Exhibit 3M
THIRD AMENDMENT
TO THE BY-LAWS
OF
DVL, INC.
(formerly known as Del-Val Financial Corporation, Inc.)
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FIRST: Articles II, III and VIII of
the By-laws of the Corporation are hereby deleted.
SECOND: Sections 11.1, 11.2 and 11.3 of
the By-laws of the Corporation are hereby deleted.
THIRD: Article XII of the By-laws of
the Corporation is hereby deleted and replaced in its entirety to read as
follows:
"ARTICLE XII
Limitation on Transfer of Shares
Section 12.1 Limitation on Transfer of Shares. Except as
expressly provided below in this ARTICLE XII, shares of capital stock of
the Corporation are fully and freely transferable.
Section 12.2 Certain Transfers Prohibited.
(a) 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 XII. For purposes of this
ARTICLE XII, "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 (a),
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.
(b) The restrictions contained in this ARTICLE XII 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 Section 12.4 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 Section 12.4 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
Section 12.4 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 Section 12.4 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.
Section 12.3 Effect of Unauthorized Transfer. Any Transfer
attempted to be made in violation of this ARTICLE XII 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 XII, 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 XII, 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 XII. 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.
Section 12.4 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 Section 12.4 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.
Section 12.5 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."