Exhibit 3.5
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MEDTOX SCIENTIFIC, INC.
MEDTOX Scientific, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
The amendment to the Corporation's Certificate of Incorporation set
forth in the following resolution approved by the Corporation's Board of
Directors and stockholders was duly adopted in accordance with the provisions of
section 242 of the General Corporation Laws of the State of Delaware:
"RESOLVED, that the Certificate of Incorporation of the corporation be
amended by striking Article FOURTH in its entirety and replacing therefor:
'FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is FOUR MILLION SEVEN HUNDRED FIFTY THOUSAND
(4,750,000) shares, THREE MILLION SEVEN HUNDRED FIFTY THOUSAND (3,750,000) of
which shall be of a class designated as Common Stock with a par value of FIFTEEN
CENTS ($0.15) per share and ONE MILLION of which shall be a class designated as
Preferred Stock with a par value of ONE DOLLAR ($1.00) per share. All or any
part of the authorized capital stock of the Corporation may be issued and sold,
from time to time by the corporation, without further action by stockholders,
for such consideration (but not less than the par value thereof) and to such
persons and on such terms and conditions as may, from time to time, be fixed or
determined by the Board of Directors. The voting powers, designations,
preferences, and relative, participating, optional or other special rights and
the qualifications, limitations or restrictions thereof, of the classes of stock
of the corporation which are fixed by this Certificate of Incorporation, and the
authority vested in the Board of Directors to fix by resolution or resolution
providing for the issue of Preferred Stock the voting powers, designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of the shares of
Preferred Stock which are not fixed by the Certificate of Incorporation, are as
follows:
1. The Preferred Stock may be issued from time to time in one or more
series, each such series to have such distinctive designation or title as may be
fixed by the Board of Directors prior to the issuance of any shares thereof.
Each such series may differ from every other series already outstanding as may
be determined from time to time by the Board of Directors prior to the issuance
of any shares thereof, in any or all of the following, but in other, respects:
(a) The rate of dividend which the Preferred Stock of any such
series shall be entitled to receive, whether the dividends of such series shall
be cumulative or non-cumulative and, if such dividends shall be cumulative, the
date from which they shall be cumulative.
(b) The right or obligation, if any, of the corporation to
redeem shares of Preferred Stock of any series and the amount per share which
the Preferred Stock of any such series shall be entitled to receive in case of
the redemption thereof, and the right of the corporation, if any, to reissue any
such shares after the same shall have been redeemed.
(c) The amount per share which the Preferred Stock of any such
series shall be entitled to receive in case of the voluntary liquidation,
distribution or sale of assets, dissolution or winding up of the corporation, or
in case of the involuntary liquidation, distribution or sale of assets,
dissolution or winding up of the corporation.
(d) The right, if any, of the holders of Preferred Stock of
any such series to convert the same into other classes of stock and the terms
and conditions of such conversion.
(e) The voting power, if any, of the holders of Preferred
Stock of any such series, and the terms and conditions under which they may
exercise such voting power.
(f) The terms of the sinking fund or fund of similar nature, if any, to be
provided for the Preferred Stock of any such series.
The description of terms of the Preferred Stock of each series in
respect of the foregoing particulars shall be fixed and determined by the Board
of Directors by appropriate resolution at or prior to the time of the
authorization of the issue of the original shares of each such series.
2. In case the stated dividends and the amounts payable on liquidation,
distribution or sale of assets, dissolution or winding up of the corporation are
not paid in full, the stockholders of all series of the Preferred Stock shall
share ratably in the payment of dividends, including accumulations, if any, in
accordance with the same which would be payable on such shares if all dividends
were declared and paid in full and in any distribution of assets other than by
way of dividends, in accordance with the sums which would be payable on such
distribution if all sums payable were discharged and paid in full.
3. The holders of the Preferred Stock shall be entitled to receive,
when and as declared by the Board of Directors, out of funds legally available
therefor, preferential dividends in cash at, but not exceeding the annual rate
fixed for each particular series. The holders of the Preferred Stock shall not
be entitled to receive any dividends thereon other than dividends referred to in
this Subdivision 3.
4. So long as any of the Preferred Stock remains outstanding, in no
event shall any dividend whatever, whether in cash or other property (other than
shares of Common Stock), be paid or declared or any distribution be made on the
Common Stock, nor shall any shares of the Common Stock be purchased, retired or
otherwise acquired for a consideration by the corporation unless (a) the full
dividends of the Preferred Stock for all past dividend periods from the
respective date or then current quarter-yearly dividend period shall have been
paid or declared and a sum set apart sufficient for the payment thereof, and (b)
if at any time he corporation is obligated to retire shares of any series of the
Preferred Stock pursuant to a sinking fund or a fund of a similar nature, all
arrears, if any, in respect of the retirement of the Preferred Stock of all such
series shall have been made good. Subject to the foregoing provisions and not
otherwise, such dividends (payable in cash, stock or otherwise) as may be
determined by the Board of Directors may be declared and paid on the Common
Stock from time to time out of the remaining funds of the corporation legally
available therefor, and the Preferred Stock shall not be entitled to participate
in any such dividend, whether payable in cash, stock or otherwise.
5. In the event of any liquidation, distribution or sale of assets,
dissolution or winding up of the corporation, whether voluntary or involuntary,
before any distribution or payment shall be made to the holders of Common Stock,
the holders of the Preferred Stock of each series shall be entitled to be paid
in cash the applicable liquidation price per share fixed at the time of the
original authorization of issuance of shares of such respective series, together
with a sum in the case of each share of the Preferred Stock, computed at the
annual dividend on such share because cumulative to the date fixed for such
distribution or payment date paid thereon. If such payment shall have been made
in full to the holders of the Preferred Stock, the remaining assets and funds of
the corporation shall be distributed among the holders of the Common Stock
according to their respective shares.
6. Subject to the powers, preferences and rights and the qualification,
limitations and restrictions thereof, with respect to each class of capital
stock of the corporation having any preference or priority over the Common
Stock, the holders of the Common Stock shall have and possess all rights
appertaining to capital stock of the corporation. Holders of Common Stock may
not act by written consent without a meeting.'"
IN WITNESS WHEREOF, MEDTOX Scientific, Inc. has caused this Certificate to
be signed and attested by its duly authorized officers this 22nd of February,
1999.
MEDTOX Scientific, Inc.
By: /s/ Harry G. McCoy
Harry G. McCoy
President
ATTEST:
/s/ Kevin Wiersma
Kevin Wiersma