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Exhibit 3.2
CERTIFICATE OF DESIGNATION
OF THE POWERS, PREFERENCES
AND RELATIVE,
PARTICIPATING, OPTIONAL AND OTHER SPECIAL
RIGHTS OF PREFERRED STOCK
AND QUALIFICATIONS,
LIMITATIONS AND
RESTRICTIONS THEREOF
of
SERIES D CONVERTIBLE
PREFERRED STOCK
of
GLOBALOPTIONS GROUP,
INC.
GLOBALOPTIONS GROUP,
INC. , a Delaware corporation (the “ Corporation
”), pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, does hereby make this
Certificate of Designation and does hereby state and certify that
pursuant to the authority expressly vested in the Board of
Directors of the Corporation (the “ Board ”) by
the Certificate of Incorporation of the Corporation, as amended to
date (the “ Certificate of Incorporation ”),
which authorizes the issuance of 15,000,000 shares of preferred
stock, $0.001 par value per share, in one or more series, the Board
duly adopted the following resolutions, which resolutions remain in
full force and effect as of the date hereof:
RESOLVED, that,
pursuant to Article Fourth of the Certificate of Incorporation, the
Board hereby authorizes the issuance of, and fixes the designation
and preferences and relative, participating, optional and other
special rights, and qualifications, limitations and restrictions,
of a series of preferred stock of the Corporation consisting of
100,000 shares, par value $0.001 per share, to be designated
“Series D Convertible Preferred Stock” (hereinafter,
the “ Series D Preferred Stock ”); and be
it
RESOLVED, that each
share of Series D Preferred Stock shall rank equally in all
respects and shall be subject to the following terms and
provisions:
1. Dividends . The
holders of the Series D Preferred Stock shall be entitled to
receive any dividends or other distributions from the Corporation
that are declared on the Corporation’s common stock, par
value $.001 per share (the “ Common Stock ”), in
which case holders of Series D Preferred Stock shall each be
entitled to receive, on an As-Converted Basis (as defined below,
but without regard to the Beneficial Ownership Cap limitations set
forth in Section 4(f) hereof), any dividends or distributions
(other than dividends payable solely in additional Common Stock)
declared by the Board and paid to the holders of Common Stock, out
of any assets legally available therefor, pari passu with the
amount of such dividends to be distributed to the holders of Common
Stock immediately prior to the declaration of such dividend or
distribution. “ As-Converted Basis ” means, as
of the time of determination, that, solely for the purpose of
determining the applicable right (and without limitation to any
rights of the Series D Preferred Stock), the Series D Preferred
Stock shall be treated as if such Series D Preferred Stock had been
converted into that number of shares of Common Stock which a holder
of Series D Preferred Stock would hold if all shares of Series D
Preferred Stock held by such holder were converted into shares of
Common Stock pursuant to Section 4 hereof at the then
applicable Conversion Value (as defined below).
2. Voting Rights .
Holders of the Series D Preferred Stock shall not have any voting
rights, except to the extent required by the General Corporation
Law of the State of Delaware. In the event that the holders of the
Series D Preferred Stock are required to vote as a class, the
affirmative vote of holders of not less than a majority of the
outstanding shares of Series D Preferred Stock shall be required to
approve each such matter to be voted upon, and if any matter is
approved by such requisite percentage of holders of Series D
Preferred Stock, such matter shall bind all holders of Series D
Preferred Stock.
3. Rights on
Liquidation .
(a) In the event of any
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation (any such event being hereinafter referred to as a
“ Liquidation ”), the holders of record of the
shares of the Series D Preferred Stock shall be entitled to
receive, immediately after any distributions required by the
Certificate of Incorporation and any certificate(s) of designation,
powers, preferences and rights in respect of any and all series and
classes of preferred stock of the Company, whether or not
outstanding as of the date hereof, which by their terms do not rank
junior to, or pari passu with, the Series D Preferred Stock,
including, without limitation, the Corporation’s Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock
and Series C Convertible Preferred Stock (“ Senior
Securities ”), and before and in preference to any
distribution or payment of assets of the Corporation or the
proceeds thereof may be made or set apart with respect to the
Common Stock and any other securities of the Corporation which by
their terms rank junior to the Series D Preferred Stock with
respect to the distribution of the assets of the Corporation upon
Liquidation (“ Junior Securities ”), an amount
in cash with respect to each share of Series D Preferred Stock held
by such holders, equal to $0.001 per share (subject to adjustment
in the event of stock splits, combinations or similar events with
respect to the Series D Preferred Stock) (the “
Liquidation Preference ”). If, upon such Liquidation,
the assets of the Corporation available for distribution to the
holders of Series D Preferred Stock and any securities of the
Corporation which by their terms have equal priority with the
Series D Preferred Stock with respect to the distribution of the
assets of the Corporation upon Liquidation (“ Parity
Securities ”) shall be insufficient to permit payment in
full to the holders of the Series D Preferred Stock and Parity
Securities, then the entire assets and funds of the Corporation
legally available for distribution to such holders of the Series D
Preferred Stock and Parity Securities then outstanding shall be
distributed ratably among such holders based upon the proportion
the total amount distributable on each share upon liquidation bears
to the aggregate amount available for distribution on all shares of
the Series D Preferred Stock and of such Parity Securities, if
any.
(b) Upon the completion of
the distributions required by paragraph (a) of this
Section 3, if assets remain in the Corporation, they shall be
distributed to holders of Series D Preferred Stock pro rata with
holders of Junior Securities, based on the number of shares of
Common Stock into which the Series D Preferred Stock is convertible
at the then effective Conversion Value (as defined
below).
(c) A Change of Control (as
defined below) of the Corporation shall not be deemed a
Liquidation, but shall instead be governed by the terms of
Section 6 below.
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4. Conversion
.
(a) Right to Convert .
Subject to the limitations set forth in Section 4(f) hereof,
the holder of any share or shares of Series D Preferred Stock shall
have the right at any time, at such holder’s option, to
convert all or any lesser portion of such holder’s shares of
Series D Preferred Stock into such number of fully paid and
non-assessable shares of Common Stock as is determined by dividing
(i) the product of (x) $1,000 (subject to adjustment in
the event of stock splits, combinations or similar events with
respect to the Series D Preferred Stock) multiplied by (y) the
number of shares of Series D Preferred Stock to be converted, by
(ii) the Conversion Value (as defined below) then in effect
for such Series D Preferred Stock. No fractional shares or scrip
representing fractional shares shall be issued upon the conversion
of any Series D Preferred Stock. With respect to any fraction of a
share of Common Stock called for upon any conversion, the
Corporation shall pay to the holder an amount in cash equal to such
fraction multiplied by the Current Market Price per share of the
Common Stock.
“ Current Market
Price ” means, in respect of any share of Common Stock on
any date herein specified:
(1) if there shall not then
be a public market for the Common Stock, the higher of (a) the
book value per share of Common Stock at such date, and (b) the
fair market value per share of Common Stock as determined in good
faith by the Board, or
(2) if there shall then be a
public market for the Common Stock, (i) the closing bid price
on such day on the principal stock exchange (including Nasdaq) on
which such Common Stock is then listed or admitted to trading, or
quoted, as applicable, (ii) if no sale takes place on such day
on any such exchange, the last reported closing bid price on such
day as officially quoted on any such exchange (including Nasdaq),
(iii) if the Common Stock is not then listed or admitted to
trading on any stock exchange, the last reported closing bid price
on such day in the over-the-counter market, as furnished by the
National Association of Securities Dealers Automatic Quotation
System or the Pink Sheets LLC (formerly the National Quotation
Bureau, Inc.), (iv) if neither such corporation at the time is
engaged in the business of reporting such prices, as furnished by
any similar firm then engaged in such business, or (v) if
there is no such firm, as furnished by any member of the National
Association of Securities Dealers, Inc. (the “ NASD
”) selected mutually by holders of a majority of the Series D
Preferred Stock and the Corporation or, if they cannot agree upon
such selection, as selected by two such members of the NASD, one of
which shall be selected by holders of a majority of the Series D
Preferred Stock and one of which shall be selected by the
Corporation.
(b) Mandatory
Conversion .
(i) Upon the
Corporation’s written request, a holder of Series D Preferred
Stock shall advise the Corporation in writing of the number of
shares of Common Stock that are then beneficially owned by such
holder and its Affiliates (as defined below) and any other persons
or entities whose beneficial ownership of Common Stock would be
aggregated with the holder’s for purposes of
Section 13(d) of the
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Securities Exchange Act of
1934, as amended (the “ Exchange Act ”)
(including shares held by any “group” of which the
holder is a member, but, for avoidance of doubt, excluding shares
of Common Stock issuable upon conversion or exercise of securities
or rights to acquire securities that have limitations on the right
to convert, exercise or purchase similar to the limitation set
forth in Section 4(f) hereof), all determined in accordance
with Section 4(f) (such shares of Common Stock beneficially
owned by such holder and such other persons and entities are
hereinafter referred to as the “ Common Stock Beneficially
Owned ” by such holder). If the shares of Common Stock
Beneficially Owned by such holder amount to less than 4.99% of the
total number of shares of Common Stock then issued and outstanding,
the Corporation may, at its option, compel such holder, by written
notice to such holder (the “ Notice ”), to
convert such portion of the Series D Preferred Stock owned by such
holder into so many fully paid and non-assessable shares of Common
Stock, determined in accordance with Section 4(a), so that the
total number of shares of Common Stock Beneficially Owned by such
holder after such conversion shall equal up to 4.99%, but not more,
of the total number of shares of Common Stock issued and
outstanding after such conversion. The foregoing provisions of this
Section 4(b) shall not apply to a Blocked Holder that
exercised the Series D Option (as such terms are defined in the
Restructuring Agreement dated on or about the filing date of this
Certificate of Designation (the “ Filing Date ”)
by and among the Corporation and the other parties signatory
thereto (the “ Restructuring Agreement
”)).
(ii) If a holder has given
written notice to the Corporation of its election not to be
governed by the Beneficial Ownership Cap (as defined herein), the
Corporation also may, at its option, compel such holder, by
delivering the Notice to such holder no less than 61 days after the
date of such holder’s written notice, to convert all of the
Series D Preferred Stock owned by such holder into such number of
fully paid and non-assessable shares of Common Stock as is
determined in accordance with Section 4(a).
(iii) Any conversion
described in the two immediately preceding paragraphs is
hereinafter referred to as a “ Mandatory Conversion
” and a “ Mandatory Conversion Date ”
shall be the date when a Notice shall be deemed delivered pursuant
to Section 13. Nothing in this Section 4(b) shall be
construed so as to limit the right of a holder of Series D
Preferred Stock to convert pursuant to Section 4(a) at any
time.
(c) Mechanics of
Conversion .
(i) Such right of conversion
(other than Mandatory Conversion) shall be exercised by the holder
of shares of Series D Preferred Stock by delivering to the
Corporation a conversion notice in the form attached hereto as
Exhibit A (the “ Conversion Notice ”),
appropriately completed and duly signed and specifying the number
of shares of Series D Preferred Stock that the holder elects to
convert (the “ Converting Shares ”) into shares
of Common Stock, and by surrender not later than two
(2) business days thereafter of the certificate or
certificates representing such Converting Shares. The Conversion
Notice shall also contain a statement of the name or names (with
addresses and tax identification or social security numbers) in
which the certificate or certificates for Common Stock shall be
issued, if other than the name in which the
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Converting Shares are
registered. Promptly after the receipt of the Conversion Notice,
the Corporation shall issue and deliver, or cause to be delivered,
to the holder of the Converting Shares or such holder’s
nominee, a certificate or certificates for the number of shares of
Common Stock issuable upon the conversion of such Converting
Shares. Such conversion shall be deemed to have been effected as of
the close of business on the date of receipt by the Corporation of
the Conversion Notice (the “ Conversion Date ”),
and the person or persons entitled to receive the shares of Common
Stock issuable upon conversion shall be treated for all purposes as
the holder or holders of record of such shares of Common Stock as
of the close of business on the Conversion Date.
(ii) The Corporation shall
issue certificates representing the shares of Common Stock to be
received upon conversion of the Series D Preferred Stock (the
“ Conversion Shares ”) (and certificates for
unconverted Series D Preferred Stock) within three
(3) business days of the Conversion Date and shall transmit
the certificates by messenger or reputable overnight delivery
service to reach the address designated by such holder within three
(3) business days after the receipt by the Corporation of such
Conversion Notice. If certificates evidencing the Conversion Shares
are not received by the holder within five (5) business days
of the Conversion Notice, then the holder will be entitled to
revoke and withdraw its Conversion Notice, in whole or in part, at
any time prior to its receipt of those certificates. In lieu of
delivering physi
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