 8 or 10 that have come due shall have been satisfied, the Corporation shall not: (A) declare or pay dividends, or make any other distributions, on any shares of Junior Stock; or (B) declare or pay dividends, or make any other distributions, on any shares of Parity Stock, except (i) dividends or distributions paid ratably on the Series G Preferred and all Parity Stock on which dividends are payable or in arrears, in proportion to the total amounts to which the holders of all shares of the Series G Preferred and such Parity Stock are then entitled. 4 (b) NO REDEMPTION. Whenever dividends payable on shares of Series G Preferred as provided in Section 2(a) are not paid in full in cash (whether or not such payment is permitted by the terms hereof), at such time and thereafter until all unpaid dividends payable, whether or not declared, on the outstanding shares of Series G Preferred shall have been paid in full in cash or declared and set apart in cash for payment, or whenever the Corporation shall not have converted or exchanged shares of Series G Preferred at a time required by Section 8 or 10, at such time and thereafter until all conversion and exchange obligations provided in Section 8 or 10 that have come due shall have been satisfied, the Corporation shall not redeem, purchase or otherwise acquire for consideration any shares of Junior Stock or Parity Stock; PROVIDED, HOWEVER, that (A) the Corporation may accept shares of any Parity Stock or Junior Stock for conversion into Junior Stock and (B) the Corporation may at any time redeem, purchase or otherwise acquire shares of any Parity Stock pursuant to any mandatory redemption, put, sinking fund or other similar obligation contained in such Parity Stock, pro rata with the Series G Preferred in proportion to the total amount then required to be applied by the Corporation to redeem, repurchase, convert, exchange or otherwise acquire shares of Series G Preferred and shares of such Parity Stock. (c) SUBSIDIARY ACTION. The Corporation shall not permit any Subsidiary of the Corporation, or cause any other Person, to purchase or otherwise acquire for consideration any shares of capital stock of the Corporation unless the Corporation could, pursuant to Section 4(b), purchase such shares at such time and in such manner; PROVIDED that this provision shall not prohibit sales of shares of capital stock by the Corporation to any third party. (d) PROHIBITED ACTIONS. The Corporation shall not (i) declare or pay dividends, or make any other distributions, on or with respect to any shares of Series G Preferred, (ii) redeem, purchase or otherwise acquire for consideration any shares of Series G Preferred, or (iii) make any distribution in respect of liquidation to the holders of Series G Preferred, in each case if and to the extent prohibited by the terms of any Senior Stock. Section 5. REDEMPTION. (a) OPTIONAL REDEMPTION. Except as otherwise set forth in this Section 5, the Corporation shall not have any right to redeem any shares of Series G Preferred prior to the first anniversary of the Drawdown Date. On and after the first anniversary of the Drawdown Date, the Corporation shall have the right, at its sole option and election, to redeem the shares of Series G Preferred, in whole but not in part, on not less than 10 days notice of the date of redemption (any such date an "OPTIONAL REDEMPTION DATE") for cash at a price per share (the "OPTIONAL REDEMPTION PRICE") equal to the sum of the (i) Liquidation Preference per share and (ii) any accrued and unpaid dividends thereon (including Additional Dividends), whether or not declared or payable, to the applicable Optional Redemption Date, in immediately available funds; PROVIDED that (i) the Optional Redemption Price for any shares of Series G Preferred redeemed under this Section 5(a) during a Change of Control Window shall be the Control 5 Redemption Price and (ii) the Corporation may not exercise its right under this Section 5(a) outside of a Change of Control Window in anticipation of a Change of Control. (b) MANDATORY REDEMPTION. To the extent permitted by law, the Corporation shall redeem, on: (i) December 31, 2001, if the Stockholder Approval Certification Date has not then occurred, the number of shares of Series G Preferred presented for redemption by the holders thereof for cash, at a price per share, in immediately available funds, equal to the sum of (x) the Liquidation Preference per share plus (y) any accrued and unpaid dividends thereon (including Additional Dividends) whether or not declared or payable; or (ii) the fifth anniversary of the Drawdown Date, all remaining shares of Series G Preferred then outstanding, for cash at a price per share equal to the Liquidation Preference, plus an amount equal to all accrued but unpaid dividends thereon (including Additional Dividends), whether or not declared or payable to the Mandatory Redemption Date, in immediately available funds. (Each of the dates referred to in Sections 5(b)(i) and (ii) above, a "Mandatory Redemption Date" and each of the redemption amounts referred to in Sections 5(b)(i) and (ii) above, a "Mandatory Redemption Price"). Prior to authorizing or making such redemption with respect to the Series G Preferred, the Corporation, by resolution of the Board of Directors shall, to the extent of funds legally available therefor, declare a dividend on the Series G Preferred payable on the Mandatory Redemption Date in an amount equal to any accrued and unpaid dividends on the Series G Preferred as of such date (including Additional Dividends) and, if the Corporation does not have sufficient legally available funds to declare and pay all dividends accrued at the time of such redemption, any remaining accrued and unpaid dividends (including Additional Dividends) shall be added to the Mandatory Redemption Price. After paying any accrued and unpaid dividends pursuant to the foregoing sentence, if the funds of the Corporation legally available for redemption of shares of the Series G Preferred then required to be redeemed are insufficient to redeem the total number of such shares then outstanding, those funds which are legally available shall be used to redeem the maximum possible number of shares of the Series G Preferred, which shares to be redeemed shall be allocated pro rata among the holders of the Series G Preferred based on the number of shares of Series G Preferred held by such holders. At any time and from time to time thereafter, when additional funds of the Corporation are legally available to discharge its obligation to redeem all of the outstanding shares of Series G Preferred required to be redeemed pursuant to this Section (the "MANDATORY REDEMPTION OBLIGATION"), such funds shall be immediately used to discharge such Mandatory Redemption Obligation until the balance of such shares have been redeemed. If and so long as the Mandatory Redemption Obligation shall not be fully discharged, dividends on any remaining outstanding shares of Series G Preferred shall continue to accrue and be added to the dividend payable pursuant to the second preceding sentence. 6 (c) CHANGE OF CONTROL. (i) If, on or prior to the fifth anniversary of the Effective Date a Change of Control occurs, a holder of Series G Preferred may require the Corporation to redeem the holder's shares of Series G Preferred, in whole but not in part (the "HOLDER'S PUT RIGHT") for cash at a price per share (the "CONTROL REDEMPTION PRICE") equal to 125% of the sum of (A) the Liquidation Preference, PLUS (B) an amount per share equal to all accrued and unpaid dividends thereon (including Additional Dividends), whether or not declared or payable, in immediately available funds. (The Control Redemption Price, Optional Redemption Price and Mandatory Redemption Price are sometimes referred to as the "APPLICABLE REDEMPTION PRICE".) The Control Redemption Date, Optional Redemption Date, and Mandatory Redemption Date are sometimes referred to as the "APPLICABLE REDEMPTION DATE".) (ii) Section 5(c)(i) notwithstanding, in the event of a Change of Control prior to the Stockholder Approval Certification Date, the Control Redemption Price shall be the greater of (A) the Control Redemption Price specified in Section 5(c)(i), and (B) an amount per share for each outstanding share of Series G Preferred equal to (x) the number of shares of Common Stock into which such outstanding share of Series G Preferred could have been converted immediately after such Change of Control (without regard to the Conversion Limit), multiplied by (y) the aggregate amount (including the fair market value of all non-cash consideration, determined as of the date of the Change of Control) received by the holders of Common Stock for and in consideration of each share of Common Stock in connection with the Change of Control . (d) NOTICE. (i) The Corporation will provide notice to holders of record of the Series G Preferred (x) of any redemption pursuant to Section 5(a) or 5(b) not less than 10 (in the case of Section 5(a)) and 30 (in the case of Section 5(b)) nor more than 60 days prior to the date fixed for such redemption (A "REDEMPTION NOTICE") and (y) of any Change of Control within 30 days of such Change of Control, provided that in the case of a Change of Control requiring a shareholder vote, the Corporation shall provide such notice at least 30 days prior to the date fixed for the meeting of holders of Series G Preferred called to vote on that proposed transaction (a "CHANGE OF CONTROL NOTICE"). Any Notice provided pursuant to this Section 8(d) shall be provided by first-class mail postage prepaid, to each holder of record of the Series G Preferred, at such holder's address as it appears on the stock transfer books of the Corporation. (ii) Each Redemption Notice shall state, as appropriate: (x) the Applicable Redemption Date; (y) the number of shares of Series G Preferred to be redeemed and, if fewer than all the shares held by any holder are to be redeemed, the number of such shares to be redeemed from such holder; and (z) the Optional Redemption Price or Mandatory Redemption Price. 7 (iii) Each Change of Control Notice shall state that: (w) the Corporation proposes to effect a Change of Control, (x) if a Change of Control occurs, each holder has the right to require the Corporation to redeem its shares of Series G Preferred and any shares of Series G Preferred not tendered for redemption will remain outstanding and continue to accrue dividends (including Additional Dividends); (y) the Control Redemption Price; and (z) the date on which the Corporation must redeem the shares upon exercise of the Holder's Put Right (the "CONTROL REDEMPTION DATE"), which shall be not later than 30 days from the date the Change of Control Notice is mailed. (iv) In addition, each Redemption Notice and Change of Control Notice shall state, as appropriate: (v) the place or places where certificates for such shares are to be surrendered for redemption; (w) the amount of full cumulative dividends per share of Series G Preferred to be redeemed (including Additional Dividends) up to but excluding the Applicable Redemption Date, and that dividends on shares of Series G Preferred to be redeemed will cease to accrue on such Redemption Date unless the Corporation shall default in payment of the Applicable Redemption Price; (x) the name and location of any bank or trust company with which the Corporation will deposit redemption funds pursuant to subsection (f) below; (y) the then-effective Conversion Price; and (z) that the right of holders to convert shares of Series G Preferred to be redeemed will terminate at the close of business on the Business Day next preceding the date fixed for redemption (unless the Corporation shall default in the payment of the Applicable Redemption Price). Any Notice that is mailed pursuant to clause (i) shall be conclusively presumed to have been duly given, whether or not the holder of shares of Series G Preferred receives such notice, and failure to give such notice by mail, or any defect in such notice, to the holders of any shares designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series G Preferred. (e) MECHANICS OF REDEMPTION. Upon surrender in accordance with any notice referred to in subsection (d) above of the certificate for any shares redeemed pursuant to Section 8(a), (b) or (c) (duly endorsed or accompanied by appropriate instruments of transfer if so required by the Corporation), the holders of record of such shares shall be entitled to receive the Applicable Redemption Price, without interest, up to but excluding such Redemption Date out of funds legally available therefor. If fewer than all the shares represented by any such certificate are redeemed, a new certificate representing the unredeemed shares shall be issued without cost to the holder thereof. (f) REDEMPTION FUNDS. On the date of any redemption being made pursuant to this Section, the Corporation shall, and at any time after mailing the Redemption Notice or Change of Control Notice and before the Applicable Redemption Date the Corporation may, deposit for the benefit of the holders of shares of Series G Preferred to be redeemed the funds necessary for such redemption with a bank or trust company having a capital and surplus of at least $1 billion, with instructions to such bank or trust company to pay the full redemption as provided herein to the holders of shares of Series G Preferred upon surrender of certificates for such shares; PROVIDED, HOWEVER, that the making of such deposit shall not release the Corporation from any of its obligations 8 hereunder. Any moneys so deposited by the Corporation and unclaimed at the end of two years from the Applicable Redemption Date shall revert to the general funds of the Corporation and, upon demand, such bank or trust company shall pay over to the Corporation such unclaimed amounts and thereupon such bank or trust company shall be relieved of all responsibility in respect thereof and any holder of shares of Series G Preferred so redeemed shall look only to the Corporation for the payment of the full redemption amounts, as provided herein. (g) RIGHTS AFTER REDEMPTION. Notice of redemption having been given as provided in Section 8(d), upon the deposit pursuant to subsection (f) of the full redemption amounts as provided herein in respect of all shares of Series G Preferred then to be redeemed, notwithstanding that any certificates for such shares shall not have been surrendered in accordance with subsection (e), from and after the Applicable Redemption Date: (i) the shares represented thereby shall no longer be deemed outstanding, (ii) the right to receive dividends thereon shall cease to accrue, and (iii) all rights of the holders of such shares of Series G Preferred shall cease and terminate, excepting only the right to receive the full redemption amounts as provided herein without interest thereon. If the funds deposited are not sufficient for redemption of the shares of the Series G Preferred that were to be redeemed, then no certificates evidencing such shares shall be deemed surrendered and such shares shall remain outstanding and the rights of holders of shares of Series G Preferred shall continue to be those of holders of shares of the Series G Preferred. Section 6. REACQUIRED SHARES. Any shares of Series G Preferred converted, exchanged, redeemed, purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares of Series G Preferred shall upon their cancellation become authorized but unissued shares of preferred stock, par value $.01 per share, of the Corporation and, upon the filing of an appropriate Certificate of Designation with the Secretary of State of the State of Delaware, may be reissued as part of another series of preferred stock, par value $.01 per share, of the Corporation subject to the conditions or restrictions on issuance set forth therein, but in any event may not be reissued as shares of Series G Preferred unless all shares of the Series G Preferred issued on each of the Issue Dates shall have already been redeemed, converted or exchanged. Section 7. LIQUIDATION, DISSOLUTION OR WINDING UP. (a) EFFECT OF LIQUIDATION. If the Corporation shall commence a voluntary case under the United States bankruptcy laws or any applicable bankruptcy, insolvency or similar law of any other country, or consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or make an assignment for the benefit of its creditors, or admit in writing its inability to pay its debts generally as they become due (any such event, a "VOLUNTARY LIQUIDATION EVENT"), or if a decree or order for 9 relief in respect of the Corporation shall be entered by a court having jurisdiction in the premises in an involuntary case under the United States bankruptcy laws or any applicable bankruptcy, insolvency or similar law of any other country, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and on account of any such event the Corporation shall liquidate, dissolve or wind up, or if the Corporation shall otherwise liquidate, dissolve or wind up, no distribution shall be made: (i) to the holders of shares of Junior Stock unless, prior thereto, the holders of shares of Series G Preferred, subject to Section 8, shall have received the greater of (A) (1) if a Voluntary Liquidation Event shall have occurred, the Optional Redemption Price with respect to each share (or if such event is a Change of Control, the amount payable under Section 5(c) with respect to such share) and (2) if a Voluntary Liquidation Event shall not have occurred, the Liquidation Preference, plus all accrued and unpaid dividends (including Additional Dividends), whether or not declared or currently payable, to the date of distribution, with respect to each share, and (B) the amount per share (subject to adjustment to reflect stock splits, stock dividends, stock combinations, recapitalizations and like occurrences) for each outstanding share of Series G Preferred as if the holders had converted such shares into shares of Common Stock (without regard to the Conversion Limit) immediately prior to the liquidation, dissolution or winding up, or (ii) to the holders of shares of Parity Stock, except distributions made ratably on the Series G Preferred and all other Parity Stock in proportion to the total amounts to which the holders of all shares of the Series G Preferred and other Parity Stock are entitled upon such liquidation, dissolution or winding up; (b) VOLUNTARY LIQUIDATION. For purposes of this Section 7, the holders of a majority of the outstanding shares of the Series G Preferred may elect to have treated as a Voluntary Liquidation Event the consolidation or merger of the Corporation with or into any other corporation or the sale or other transfer in a single transaction or a series of related transactions of all or substantially all of the assets of the Corporation, or any other reorganization or business combination of the Corporation or a Change of Control. Section 8. VOLUNTARY CONVERSION. (a) CONVERSION RIGHT. Any holder of Series G Preferred shall have the right, at its option, at any time and from time to time, to convert, subject to the terms and provisions of this Section 8, any or all of such holder's shares of Series G Preferred into such number of fully paid and non-assessable shares of Common Stock as is equal, subject to Section 8(f), to the product of the number of shares of Series G Preferred being so converted multiplied by the quotient of (i) the sum of the Liquidation Preference and (x) in the event of a conversion during a Change of Control Window, an amount equal to the Additional Amount, or (y) in the event of a conversion other than during a Change of Control Window, all dividends accrued and unpaid (including Additional Dividends) on the Series G Preferred so converted to the date of conversion, DIVIDED BY (ii) the 10 Conversion Price then in effect, except that with respect to any shares which shall be called for exchange or redemption, such right shall terminate at the close of business on the date of exchange or redemption for such shares, unless in any such case the Corporation shall default in performance or payment due upon exchange or redemption thereof. The Conversion Price shall be calculated in accordance with Section 8(k) and shall be subject to adjustment as set forth in Section 8(c). Such conversion right shall be exercised by the surrender of the shares to be converted to the Corporation at any time during usual business hours at its principal place of business to be maintained by it, accompanied by written notice that the holder elects to convert such Shares and, subject to Section 8(j), specifying the name or names (with address) in which a certificate or certificates for shares of Common Stock are to be issued and (if so required by the Corporation) by a written instrument or instruments of transfer in form reasonably satisfactory to the Corporation duly executed by the holder or its duly authorized legal representative and transfer tax stamps or funds therefor, if required pursuant to Section 8(j). All shares of Series G Preferred surrendered for conversion shall be delivered to the Corporation for cancellation and canceled by it and no shares of Series G Preferred shall be issued in lieu thereof. (b) MECHANICS OF CONVERSION. As promptly as practicable after the surrender, as herein provided, of any shares of Series G Preferred for conversion pursuant to Section 8(a), the Corporation shall deliver to or upon the written order of the holder of such shares so surrendered a certificate or certificates representing the number of fully paid and non-assessable shares of Common Stock into which such shares of Series G Preferred have been converted in accordance with the provisions of this Section 8. Subject to the following provisions of this paragraph and of Section 8(c), such conversion shall be deemed to have been made immediately prior to the close of business on the date that such shares of Series G Preferred shall have been surrendered in satisfactory form for conversion, and the Person or Persons entitled to receive the Common Stock deliverable upon conversion of such shares of Series G Preferred shall be treated for all purposes as having become the record holder or holders of such Common Stock at such time, and such conversion shall be at the Conversion Price in effect at such time; PROVIDED, HOWEVER, that no surrender shall be effective to constitute the Person or Persons entitled to receive the Common Stock deliverable upon such conversion as the record holder or holders of such Common Stock while the share transfer books of the Corporation shall be closed (but not for any period in excess of five days), but such surrender shall be effective to constitute the Person or Persons entitled to receive such Common Stock as the record holder or holders thereof for all purposes immediately prior to the close of business on the next succeeding day on which such share transfer books are open, and such conversion shall be deemed to have been made at, and shall be made at the Conversion Price in effect at, such time on such next succeeding day. (c) ADJUSTMENT OF CONVERSION PRICE. The Conversion Price shall be subject to adjustment as follows: (i) In case the Corporation shall at any time or from time to time after the Effective Date (A) pay a dividend or make a distribution (other than a dividend or distribution paid or made to holders of shares of Series G Preferred in the 11 manner provided in Section 2(d)) on the outstanding shares of Common Stock in capital stock (which, for purposes of this Section 8(c) shall include, without limitation, any options, warrants or other rights to acquire capital stock) of the Corporation, (B) subdivide the outstanding shares of Common Stock into a larger number of shares, (C) combine the outstanding shares of Common Stock into a smaller number of shares, (D) issue any shares of its capital stock in a reclassification of the Common Stock or (E) pay a dividend or make a distribution (other than a dividend or distribution paid or made to holders of shares of Series G Preferred in the manner provided in Section 2(d)) on the outstanding shares of Common Stock in securities of the Corporation pursuant to a shareholder rights plan, "poison pill" or similar arrangement, then, and in each such case, the Conversion Price in effect immediately prior to such event shall be adjusted (and any other appropriate actions shall be taken by the Corporation) so that the holder of any share of Series G Preferred thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other securities of the Corporation that such holder would have owned or would have been entitled to receive upon or by reason of any of the events described above, had such share of Series G Preferred been converted immediately prior to the occurrence of such event. An adjustment made pursuant to this Section 8(c)(i) shall become effective retroactively (A) in the case of any such dividend or distribution, to a date immediately following the close of business on the record date for the determination of holders of Common Stock entitled to receive such dividend or distribution or (B) in the case of any such subdivision, combination or reclassification, to the close of business on the day upon which such corporate action becomes effective. (ii) In case the Corporation shall at any time or from time to time after the Effective Date issue shares of Common Stock (or securities convertible into or exchangeable for Common Stock, or any options, warrants or other rights to acquire shares of Common Stock for a consideration per share (the "NEW ISSUE PRICE") less than either the Conversion Price or the Current Market Price per share of Common Stock, in each case, as in effect at the record date or issuance date referred to in the following sentence (the "DATE") (treating the New Issue Price of any security convertible or exchangeable or exercisable into Common Stock as equal to (A) the sum of the price for such security convertible, exchangeable or exercisable into Common Stock plus any additional consideration payable (without regard to any anti-dilution adjustments) upon the conversion, exchange or exercise of such security into Common Stock divided by (B) the number of shares of Common Stock initially underlying such convertible, exchangeable or exercisable security), then, and in each such case, the Conversion Price then in effect shall be reduced to an amount equal to the New Issue Price; PROVIDED that in no event shall such adjustment increase the Conversion Price then in effect. Such adjustment shall be made whenever such shares, securities, options, warrants or other rights are issued, and shall, in each case, become effective, in each case, retroactively to a date immediately following the close of business (1) in the case of issuance to stockholders of the Corporation, as such, on the record date for the 12 determination of stockholders entitled to receive such shares, securities, options, warrants or other rights and (2) in all other cases, on the date ("ISSUANCE DATE") of such issuance; PROVIDED, that: (A) the determination as to whether an adjustment is required to be made pursuant to this Section 8(d)(ii) shall be made upon the issuance of such shares or such convertible or exchangeable securities, options, warrants or other rights; (B) if any convertible or exchangeable securities, options, warrants or other rights (or any portions thereof) which shall have given rise to an adjustment pursuant to this Section 8(d)(ii) shall have expired or terminated without the exercise thereof and/or if by reason of the terms of such convertible or exchangeable securities, options, warrants or other rights there shall have been an increase or increases, with the passage of time or otherwise, in the price payable upon the exercise or conversion thereof, then the Conversion Price hereunder shall be readjusted (but to no greater extent than originally adjusted) on the basis of (1) eliminating from the computation any additional shares of Common Stock corresponding to such convertible or exchangeable securities, options, warrants or other rights as shall have expired or terminated, (2) treating the additional shares of Common Stock, if any, actually issued or issuable pursuant to the previous exercise of such convertible or exchangeable securities, options, warrants or other rights as having been issued for the consideration actually received and receivable therefor and (3) treating any of such convertible or exchangeable securities, options, warrants or other rights which remain outstanding as being subject to exercise or conversion on the basis of such exercise or conversion price as shall be in effect at this time; and (C) no adjustment in the Conversion Price shall be made pursuant to this Section 8(d)(ii) as a result of any issuance of securities by the Corporation in respect of which an adjustment to the Conversion Price is made pursuant to Section 8(c)(i). (iii) In case the Corporation shall at any time or from time to time after the Effective Date distribute to all holders of shares of its Common Stock (including any such distribution made in connection with a consolidation or merger in which the Corporation is the resulting or surviving corporation and the Common Stock is not changed or exchanged) cash, evidences of indebtedness of the Corporation or another issuer, securities of the Corporation or another issuer or other assets (excluding (A) dividends or distributions paid or made to holders of shares of Series G Preferred in the manner provided in Section 2(d), and (B) dividends payable in shares of Common Stock for which adjustment is made under Section 8(c)(i)) or rights or warrants to subscribe for or purchase securities of the Corporation (excluding those referred to in Section 8(c)(ii) or those in respect of which an adjustment in the Conversion Price is made pursuant to Section 8(c)(i) or (ii)), then, and in each such case, the Conversion Price then in effect shall be adjusted by dividing the Conversion Price in effect immediately prior to the date of such distribution by a fraction (x) the numerator of which shall be the Market Price of the Common Stock on the record date referred to below and 13 (y) the denominator of which shall be such Market Price of the Common Stock less the then Fair Market Value (as determined by the Board of Directors of the Corporation) of the portion of the cash, evidences of indebtedness, securities or other assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock (but such denominator not to be less than one). Such adjustment shall be made whenever any such distribution is made and shall become effective retroactively to a date immediately following the close of business on the record date for the determination of stockholders entitled to receive such distribution. (iv) In the case the Corporation, at any time or from time to time after the Effective Date, shall take any action affecting its Common Stock similar to or having an effect similar to any of the actions described in any of Section 8(c)(i) through Section 8(c)(iii), inclusive, or Section 8(g) (but not including any action described in any such Section) and the Board of Directors of the Corporation in good faith determines that it would be equitable in the circumstances to adjust the Conversion Price as a result of such action, then, and in each such case, the Conversion Price shall be adjusted in such manner and at such time as the Board of Directors of the Corporation in good faith determines would be equitable in the circumstances (such determination to be evidenced in a resolution, a certified copy of which shall be mailed to the holders of the Series G Preferred). (v) Notwithstanding anything herein to the contrary, no adjustment under this Section 8(c) need be made to the Conversion Price unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price then in effect. Any lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment, which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% of such Conversion Price. Any adjustment to the Conversion Price carried forward and not theretofore made shall be made immediately prior to the conversion of any shares of Series G Preferred pursuant hereto. (vi) Notwithstanding anything herein to the contrary, no adjustment under this Section 8(c)(ii) or (iii) shall be made upon (A) the grant of options to employees or directors of the Corporation permitted under benefit plans in existence on the Effective Date pursuant to the terms of such plans in effect on the Effective Date, (B) the issuance of any Common Stock upon conversion of the Series G Preferred in accordance with the terms of its Certificate of Designation, (C) the issuance of any Common Stock upon conversion of the Series E Preferred in accordance with the terms of its Certificate of Designation in effect on the Issue Date (D) the issuance of Common Stock upon the conversion of Series D Preferred in accordance with the terms of its Certificate of Designations, (E) the issuance of any Common Stock upon conversion or exercise of any convertible securities outstanding on the Issue Date in accordance with terms of such security in effect on the Effective Date, (F) the issuance of any shares of Series G Preferred pursuant to the Investment Agreement, and (G) the grant to Breckenridge Securities Corp., pursuant to the Investment Agreement or in connection with the prior offer and sale of shares of Series E Preferred, of one or more warrants to purchase shares of Common Stock, or the exercise of any such warrant. 14 (d) EFFECT OF SETTING RECORD DATE. If the Corporation shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or deliver such dividend or distribution, then thereafter no adjustment in the Conversion Price then in effect shall be required by reason of the taking of such record. (e) CERTIFICATE OF ADJUSTMENT. Upon any increase or decrease in the Conversion Price, then, and in each such case, the Corporation promptly shall deliver to each registered holder of Series G Preferred at least five Business Days prior to effecting any of the foregoing transactions a certificate, signed by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation, setting forth in reasonable detail the event requiring the adjustment and specifying, to the extent feasible, (x) the method by which such adjustment was calculated and (y) the increased or decreased Conversion Price then in effect following such adjustment. Notwithstanding the foregoing, on each Issue Date the Corporation shall send to each registered holder a certificate signed by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation setting forth the Conversion Price as of such Date. (f) NO FRACTIONAL SHARES. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of any shares of Series G Preferred. If more than one share of Series G Preferred shall be surrendered for conversion at 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 Liquidation Preference (plus accrued and unpaid dividends, including any Additional Dividends) of the shares of Series G Preferred so surrendered. If the conversion of any share or shares of Series G Preferred results in a fraction, an amount equal to such fraction multiplied by the Current Market Price of the Common Stock on the Business Day preceding the day of conversion shall be paid to such holder in cash by the Corporation. (g) TRANSACTIONS. In case of any capital reorganization or reclassification or other change of outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value), or in case of any consolidation or merger of the Corporation with or into another Person (other than a consolidation or merger in which the Corporation is the resulting or surviving Person and which does not result in any reclassification or change of outstanding Common Stock) (any of the foregoing, a "TRANSACTION"), the Corporation, or such successor or purchasing Person, as the case may be, shall execute and deliver to each holder of Series G Preferred at least 10 Business Days prior to effecting any of the foregoing Transactions a certificate that the holder of each share of Series G Preferred then outstanding shall have the right after the Transaction to convert such share of Series G Preferred into the kind and amount of shares of stock or other securities (of the Corporation or another issuer) or property or cash receivable upon such Transaction by a holder of the number of shares of Common Stock into which such share of Series G Preferred could have been converted immediately prior to such Transaction (without giving effect to the Conversion Limit). Such certificate shall provide for adjustments 15 which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 8. If, in the case of any such Transaction, the stock, other securities, cash or property receivable thereupon by a holder of Common Stock includes shares of stock or other securities of a Person other than the successor or purchasing Person and other than the Corporation, which controls or is controlled by the successor or purchasing Person or which, in connection with such Transaction, issues stock, securities, other property or cash to holders of Common Stock, then such certificate also shall be executed by such Person, and such Person shall, in such certificate, specifically acknowledge the obligations of such successor or purchasing Person and acknowledge its obligations to issue such stock, securities, other property or cash to the holders of Series G Preferred upon conversion of the shares of Series G Preferred as provided above. The provisions of this Section 8(g) and any equivalent thereof in any such certificate similarly shall apply to successive Transactions. (h) NOTICE. In case at any time or from time to time: (i) the Corporation shall declare a dividend (or any other distribution) on its Common Stock; (ii) the Corporation shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any shares of stock of any class or of any other rights or warrants; (iii) there shall be any reclassification of the Common Stock, or any consolidation or merger to which the Corporation is a party and for which approval of any shareholders of the Corporation is required, or any sale or other disposition of all or substantially all of the assets of the Corporation (other than a Change of Control, the notice requirements for which are governed by Section 5(d)); or (iv) there shall be any voluntary or involuntary dissolution, liquidation or winding up of the Corporation; then the Corporation shall mail to each holder of shares of Series G Preferred at such holder's address as it appears on the transfer books of the Corporation, as promptly as possible but in any event at least 10 days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, conveyance, dissolution, liquidation or winding up is expected to become effective. Such notice also shall specify the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for shares of stock or other securities or property or cash deliverable upon such reclassification, consolidation, merger, sale, conveyance, dissolution, liquidation or winding up. 16 (i) RESERVATION OF COMMON STOCK. The Corporation shall at all times reserve and keep available for issuance upon the conversion of the Series G Preferred pursuant to Section 8(a) or 10(a), such number of its authorized but unissued shares of Common Stock as will from time to time be sufficient to permit the conversion of all outstanding shares of Series G Preferred, and shall take all action required to increase the authorized number of shares of Common Stock if at any time there shall be insufficient authorized but unissued shares of Common Stock to permit such reservation or to permit the conversion of all outstanding shares of Series G Preferred. (j) ISSUANCE OF CERTIFICATES. The issuance or delivery of certificates for Common Stock upon the conversion of shares of Series G Preferred pursuant to Section 8(a) or 10(a) shall be made without charge to the converting holder of shares of Series G Preferred for such certificates or for any tax in respect of the issuance or delivery of such certificates or the securities represented thereby, and such certificates shall be issued or delivered in the respective names of, or (subject to compliance with the applicable provisions of federal and state securities laws) in such names as may be directed by, the holders of the shares of Series G Preferred converted; PROVIDED, HOWEVER, that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any such certificate in a name other than that of the holder of the shares of Series G Preferred converted, and the Corporation shall not be required to issue or deliver such certificate unless or until the Person or Persons requesting the issuance or delivery thereof shall have paid to the Corporation the amount of such tax or shall have established to the reasonable satisfaction of the Corporation that such tax has been paid. (k) CALCULATION OF CONVERSION PRICE. On each Issue Date, each share of Series G Preferred to be issued on such date shall have a proposed conversion price (the "PROPOSED CONVERSION PRICE") equal to the lesser of (x) $2.25 and (y) 115% of the average of the volume-weighted average of all trades reported on NASDAQ over the five Trading Days immediately preceding to such Issue Date; PROVIDED, that, if the Corporation issues shares of Series G Preferred having an aggregate Liquidation Preference of at least $8,000,000 on or before July 5, 2001, the Conversion Price for such shares shall be $2.00, subject to adjustment pursuant to Section 8(c) and this Section 8(k). On each Issue Date, the weighted average of the Conversion Price of all shares of Series G Preferred (if any) outstanding immediately prior to such Issue Date and the Proposed Conversion Price of all shares of Series G Preferred to be issued on such Issue Date (the "WEIGHTED AVERAGE AMOUNT") shall be calculated. On each Issue Date, the Conversion Price of all shares of Series G Preferred, including those issued prior to such Issue Date and those to be issued on such Issue Date, shall as of such Issue Date, and thereafter unless and until the Corporation issues additional shares of Series G Preferred, be equal to the Weighted Average Amount as of such date, which Conversion Price shall be subject to adjustment pursuant to Section 8(c). (l) CONVERSION LIMIT. Notwithstanding anything to the contrary, on any day prior to the Stockholder Approval Certification Date, the maximum number of whole or fractional shares of Series G Preferred that may be converted into Common Stock pursuant to any provision of this Certificate of Designation shall be the number of 17 shares of Series G Preferred that, if converted into shares of Common Stock at the then applicable Conversion Price, would convert into the "Maximum Remaining Pre-Approval Shares." The "Maximum Remaining Pre-Approval Shares" means a number of shares of Common Stock equal to (1) the Pre-Stockholder Approval Number, minus (2) the number of shares of Common Stock, if any, then already issued by the Corporation pursuant to the conversion of any Series G Preferred. Thereafter, no additional shares of Series G Preferred may be converted while the Conversion Limit is in effect. Until the Stockholder Approval Certification Date, no Series G Preferred holder may convert pursuant to Section 8(a) without approval of holders of a majority of the Series G Preferred. The preceding portion of Section 8(l) is referred to in this Certificate of Designation as the "Conversion Limit." The Conversion Limit shall act merely to limit the number of shares of Common Stock issuable upon conversion of the Series G Preferred prior to the Stockholder Approval Certification Date and not to restrict any adjustments to the Conversion Price, whether pursuant to Section 8(c) or otherwise, and shall not affect any matter other than the conversion of shares of Series G Preferred into shares of Common Stock. For the avoidance of doubt, the adjustments to the Conversion Price pursuant to Section 8(c) shall be calculated regardless of whether the Conversion Limit is in effect and the Conversion Limit shall act merely to limit the number of shares of Common Stock issuable upon conversion of the Series G Preferred prior to Stockholder Approval (and not to restrict any adjustments to the Conversion Price). Section 9. CERTAIN REMEDIES. Any registered holder of Series G Preferred shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Certificate of Designation and to enforce specifically the terms and provisions of this Certificate of Designation in any court of the United States or any state thereof having jurisdiction, this being in addition to any other remedy to which such holder may be entitled at law or in equity. Section 10. AUTOMATIC CONVERSION. (a) TIME OF CONVERSION. If at any time after the first anniversary of the Effective Date, the Market Price of the Common Stock for 20 consecutive Trading Days exceeds $10.00 per share (as appropriately adjusted for stock splits, stock combinations and similar events), then on the 30th Business Day following the end of such 20-day period (the "CONVERSION DATE"), all outstanding shares of Series G Preferred shall automatically convert, subject to the Conversion Limit (if any), without any action by the holders thereof, into such number of fully paid and non-assessable shares of Common Stock as is equal, subject to Section 8(f), to the product of the number of shares of Series G Preferred being so converted multiplied by the quotient of (i) the Liquidation Preference (plus accrued and unpaid dividends, including any Additional Dividends to and including the Conversion Date) divided by (ii) the Conversion Price in effect on the Conversion Date. (b) OFFICER'S CERTIFICATE. The Corporation will provide notice to holders of record of Series G Preferred of the conversion pursuant to Section 10(a) at 18 least 20 Business Days prior to the Conversion Date, by first-class mail postage prepaid, to each holder of record of the Series G Preferred, at such holder's address as it appears on the stock transfer books of the Corporation. Such notice shall include an officer's certificate attesting to the satisfaction of the condition precedent to optional conversion, stating the Conversion Price in effect on the Conversion Date and the number of fully paid and non-assessable shares of Common Stock into which such shares of Series G Preferred will be converted in accordance with Section 8 and this Section 10. (c) The Corporation shall deposit for the benefit of the holders of shares of Series G Preferred the share certificates representing the shares of Common Stock deliverable upon conversion of the shares of Series G Preferred with a bank or trust company having a capital and surplus of at least $1 billion, with instructions to such bank or trust company to deliver the certificates to the holders of shares of Series G Preferred upon surrender of the certificates for such shares; PROVIDED, HOWEVER, that the making of such deposit shall not release the Corporation from any of its obligations hereunder. Any certificates so deposited by the Corporation and unclaimed at the end of two years from the Conversion Date shall revert to the Corporation and the bank or trust company shall be relieved of all responsibility in respect thereof and any holder of shares of Series G Preferred so converted shall look only to the Corporation for the certificate representing the Common Stock issued upon the conversion, as provided herein. (d) EFFECT OF CONVERSION. Notice of conversion having been given as provided in Section 10(b), upon the deposit pursuant to subsection (c) of the certificates representing the shares of Common Stock issuable upon conversion of the shares of Series G Preferred, notwithstanding that any certificates for such shares shall not have been surrendered for cancellation, from and after the Conversion Date (i) the shares represented thereby shall no longer be deemed outstanding, (ii) the rights to receive dividends thereon shall cease to accrue, and (iii) all rights of the holders of shares of Series G Preferred to be converted shall cease and terminate, excepting only the right to receive the shares of Common Stock. If the Corporation shall default in the execution and delivery of the shares of Common Stock, then no certificates evidencing such shares shall be deemed surrendered and such shares shall remain outstanding and the rights of holders of Series G Preferred shall continue to be those of holders of shares of the Series G Preferred. Section 11. DEFINITIONS. For the purposes of this Certificate of Designation of Series G Preferred, the following terms shall have the meanings indicated: "ADDITIONAL AMOUNT" means an amount equal to the amount of dividends to accrue on a share of Series G Preferred pursuant to Section 2(a) hereof from the date of issuance of such share to and including the fifth anniversary thereof, assuming that on each Quarterly Dividend Date such dividends to be paid on such date were added to the Liquidation Preference on such Quarterly Dividend Date for purposes of Section 2(a). 19 "AFFILIATE" shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act; PROVIDED, that for purposes of this Certificate, neither the 1818 Fund III, L.P. nor any of its Affiliates shall be considered an Affiliate of the Corporation. "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or other day on which commercial banks in the State of Delaware are authorized or required by law or executive order to close. A "CHANGE OF CONTROL" of the Corporation shall mean such times as: (i) Any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) is or becomes the beneficial owner, directly or indirectly, of outstanding shares of stock of the Corporation entitling such Person or Persons to exercise 50% or more of the total votes (excluding the Series G Preferred) entitled to be cast at a regular or special meeting, or by action by written consent, of shareholders of the Corporation (the term "beneficial owner" shall be determined in accordance with Rule 13d-3, promulgated by the Commission under the Exchange Act); (ii) A majority of the Board of Directors of the Corporation shall consist of Persons other than Continuing Directors. The term "Continuing Director" shall mean any member of the Board of Directors on the Effective Date and any other member of the Board of Directors who shall be recommended or elected to succeed or become a Continuing Director by a majority of Continuing Directors who are then members of the Board of Directors; (iii) The shareholders of the Corporation shall have approved a recapitalization, reorganization, merger, consolidation or similar transaction, in each case with respect to which all or substantially all the Persons who were the respective beneficial owners, directly or indirectly, of the outstanding shares of capital stock of the Corporation immediately prior to such recapitalization, reorganization, merger, consolidation or similar transaction, will own less than 50% of the combined voting power of the then outstanding shares of capital stock of the Corporation resulting from such recapitalization, reorganization, merger, consolidation or similar transaction; PROVIDED, that any such recapitalization shall not be considered a Change of Control if the holders of Series G Preferred have the right to participate on at least a PARI PASSU basis; (iv) The shareholders of the Corporation shall have approved of the sale or other disposition of all or substantially all the assets of the Corporation in one transaction or in a series of related transactions; (v) Any transaction occurs (other than one described in (iii) above or (vi) below), the result of which is that the Common Stock is not required to be registered under Section 12 of the Exchange Act and that the holders of Common Stock do not receive common stock of the Person surviving such transaction which is required to be registered under Section 12 of the Exchange Act; or 20 (vi) Immediately after any merger, consolidation, recapitalization or similar transaction, D. Gregory Smith or a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) shall be the beneficial owners, directly or indirectly, of outstanding shares of capital stock of the Corporation (or any Person surviving such transaction) entitling them collectively to exercise 50% or more of the total voting power of shares of capital stock of the Corporation (or the surviving Person in such transaction) and in connection with or as a result of such transaction, the Corporation (or such surviving Person) shall have incurred or issued additional indebtedness such that the total indebtedness so incurred or issued equals at least 50% of the consideration payable in such transaction; PROVIDED, that any such transactions shall not be considered a Change of Control if the holders of Series G Preferred have the right to participate on at least a PARI PASSU basis. "CHANGE OF CONTROL WINDOW" shall mean, as to any Change of Control, the period beginning on the earlier of (x) the date such Change of Control occurs and (y) the first date as of which the Corporation has given written notice of such Change of Control to each registered holder of Series G Preferred, and ending on the date 180 days after the later to occur of (i) the date such Change of Control occurs and (ii) the first date as of which the Corporation has given written notice of such Change of Control to each registered holder of Series G Preferred. "COMMON STOCK" shall mean the common stock, par value $.01 per share, and each other class of capital stock of the Corporation into which such stock is reclassified or reconstituted. "CONVERSION LIMIT" shall mean the limitation set forth in Section 8(l). "CURRENT MARKET PRICE" per share shall mean, on any date specified herein for the determination thereof, (a) the average daily Market Price of the Common Stock for those days during the period of 20 days, ending on such date, which are Trading Days, and (b) if the Common Stock is not then listed or admitted to trading on any national securities exchange or quoted in the over-the-counter market, the Market Price on such date. "DRAWDOWN DATE" shall mean September 18, 2001. "EFFECTIVE DATE" shall mean July 2, 2001. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder. "FAIR MARKET VALUE" shall mean the amount which a willing buyer, under no compulsion to buy, would pay a willing seller, under no compulsion to sell, in an arm's-length transaction (assuming that the Common Stock is valued "as if fully distributed" so that, among other things, there is no consideration given for minority investment discounts or discounts related to illiquidity or restrictions on transferability). 21 "GAAP" shall mean the generally accepted United States accounting principles in effect from time to time. "INVESTMENT AGREEMENT" shall mean the Stock and Warrant Purchase Agreement, dated July 2, 2001 between the Corporation, The 1818 Fund III, L.P. and the other persons listed therein, as the same may be amended from time to time. "ISSUE DATE" shall mean, with respect to any share of Series G Preferred, the original date of issuance of such share of Series G Preferred pursuant to the Investment Agreement. "JUNIOR STOCK" shall mean any capital stock of the corporation other than Senior Stock or Parity Stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series G Preferred including, without limitation, the Series F Junior Preferred Stock of the Corporation and the Common Stock. "LIQUIDATION PREFERENCE" with respect to a share of Series G Preferred shall mean $100,000. "MARKET PRICE" shall mean, per share of Common Stock on any date specified herein: (a) the closing price per share of the Common Stock on such date published in THE WALL STREET JOURNAL or, if no such closing price on such date is published in THE WALL STREET JOURNAL, the average of the closing bid and asked prices on such date, as officially reported on the principal national securities exchange on which the Common Stock is then listed or admitted to trading; (b) if the Common Stock is not then listed or admitted to trading on any national securities exchange but is designated as a national market system security, the last trading price of the Common Stock on such date; or (c) if there shall have been no trading on such date or if the Common Stock is not so designated, the average of the reported closing bid and asked prices of the Common Stock on such date as shown by NASDAQ and reported by any member firm of the NYSE, selected by the Corporation. If neither (a), (b) or (c) is applicable, Market Price shall mean the Fair Market Value per share determined in good faith by the Board of Directors of the Corporation which shall be deemed to be Fair Market Value unless holders of at least 50% of the outstanding shares of Series G Preferred request that the Corporation obtain an opinion of a nationally recognized investment banking firm chosen by such holders and the Corporation (at the Corporation's expense), in which event Fair Market Value shall be as determined by such investment banking firm. "NASDAQ" shall mean the National Market System of the Nasdaq Stock Market. "NYSE" shall mean the New York Stock Exchange, Inc. "PARITY STOCK" shall mean any capital stock of the corporation, other than Senior Stock, ranking on a par (either as to dividends or upon liquidation, dissolution or winding up) with the Series G Preferred. 22 "PERSON" shall mean any individual, firm, corporation, partnership, limited liability company trust, incorporated or unincorporated association, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall any successor (by merger) of such entity. "PRE-STOCKHOLDER APPROVAL NUMBER" shall mean as of any date 20% of the number of shares of Common Stock issued and outstanding prior to the Effective Date (subject to adjustment to reflect stock splits, stock dividends, stock combinations, recapitalizations and like occurrences), rounded down to the nearest whole number of shares, minus the sum of (x) the number of shares of Common Stock then issuable upon exercise of all then-outstanding warrants issued pursuant to the Investment Agreement (the "WARRANTS"), plus (y) the number of shares of Common Stock previously issued upon exercise of the Warrants, if any, plus (z) one; in the case of both (x) and (y) rounded down to the nearest whole number. "SENIOR STOCK" shall mean the Series D Preferred, the Series E Preferred and any other capital stock of the Corporation ranking senior (either as to dividends or upon liquidation, dissolution or winding up) to the Series G Preferred. "SERIES D PREFERRED" shall mean the Corporation's Series D Convertible Preferred Stock. "SERIES E PREFERRED" shall mean the Corporation's 8% Convertible Preferred Stock, Series E. "STOCKHOLDER APPROVAL" shall mean the vote, by a majority of the votes cast in the Stockholder Vote, in favor of approval of the matter considered in such vote. "STOCKHOLDER APPROVAL CERTIFICATION DATE" shall mean earlier of (i) the date that the Stockholder Meeting occurred and that Stockholder Approval has been obtained, or (ii) the date of a certificate, delivered by the Corporation to each registered holder of Series G Preferred, signed by the President or a Vice-President and by the Secretary or an Assistant Secretary of the Corporation, stating that the Corporation has determined that the Corporation is not required by any Law or by any NASDAQ Rule to obtain Stockholder Approval, the basis for such determination, and that the Corporation has then confirmed that such determination is acceptable to Persons holding a majority of the then outstanding shares of Series G Preferred. "STOCKHOLDER MEETING" shall mean a special meeting of the Corporation's stockholders, duly called and convened, at which a quorum is present throughout and at which the Stockholder Vote is conducted. "STOCKHOLDER VOTE" shall mean a vote, by those of the Corporation's stockholders entitled to vote thereon, on the matter of approval of the terms of the Investment Agreement and of the Series G Preferred. 23 "SUBSIDIARY" shall mean, with respect to any Person, a corporation or other entity of which 50% or more of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by such Person. "TRADING DAYS" shall mean a day on which the national securities exchanges are open for trading. Section 12. MODIFICATION OR AMENDMENT. Except as specifically set forth herein, modifications or amendments to this Certificate of Designation may be made by the Corporation with the consent of the holders of at least 50% of the outstanding shares of Series G Preferred. 24 IN WITNESS WHEREOF, Z-Tel Technologies, Inc. has caused this Certificate to be duly executed in its corporate name on this 2nd day of July, 2001. Z-TEL TECHNOLOGIES, INC. By: /s/ D. Gregory Smith --------------------------------------- Name: D. Gregory Smith Title: CEO