Exhibit 3.1
AMENDED
CERTIFICATE OF DESIGNATION
OF
SERIES E PREFERRED STOCK
OF
DIPLOMAT DIRECT MARKETING CORPORATION
DIPLOMAT DIRECT MARKETING CORPORATION, a corporation organized
and existing under the laws of the State of Delaware, hereby certifies as
follows:
1. The name of the corporation is Diplomat Direct Marketing
Corporation. The date of filing of its original Certificate of Designation to
which this certificate relates was December 17, 1997.
2. The Amended Certificate of Designation of Series E
Preferred Stock only amends the certificate as follows:
Deleting Section 1 which previously read as follows:
1. Designation. The shares of the Series shares shall
be designated "Series E Preferred Stock", and the number of shares
constituting the Series shall be 3,480.
Adding new Section 2 to read as follows:
1. Designation. The shares of the Series shall be
designated "Series E Preferred Stock", and the number of shares
constituting the Series shall be 3,705.
3. The text of the Certification of Designation of Series E
Preferred Stock as amended hereby reads as follows:
1. Designation. The shares of the Series shall be
designated "Series E Preferred Stock", and the number of shares
constituting the Series shall be 3,705.
2. Dividends. Holders of the Series E Preferred Stock
(the "Holders") shall be entitled to an annual cumulative dividend of
six percent (6%) of the Liquidation Value of the Series E Preferred
Stock for a period of three years commencing on the date of issuance,
and twelve percent (12%) thereafter, all dividends being payable
annually in arrears. Dividends will be payable in cash or, at the
option of the Company, in Common Stock. Dividends payable for any
period less than a full year, will be computed on the basis of a 360
day year with equal months of 30 days.
3. Liquidation.
(a) Liquidation Preference. Upon any
liquidation, dissolution, or winding up of the
Corporation, whether voluntary or
involuntary, and after provision for the payment of
creditors, the Holders shall be entitled to be paid
an amount equal to $1000.00 per share ("Liquidation
Value") of Series E Preferred Stock held, before any
distribution or payment is made upon any shares of
Common Stock and any other series of stock junior to
the Series E Preferred Stock but subject to the prior
preferences of any series or class of stock of the
Corporation senior to the Series E Preferred Stock.
(b) Ratable Distribution. If upon any
liquidation, dissolution or winding up of the
Corporation, the net assets of the Corporation to be
distributed among the Holders shall be insufficient
to permit payment in full to the Holders of such
Series E Preferred Stock, then all remaining net
assets of the Corporation after the provision for the
payment of the Corporation's debts and distribution
to any senior stockholders shall be distributed
ratably in proportion to the full amounts to which
they would otherwise be entitled to receive among the
Holders.
(c) Corporate Changes. The sale, lease or
exchange of all or substantially all of the
Corporation's assets or the merger or consolidation
of the Corporation which results in the holders of
Common Stock of the Corporation receiving in exchange
for such Common Stock cash, notes, debentures or
other evidences of indebtedness or obligations to pay
cash, or preferred stock of the surviving entity
which ranks on a parity with or senior to the Series
E Preferred Stock as to dividends or upon
liquidation, dissolution or winding-up shall be
deemed to be a liquidation, dissolution or winding up
of the affairs of the Corporation within the meaning
of this Section 3(c). In the case of mergers or
consolidations of the Corporation where holders of
Common Stock of the Corporation receive, in exchange
for such Common Stock, common stock or preferred
stock in the surviving entity (whether or not the
surviving entity is the Corporation) of such merger
or consolidation, or common stock or preferred stock
of another entity (in either case, such preferred
stock to be received in exchange for common stock is
herein referred to as "Exchanged Preferred Stock"),
which is junior as to dividends and upon liquidation,
dissolution or winding up to the Series E Preferred
Stock, the merger agreement or consolidation
agreement shall expressly provide that the Series E
Preferred Stock shall become preferred stock of such
surviving entity or other entity, as the case may be,
with the same annual dividend rate and equivalent
rights to the rights set forth herein; provided
however that if the Exchanged Preferred Stock is to
be mandatorily redeemed in whole
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or in part through the operation of a sinking fund or
otherwise the merger or consolidation agreement shall
expressly provide that, or other provisions shall be
made so that, all shares of the Series E Preferred
Stock shall be mandatorily redeemed prior to the
first mandatory redemption of the Exchanged Preferred
Stock; and provided further, that in the event the
Corporation or an affiliate of the Corporation
optionally redeems or otherwise acquires any or all
of the then outstanding shares of Exchanged Preferred
Stock, the Corporation shall redeem all shares of
Series E Preferred Stock. In the event of a merger or
consolidation of the Corporation where the
consideration received by the holders of common stock
consists of two or more types of the consideration
set forth above, the holders of the Series E
Preferred Stock shall be entitled to receive either
cash or securities based upon the foregoing in the
same proportion as the holders of common stock of the
Corporation are receiving cash or debt securities, or
equity securities in the surviving entity or other
entity.
4. Redemption. The Company may at any time it may
lawfully do so, redeem in whole or in part the Series E Preferred Stock
by paying in cash therefore a sum equal to $1,000 per share of Series E
Preferred Stock (as adjusted for any stock dividends, combinations or
splits with respect to such shares) plus all unpaid dividends on such
shares ("Redemption Price").
5. Voting Rights. Except as required under Delaware
law, the Holders shall not have any right or power to vote on any
question or in any proceeding or to be represented at or to receive
notice of any proceeding or meeting of the stockholders.
6. Conversion Rights. The Series E Preferred Stock
shall not be convertible into Common Stock.
7. No Preemptive Rights. No holders of Series E
Preferred Stock, whether now or hereafter authorized, shall, as such
holder, have any preemptive right whatsoever to purchase, subscribe for
or otherwise acquire, stock of any class of the Corporation nor of any
security convertible into, nor of any warrant, option or right to
purchase, subscribe for or otherwise acquire, stock of any class of the
Corporation, whether now or hereafter authorized.
8. Exclusion of Other Rights. Except as may otherwise
be required by law, the shares of Series E Preferred Stock shall not
have any preferences or relative, participating, optional or other
special rights, other than those specifically set forth in this
resolution (as such resolution may be amended from time to time) and in
the Corporation's Certificate of Incorporation. The Shares of Series E
Preferred Stock shall have no
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preemptive or subscription rights.
9. Headings of Subdivisions. The headings of the
various subdivisions hereof are for convenience of reference only and
shall not affect the interpretation of any of the provisions hereof.
10. Severability of Provisions. If any right,
preference or limitation of the Preferred Stock set forth in this
Certificate (as such Certificate may be amended from time to time) is
invalid, unlawful or incapable of being enforced by reason of any rule
of law or public policy, all other rights, preferences and limitations
set forth in this Certificate (as so amended) which can be given effect
without the invalid, unlawful or unenforceable right, preference or
limitation shall, nevertheless, remain in full force and effect, and no
right, preference or limitation herein set forth shall be deemed
dependent upon any other such right, preference or limitation unless so
expressed herein.
11. Status of Reacquired Shares. Shares of Series E
Preferred Stock which have been issued and reacquired in any manner
shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued
shares of Series E Preferred Stock issuable in series undesignated as
to series and may be redesignated and reissued
4. The Amended Certificate of Designation was duly adopted by
the unanimous written consent of the board of directors of the corporation on
March 8, 1999, in accordance Section 151 of the Delaware General Corporation
Law.
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IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed in its name and on its behalf by its President and
attested to this day of April, 1999.
DIPLOMAT DIRECT MARKETING
CORPORATION
By:______________________________
Jonathan Rosenberg
President
ATTESTED
_______________________________
Stuart A. Leiderman, Secretary
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