Exhibit 3I
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DVL, INC.
The undersigned corporation, DVL, Inc., a Delaware corporation
(the "Corporation"), in order to amend its Certificate of Incorporation, hereby
certifies as follows:
FIRST: The name of the Corporation is DVL, Inc.
SECOND: The Corporation hereby amends its Certificate of
Incorporation as follows:
Article FOURTH of the Certificate of Incorporation of DVL,
Inc. is hereby deleted and replaced in its entirety to read as follows:
"FOURTH: The total number of shares of capital stock
which the Corporation shall have the authority to issue is
Ninety-Five Million and One Hundred (95,000,100) shares, of which
Ninety Million (90,000,000) shares shall be Common Stock, par value
$.01 per share (the "Common Stock"), One Hundred (100) shares shall
be Class A Preferred Stock, par value $10.00 per share (the "Class A
Preferred Stock"), and Five Million (5,000,000) shares shall be
undesignated Preferred Stock, par value $.01 per share (the
"Preferred Stock").
A. Provisions Relating to the Common Stock.
(i) Dividends. The holders of shares of Common Stock
shall be entitled to receive such dividends as may be declared by the
Board of Directors of the Corporation, if any, out of funds legally
available therefor.
(ii) Liquidation Rights. Subject to the preferential
liquidation rights of the holders of the shares of the Class A
Preferred Stock and the Preferred Stock described in subparagraphs B
and C below, in the event of any voluntary or involuntary liquidation,
dissolution or winding up of, or any distribution of the assets of, the
Corporation, the holders of shares of Common Stock shall be entitled to
receive all of the assets of the Corporation available for distribution
to its stockholders ratably in proportion to the number of shares of
Common Stock held by them.
(iii) Voting Rights. The holders of the shares of
Common Stock shall be entitled to vote on all matters at all meetings
of the stockholders of the Corporation, and shall be entitled to one
vote for each share of Common Stock entitled to vote at such meeting as
a class separate from the holders of the shares of Class A Preferred
Stock and from the holders of the Preferred Stock.
B. Provisions Relating to the Class A Preferred
Stock.
(i) Designation and Amount. The distinctive
designation of this class of preferred stock is "Class A Preferred
Stock" and the number of shares constituting such class shall be One
Hundred (100).
(ii) Rank. The Class A Preferred Stock shall, with
respect to dividend rights and rights on liquidation, winding up and
dissolution, rank junior to all Senior Securities and senior to all
Junior Securities, all as more fully set forth herein. For the purposes
of this Article FOURTH, "Senior Securities" shall mean all classes and
series of stock of the Corporation hereafter authorized, issued or
outstanding, other than Junior Securities. For the purposes of this
Article FOURTH, "Junior Securities" shall mean the Common Stock of the
Corporation, par value $.01 per share, any other class or series of the
Corporation's common equity, and such other classes or series of stock
of the Corporation as shall be designated as junior to the Class A
Preferred Stock with respect to dividend rights and rights on
liquidation, winding up and dissolution by the Board of Directors of
the Corporation or by amendment of the Certificate of Incorporation of
the Corporation, duly adopted by the Corporation and its stockholders
as provided pursuant to the General Corporation Law of the State of
Delaware (the "DGCL").
(iii) Dividends. The holders of the shares of Class A
Preferred Stock shall be entitled to receive such dividends as may be
declared by the Board of Directors of the Corporation, if any, out of
funds legally available therefor.
(iv) Liquidation Preference. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, the holders of the shares of Class A
Preferred Stock then outstanding shall be entitled to be paid out of
the assets of the Corporation available for distribution to its
stockholders, prior and in preference to any distribution of any of the
assets of the Corporation, an amount in cash equal to $10.00 for each
share outstanding (the "Class A Liquidation Preference"). If the assets
of the Corporation are not sufficient to pay in full the Class A
Liquidation Preference payable to the holders of outstanding shares of
Class A Preferred Stock, then the holders of all such shares shall
share ratably in such distribution of assets in proportion to the
amount which would be payable on such distribution if the Class A
Liquidation Preference to which the holders of outstanding shares of
Class A Preferred Stock are entitled were paid in full. Upon any such
liquidation, dissolution or winding up of the Corporation, after the
holders of Class A Preferred Stock shall have been paid in full their
Class A Liquidation Preference, the remaining assets of the Corporation
may be distributed to the holders of shares of Common Stock and
Preferred Stock, and the holders of shares of Class A Preferred Stock
shall not be entitled to share therein. For the purposes of this
Article FOURTH, neither the voluntary sale, lease, conveyance, exchange
or transfer (for cash, shares of stock, securities or other
consideration) of all or any part of the property or assets of the
Corporation nor the merger or consolidation of the Corporation with one
or more corporations nor the reduction of the capital stock of the
Corporation shall be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary, of the Corporation. Written notice of any
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, stating the payment date and the place
where the distributable amount shall be payable, shall be given by
mail, postage prepaid, not less than thirty (30) days prior to the
payment date stated therein, to the holders of record of the Class A
Preferred Stock at their respective addresses as the same shall then
appear on the books of the Corporation.
(v) Voting Rights.
(a) Special Purpose Director. The holders of shares
of Class A Preferred Stock shall be entitled to nominate and elect one
director (the "Special Purpose Director") to the Board of Directors of
the Corporation by a vote of a majority of the then outstanding shares
of Class A Preferred Stock voting as one class at a meeting of such
holders or by written consent of the holders of a majority of such
shares then outstanding, provided, however, that such Special Purpose
Director, in accordance with Section 141(d) of the DGCL, shall have no
right to vote on matters presented for a vote at meetings of the Board
of Directors of the Corporation other than with respect to matters
relating to (i) the filing by the Corporation of a petition in
bankruptcy pursuant to Title 11 of the United States Code and (ii) in
connection with the insolvency of the Corporation, the dissolution or
liquidation of the Corporation or the making of a compromise or
arrangement under applicable state law between the Corporation and its
creditors who hold a substantial portion of the Corporation's
indebtedness (collectively, the "Bankruptcy Matters"). As to any
Bankruptcy Matter, only the unanimous vote of the fully constituted
Board of Directors of the Corporation (including, without limitation,
the Special Purpose Director) will be required to constitute an act of
the Board of Directors of the Corporation.
(b) Board Observation Rights. For so long as there
shall be a Special Purpose Director, and notwithstanding the limitation
upon the voting rights of the Special Purpose Director contained
herein:
(1) The Corporation shall give to the Special Purpose
Director notice of each meeting of the Board of Directors of
the Corporation at the same time and in the same manner as
notice is given to the other directors;
(2) The Special Purpose Director shall be entitled to
attend in person all meetings held in person and to
participate in telephone or other meetings of the Board of
Directors of the Corporation;
(3) The Corporation shall provide to the Special
Purpose Director in connection with each meeting of the Board
of Directors (whether in person or otherwise), copies of all
notices, minutes, consents, and all other materials or
information that the Corporation provides to the other
directors of the Corporation with respect to such meeting or
otherwise, at the same time such materials and information are
given to the other directors of the Corporation (except that
materials and information provided to other directors at
meetings of the Board of Directors of the Corporation at which
the Special Purpose Director is not present shall be provided
to him or her promptly after the meetings);
(4) If the Board of Directors proposes to take any
action by written consent in lieu of a meeting, the
Corporation shall give written notice thereof to the Special
Purpose Director prior to the effective date of such consent
describing in reasonable detail the nature and substance of
such action; and
(5) Except as otherwise provided herein, the Special
Purpose Director shall otherwise enjoy all rights, privileges
and benefits conferred upon directors of the Corporation by
the Certificate of Incorporation, the By-Laws of the
Corporation or by law, including, without limitation, with
respect to indemnification and advancement of expenses.
(c) Removal and Vacancy. The Special Purpose Director
may be removed without cause only by the holders of the then
outstanding shares of Class A Preferred Stock. Any vacancy in the
position of Special Purpose Director shall be filled only by the
holders of the then outstanding shares of Class A Preferred Stock. The
Special Purpose Director shall be paid $100 per year by the Corporation
for his services.
(d) No Additional Voting Rights. Except as otherwise
expressly provided herein or as required by law, holders of shares of
Class A Preferred Stock shall not have any voting rights.
(e) Amendments Affecting Class A Preferred Stock. So
long as any shares of Class A Preferred Stock are outstanding, the
written consent or the affirmative vote at a meeting called for that
purpose of the holders of a majority of the votes of the shares of
Class A Preferred Stock then outstanding, voting separately as a class,
shall be necessary to validate or effectuate any amendment, alteration
or repeal of the Certificate of Incorporation of the Corporation so as
to affect adversely the powers, preferences or special rights of such
Class A Preferred Stock.
(vi) Redemption by Corporation.
(a) The Corporation shall have the right, commencing
on the date that is three years following the date that the
Corporation's obligations to NPM Capital LLC and its affiliates are
satisfied in full, to redeem out of funds legally available therefor
all or any part of the shares of Class A Preferred Stock at its
election expressed by resolution of the Board of Directors of the
Corporation, upon not less than thirty (30) days' prior notice to
the holders of record of the Class A Preferred Stock to be redeemed,
given by mail, at the Redemption Price (as hereinafter defined) on
the Redemption Date (as hereinafter defined).
(b) The "Redemption Date" shall be the date fixed for
redemption in the notice of redemption.
(c) The price at which outstanding shares of Class A
Preferred Stock shall be redeemed pursuant to subsection (vi)(a)
shall be $10.00 per share (the "Redemption Price").
(d) If less than all outstanding Class A Preferred
Stock is to be redeemed, the redemption may be made either pro rata
or by lot or in some other equitable manner as may be prescribed by
resolution of the Board of Directors.
(e) Any notice of redemption mailed to a holder of
Class A Preferred Stock at his or her address as the same shall
appear on the books of the Corporation shall be conclusively
presumed to have been given whether or not the holder receives the
notice. Each such notice shall state: the Redemption Date; the
number of shares of Class A Preferred Stock to be redeemed and, if
less than all shares of Class A Preferred Stock held by such holder
are to be redeemed, the number of such shares to be redeemed from
him or her and the fact that a new certificate or certificates
representing any unredeemed shares shall be issued without cost to
such holder; the Redemption Price applicable to the shares to be
redeemed; and the place or places where such shares are to be
surrendered. No defect in any such notice to any holder of Class A
Preferred Stock shall affect the validity of the proceedings for the
redemption of any other shares of such Class A Preferred Stock.
(f) From and after the Redemption Date, all rights of
the holders of shares of Class A Preferred Stock as stockholders of the
Corporation, except the right to receive the Redemption Price, shall
terminate. Any moneys set aside by the Corporation on account of the
Redemption Price and unclaimed by the end of three years from the
Redemption Date shall revert to the general funds of the Corporation.
(g) Any shares of Class A Preferred Stock redeemed
pursuant to the provisions of this subsection (vi) shall be retired and
given the status of authorized and unissued preferred stock,
undesignated as to series, and subject to reissuance by the Corporation
as shares of Preferred Stock of one or more series, as may be
determined from time to time by the Board of Directors of the
Corporation.
(h) No shares of Class A Preferred Stock shall be
redeemed in whole or in part under this subsection (vi): (1) at any
time that such redemption is prohibited by the DGCL;(2) at any time
that the terms and provisions of any contract or other agreement of the
Corporation or any of its directly or indirectly owned subsidiaries
specifically prohibits such redemption or provides that such redemption
would constitute a breach thereof or a default thereunder; (3) unless,
prior to or concurrently with such redemption, all unpaid dividends on
all Senior Securities for periods preceding or ending on the Redemption
Date have been paid in full or have been declared and set aside for
payment in full; or (4) at any time that the Corporation shall be in
default in respect of any redemption obligations on or under Senior
Securities.
(vii) No Conversion Rights. The holders of shares of
Class A Preferred Stock shall not have any rights to convert such
shares into shares of any other class or series of capital stock
or into any other securities of, or any other interest in, the
Corporation.
(viii) No Sinking Fund. No sinking fund shall be
established for the payment of dividends on shares of Class A
Preferred Stock, if any, or the liquidation of shares of Class A
Preferred Stock.
(ix) No Preemptive or Subscription Rights. No holder
of shares of Class A Preferred Stock shall have any preemptive or
subscription rights in respect of any securities of the
Corporation that may be issued.
(x) No Other Rights. The shares of Class A Preferred
Stock shall not have any designations, preferences or relative,
participating, optional or other special rights except as
expressly set forth in this Article FOURTH of the Certificate of
Incorporation of the Corporation or as otherwise required by law.
(xi) Legend. All certificates for shares of Class A
Preferred Stock issued by the Corporation shall conspicuously bear
the following legend:
"The Corporation will furnish without charge to the holder of
record of this certificate a copy of the Certificate of
Incorporation of the Corporation, containing the powers,
designations, preferences and relative, participating,
optional or other special rights of each class of stock of the
Corporation or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights,
upon written request to the Corporation at its principal place
of business."
C. Provisions Relating to the Preferred Stock. Shares
of Preferred Stock may be issued from time to time in one or more
series, and the Board of Directors of the Corporation is hereby
authorized, subject to the limitations provided by law, to establish
and designate one or more series of Preferred Stock, to fix the number
of shares constituting each series, and to fix the designation, powers,
preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, of
each series and the variations and the relative rights, preferences and
limitations as between series, and to increase and to decrease the
number of shares constituting each series (in each case subject to the
rights of the holders of the Common Stock and Series A Preferred Stock
set forth above). The authority of the Board of Directors of the
Corporation with respect to each series shall include, but shall not be
limited to, the authority to determine the following:
(i) The designation of such series, which may be by distinguishing
number or letter;
(ii) The number of shares initially constituting such series;
(iii) The increase, and the decrease to a number not less than
the number of the then outstanding shares of such series, of the
number of shares constituting such series theretofore fixed;
(iv) The rate or rates, and the conditions upon and the times at
which dividends on the shares of such series shall be paid, the
preference or relation which such dividends shall bear to the dividends
payable on any other class or classes or on any other series of stock
of the Corporation, and whether or not such dividends shall be
cumulative, and, if such dividends shall be cumulative, the date or
dates from and after which they shall accumulate;
(v) Whether or not the shares of such series shall be redeemable
and, if such shares shall be redeemable, the terms and conditions of
such redemption, including, but not limited to, the date or dates upon
or after which such shares shall be redeemable and the amount per share
which shall be payable upon such redemption, which amount may vary
under different conditions and at different redemption dates;
(vi) The rights to which the holders of the shares of such series
shall be entitled upon the voluntary or involuntary liquidation,
dissolution or winding up of, or upon any distribution of the assets
of, the Corporation, which rights may be different in the case of a
voluntary liquidation, dissolution or winding up than in the case of
such an involuntary event;
(vii) Whether or not the shares of such series shall have
voting rights, in addition to the voting rights provided by law and,
if such shares shall have such voting rights, the terms and
conditions thereof, including, but not limited to, the right of the
holders of such shares to vote as a separate class either alone or
with the holders of shares of one or more other series of Preferred
Stock and the right to have more than one vote per share;
(viii) Whether or not a sinking or a purchase fund shall be provided
for the redemption or purchase of the shares of such series and, if
such a sinking fund or purchase fund shall be provided, the terms and
conditions thereof;
(ix) Whether or not the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or any
other series of the same or any other class or classes of stock or any
other security of the Corporation or any other entity and, if provision
be made for conversion or exchange, the terms and conditions of
conversion or exchange, including, but not limited to, any provision
for the adjustment of the conversion or exchange rate or price; and
(x) Any other relative rights, preferences and
limitations."
***
Article SIXTH of the Certificate of Incorporation of the
Corporation is hereby deleted and replaced in its entirety to read as follows:
"SIXTH: Directors and By-Laws. In furtherance and not in
limitation of the powers conferred by law, subject to any limitations
contained elsewhere in this Certificate of Incorporation, By-laws of
the Corporation may be adopted, amended or repealed by the Board of
Directors of the Corporation, provided that any By-laws adopted by the
Board of Directors may be amended or repealed by the stockholders
entitled to vote thereon."
***
Article ELEVENTH of the Certificate of Incorporation of the
Corporation is hereby deleted and replaced in its entirety to read as follows:
"ELEVENTH: Limitation on Transfer of Shares. Except as
expressly provided below in this Article ELEVENTH, shares of capital stock
of the Corporation are fully and freely transferable.
A. Certain Transfers Prohibited.
(i) Until September 30, 2009 (the "Restriction
Period"), no individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity, as well as any
syndicate or group deemed to be a person under Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended (each a "Person"), who (i)
purports to purchase or acquire any shares of capital stock of the
Corporation from the Corporation by the exercise of a warrant or option
or otherwise or (ii) beneficially owns directly or through attribution
(as determined under Section 382 of the Internal Revenue Code of 1986,
as amended (the "Code")) five percent or more of the value of the
outstanding shares of capital stock of the Corporation or who, upon the
acquisition of any shares of capital stock of the Corporation, would
beneficially own directly or through attribution (as determined under
Code Section 382) five percent or more of the value of the outstanding
shares of capital stock of the Corporation (each such Person described
in (i) or (ii) above being a "Restricted Holder"), shall sell,
transfer, or dispose, or purchase or acquire in any manner whatsoever,
whether voluntarily or involuntarily, by operation of law or otherwise
(any such sale, transfer, disposition, purchase, acquisition or
contract being a "Transfer"), any shares of capital stock of the
Corporation or any option, warrant or other right to purchase or
acquire capital stock of the corporation (such warrant, option or
security being an "Option") or any securities convertible into or
exchangeable for capital stock of the Corporation, except as authorized
pursuant to this Article ELEVENTH. For purposes of this Article
ELEVENTH, "capital stock" shall include the Common Stock, the Class A
Preferred Stock and the Preferred Stock of the Corporation and any
Option. Notwithstanding the preceding sentence, for purposes of
determining whether a Person owns five percent or more of the value of
the outstanding shares of capital stock of the Corporation, Options
shall be taken into account to the extent taking such Options into
account would cause a Person to become a Restricted Holder.
Notwithstanding the provisions of this clause (i), nothing herein shall
prohibit the acquisition by NPM Capital LLC, a Delaware limited
liability company, and its affiliates, including NPO Holdings LLC, a
Delaware limited liability company, of 1,000,000 shares of the
Corporation's Common Stock pursuant to the terms of that certain Stock
Purchase Agreement dated as of March 27, 1996 between the Corporation
and NPO Holdings LLC.
(ii) The restrictions contained in this Article
ELEVENTH are for the purpose of reducing the risk that any change in
stock ownership may jeopardize the preservation of the Corporation's
federal income tax attributes. In connection therewith, and to provide
for the effective policing of these provisions, a Restricted Holder who
proposes to Transfer shares of capital stock shall, prior to the date
of the proposed Transfer, request in writing (a "Request") that the
Board of Directors of the Corporation review the proposed Transfer and
authorize or not authorize the proposed Transfer pursuant to subsection
C hereof. A Request a shall be mailed or delivered to the President of
the Corporation at the Corporation's principal place of business or
telecopied to the Corporation's telecopier number at its principal
place of business. Such Request shall be deemed to have been delivered
when actually received by the Corporation. A Request shall include (a)
the name, address and telephone number of the Restricted Holder, (b) a
description of the shares of capital stock proposed to be Transferred
by or to the Restricted
Holder, (c) the date on which the proposed Transfer is expected to take
place, (d) the name of the proposed transferor and transferee of the
capital stock to be transferred by or to the Restricted Holder, and (e)
a Request that the Board of Directors authorize, if appropriate, the
Transfer pursuant to subsection C hereof and inform the Restricted
Holder of its determination regarding the proposed Transfer. If the
Restricted Holder seeks to sell or dispose of shares of capital stock,
then, within five business days of receipt by the President of a
Request, a meeting of the Board of Directors shall be held to determine
whether to authorize the proposed Transfer described in the Request
under subsection C hereof. If the Restricted Holder seeks to purchase
or acquire shares of capital stock, at the next regularly scheduled
meeting of the Board of Directors following the fifth business day
after receipt by the President of a Request, the Board of Directors
will meet to determine whether to authorize the proposed Transfer
described in the Request under subsection C hereof. The Board of
Directors shall conclusively determine whether to authorize the
proposed Transfer, in its sole discretion and judgment, and shall
immediately cause the Restricted Holder making the Request to be
informed of such determination.
B. Effect of Unauthorized Transfer. Any Transfer attempted to
be made in violation of this Article ELEVENTH will be null and void. In
the event of an attempted or purported Transfer involving a sale or
disposition of capital stock in violation of this Article ELEVENTH the
Restricted Holder shall remain the owner of such shares. In the event
of an attempted or purported Transfer involving the purchase or
acquisition by a Restricted Holder in violation of this Article
ELEVENTH, the Corporation shall be deemed to be the exclusive and
irrevocable agent for the transferor of such capital stock. The
Corporation shall be such agent for the limited purpose of consummating
a sale of such shares to a Person who is not a Restricted Holder (an
"eligible transferee"), which may include, without limitation, the
transferor. The record ownership of the subject shares shall remain in
the name of the transferor until the shares have been sold by the
Corporation or its assignee, as agent, to an eligible transferee. The
Corporation shall be entitled to assign its agency hereunder to any
person or entity including, but not limited to, the intended transferee
of the shares, for the purpose of effecting a permitted sale of such
shares. Neither the Corporation, as agent, nor any assignee of its
agency hereunder, shall be deemed to be a stockholder of the
Corporation nor be entitled to any rights of a stockholder of the
Corporation, including, but not limited to, any right to vote such
capital stock or to receive dividends or liquidating distributions in
respect thereof, if any, but the Corporation or its assignee shall only
have the right to sell and transfer such shares on behalf of and as
agent for the transferor to another person or entity; provided,
however, that a Transfer to such other person or entity does not
violate the provisions of this Article ELEVENTH. The rights to vote and
to receive dividends and liquidating distributions with respect to such
shares shall remain with the transferor. The intended transferee shall
not be entitled to any rights of stockholders of the Corporation,
including, but not limited to, the rights to vote or to receive
dividends and liquidating distributions with respect to such shares. In
the event of a permitted sale and transfer, whether by the Corporation
or its assignee, as agent, the proceeds to such sale shall be applied
first to reimburse the Corporation or its assignee for any expenses
incurred by the Corporation acting in its role as the agent for the
sale of such shares, second to the extent of any remaining proceeds, to
reimburse the intended transferee for any payments made to the
transferor by such intended transferee for such shares, and the
reminder, if any, to the original transferor.
C. Authorization of Transfer of Capital Stock by a Restricted
Holder. The Board of Directors shall authorize a Transfer by a
Restricted Holder or to a Restricted Holder, if, in its sole discretion
and judgment, it determines that the Transfer will not jeopardize the
Corporation's preservation of its federal income tax attributes
pursuant to Code Section 382. In deciding whether to approve any
proposed Transfer of capital stock by or to a Restricted Holder, the
Board of Directors may seek the advice of counsel with respect to the
Corporation's preservation of its federal income tax attributes
pursuant to Code Section 382 and may request all relevant information
from the Restricted Holder with respect to all capital stock directly
or indirectly owned by such Restricted Holder. Any Person who makes a
Request of the Board of Directors pursuant to this subsection C to
Transfer shares of capital stock shall reimburse the Corporation, on
demand, for all costs and expenses incurred by the Corporation with
respect to any proposed Transfer of capital stock, including, without
limitation, the Corporation's costs and expenses incurred in
determining whether to authorize that proposed Transfer.
D. Legend on Certificates. All certificates for shares of
capital stock issued by the Corporation shall conspicuously bear the
following legend:
"Each of the Certificate of Incorporation (the "Certificate") and
the By-laws (the "By- laws") of the Corporation contains
restrictions prohibiting the sale, transfer, disposition, purchase
or acquisition of any capital stock until September 30, 2009,
without the authorization of the Board of Directors of the
Corporation (the "Board of Directors"), by or to any holder (a) who
beneficially owns directly or through attribution (as generally
determined under Section 382 of the Internal Revenue Code of 1986,
as amended (the "Code")) five percent or more of the value of the
then issued and outstanding shares of capital stock of the
Corporation or (b) who, upon the sale, transfer, disposition,
purchase or acquisition of any capital stock of the Corporation
would beneficially own directly or through attribution (as generally
determined under Section 382 of the Code) five percent or more of
the value of the then issued and outstanding capital stock of the
Corporation, it that sale, transfer, disposition, purchase or
acquisition would, in the sole discretion and judgment of the Board
of Directors, jeopardize the Corporation's preservation of its
federal income tax attributes pursuant to Section 382 of the Code.
The Corporation will furnish without charge to the holder of record
of this certificate a copy of the Certificate and/or By- laws,
containing the above-referenced restrictions on transfer of stock,
upon written request to the Corporation at its principal place of
business."
A new Article TWELTH is hereby added to the Certificate of
Incorporation of the Corporation to read as follows:
"TWELTH: Indemnification. Each person who is or was or had
agreed to become a director or officer of the Corporation, or each such
person who is or was serving or who had agreed to serve at the request of
the Board of Directors or an officer of the Corporation as an employee or
agent of the Corporation or as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise (including the heirs, executors, administrators or estate of
such person), shall be indemnified by the Corporation to the full extent
permitted from time to time by the General Corporation Law of the State
of Delaware as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such amendment) or
any other applicable statutory or decisional laws as currently or
hereafter in effect. Without limiting the generality or the effect of the
foregoing, the Corporation may enter into one or more agreements with any
person or adopt provisions or policies pursuant to the By-laws of the
Corporation or otherwise which provide for indemnification greater or
different than that provided in this Article TWELTH. Any amendment or
repeal of this Article TWELTH shall not adversely affect any right or
protection existing hereunder immediately prior to such amendment or
repeal."
A new Article THIRTEENTH is hereby added to the Certificate of
Incorporation of the Corporation to read as follows:
"THIRTEENTH: Limited Liability. A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of the State
of Delaware, as the same exists or may hereafter be amended, or (iv) for
any transaction from which the director derived an improper personal
benefit. Any amendment or repeal of this Article THIRTEENTH shall not
adversely affect any right or protection of a director of the Corporation
existing immediately prior to such amendment or repeal."
THIRD: The amendments set forth herein were duly adopted pursuant to
Sections 222 and 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this certificate
this 7th day of February, 2000.
DVL, INC.
/s/ Jay Thailer
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Jay Thailer, Secretary