1
FOR OFFICE USE ONLY
MAIL TO: SECRETARY OF STATE
CORPORATIONS SECTION
1560 BROADWAY, SUITE 200
DENVER, CO 80202
(303) 894-2251
(303) 894-2242
MUST BE TYPED
FILING FEE: $25.00
MUST SUBMIT TWO COPIES
ARTICLES OF AMENDMENT
PLEASE INCLUDE A TYPED TO THE
SELF-ADDRESSED ENVELOPE ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is EPL Technologies, Inc.
----------------------------------------
SECOND: the following amendment to the Articles of Incorporation was adopted on
July 21, 1997, as prescribed by the Colorado Business Corporation Act,
- - -------------
in the manner marked with an X below:
No shares have been issued or Directors Elected - Action by Incorporators
- - ---
No shares have been issued but Directors Elected - Action by Directors
- - ---
Such amendment was adopted by the board of directors where shares have been
- - --- issued.
X Such amendment was adopted by a vote of the shareholders. The number of
- - --- shares voted for the amendment was sufficient for approval.
See Exhibit A
THIRD: The manner, if not set forth in such amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the amendment
shall be effected, is as follows:
If these amendments are to have a delayed effective date, please list that date: n/a
(Not to exceed ninety (90) days from the date of filing) ----------------------------
----------------------------
By /s/ Timothy B. Owen
----------------------------
Its Secretary and Treasurer
----------------------------
(Title)
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EXHIBIT A
RESOLVED, that Paragraph A. of Article V of the Articles of Incorporation of the
Company be amended and restated to read in its entirety as follows:
The Corporation shall have the authority to issue fifty million
(50,000,000) shares of common stock with a par value $0.001 per share,
three million two hundred fifty thousand (3,250,000) shares of Series A
10% Cumulative Convertible Preferred Stock with a par value of $1.00
per share ("Series A Preferred Stock"), 531,915 shares of Series B 10%
Cumulative Convertible Preferred Stock with a par value of $0.01 per
share ("Series B Preferred Stock"), 144,444 shares of Series C
Convertible Preferred Stock with a par value of $0.01 per share
("Series C Preferred Stock") and three million, three hundred
twenty-three thousand, six hundred forty-one (3,323,641) shares of
preferred stock with a par value of $0.01 per share ("Board Designated
Preferred Stock"). The Board of Directors of the Corporation may
determine, in whole or in part, the preferences, limitations, and
relative rights of the Board Designated Preferred Stock, within the
limits set forth in Section 7-106-101 of the Colorado Business
Corporation Act, of any class of the Board Designated Preferred Stock,
before the issuance of any shares of that class, or one or more series
within a class of the Board Designated Preferred Stock before the
issuance of any shares of that series. The Board of Directors may
issue, in one or more classes or series, shares of the Board Designated
Preferred Stock with full, limited, multiple, fractional or no voting
rights, and with such designations, preferences, qualifications,
privileges, limitations, restrictions, options, conversion rights, or
other special or relative rights as shall be fixed from time to time by
the Board of Directors, except for and subject to, in each case, the
limits set forth in Section 7-106-101 of the Colorado Business
Corporation Act and in accordance with the provisions and requirements
of Section 7-106-102 of the Colorado Business Corporation Act.
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EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
EPL TECHNOLOGIES, INC.
Pursuant to the provisions of the Colorado Business Corporation Act,
the undersigned corporation (the "Corporation") adopts the following Amended
and Restated Articles of Incorporation. The Corporation certifies as follows:
FIRST: The name of the Corporation is EPL Technologies, Inc.
SECOND: Paragraph A of Article V of the Articles of Incorporation has been
amended to read as it appears below. The amendment was adopted on
July 22, 1996 by a vote of the shareholders. The number of shares
voted for the amendment was sufficient for approval.
THIRD: The following restatement of the Articles of Incorporation was adopted
on July 22, 1996 by the Board of Directors of the Corporation without
shareholder action, as shareholder action was not required for such
restatement.
FOURTH: The following articles correctly set forth the provisions of the
Articles of Incorporation, as amended, and supersede the original
Articles of Incorporation and all amendments thereto:
ARTICLE I
The name of the Corporation is EPL Technologies, Inc.
ARTICLE II
The period of duration of the Corporation shall be perpetual.
ARTICLE III
The purposes for which the Corporation is organized are: The
transaction of all lawful business for which corporations may be incorporated
pursuant to the laws of the State of Colorado, whether acting singly or in
conjunction with any other person or entity.
ARTICLE IV
In furtherance of the purposes set forth in Article III of these
Articles of Incorporation, the Corporation shall have and may exercise all of
the rights, powers, and privileges now or hereafter conferred upon corporations
organized under and pursuant to the laws of the State of Colorado.
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ARTICLE V
A. Authorized Shares. The Corporation shall have the authority to issue
fifty million (50,000,000) shares of common stock with a par value $0.001 per
share, three million two hundred fifty thousand (3,250,000) shares of Series A
10% Cumulative Convertible Preferred Stock with a par value of $1.00 per share
("Series A Preferred Stock") and two million (2,000,000) shares of preferred
stock with a par value of $.01 per share ("Board Designated Preferred Stock").
The Board of Directors of the Corporation may determine, in whole or in part,
the preferences, limitations, and relative rights of the Board Designated
Preferred Stock, within the limits set forth in Section 7-106-101 of the
Colorado Business Corporation Act, of any class of the Board Designated
Preferred Stock, before the issuance of any shares of that class, or one or
more series within a class of the Board Designated Preferred Stock before the
issuance of any shares of that series. The Board of Directors may issue, in one
or more classes or series, shares of the Board Designated Preferred Stock with
full, limited, multiple, fractional or no voting rights, and with such
designations, preferences, qualifications, privileges, limitations,
restrictions, options, conversion rights, or other special or relative rights
as shall be fixed from time to time by the Board of Directors, except for and
subject to, in each case, the limits set forth in Section 7-106-101 of the
Colorado Business Corporation Act and in accordance with the provisions and
requirements of Section 7-106-102 of the Colorado Business Corporation Act.
B. Transfer Restrictions. The Corporation shall have the right, by
appropriate action, to impose restrictions upon the transfer of any shares of
its stock or any interest therein, from time to time provided that any
restrictions imposed, or notice of the substance thereof, shall be set forth
upon the face or back of the Certificates representing the Corporation's shares
of stock.
C. Preemptive Rights. The holders of the shares of the common stock of
the Corporation shall not be entitled, as of right, to purchase or subscribe
for any unissued or treasury stock of any class, or any additional stock of any
class to be issued by reason of any increase of the authorized shares of the
Corporation of any class, or any bonds, certificates of indebtedness,
debenture, or other securities, rights, warrants or options convertible into
shares of the Corporation or carrying any right to purchase shares of any class
in accordance with their proportionate equity in the Corporation.
D. Cumulative Voting. The cumulative system of voting for Directors or
for any other purpose shall not be allowed.
E. Series A Preferred Stock. The terms, preferences and relative,
participating, optional or other special rights of the Series A Preferred Stock
and the limitations and restrictions thereof are as follows:
Dividend Rights. Holders of the Series A Preferred Stock are entitled to
dividends at the rate of 10% per annum of the par value of the stock. At
the option of the Corporation, these dividends may be paid either in
cash or in common stock. If the dividends are paid in common stock, the
common stock will be valued at the conversion price, which is $0.75 per
share (subject to adjustment for stock splits, stock dividends, the
effect of mergers and the like). If the dividends are not paid, the
right to receive unpaid dividends will accumulate, but without interest.
No dividends may be paid on
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the common stock at a time when payment of dividends on the Series A
Preferred Stock is in arrears.
Terms of Conversion. Each share of Series A Preferred Stock may be
converted into that number of full shares of common stock of the
Corporation determined by dividing $1.00 by the Conversion Price of $0.75
per share (subject to adjustment for stock splits, stock dividends, the
effect of mergers and the like). Conversion may be elected by the holder of
the Series A Preferred Stock at any time prior to payment of a distribution
in liquidation with respect to the Series A Preferred Stock. Payment in
cash will be made in lieu of issuance of fractional shares.
Voting Rights. Each holder of Series A Preferred Stock is entitled to the
number of votes equal to the number of whole shares of common stock into
which the shares of Series A Preferred Stock are convertible. Except when
voting by class or series is required by law or the Articles of
Incorporation, holders of the Series A Preferred Stock shall vote together
with the holders of the common stock as a single class.
Liquidation Rights. In the event of a liquidation, dissolution or winding
up of the Corporation, the holders of shares of Series A Preferred Stock
are entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders $1.00 per share (subject to adjustment for
stock splits, stock dividends, the effect of mergers and the like affecting
the Series A Preferred Stock). This payment shall be made in full by the
Corporation prior to any payment being made to the holders of the common
stock.
No Other Rights. The Series A Preferred Stock will not have the benefit of
any sinking fund provisions, any redemption provisions, any preemptive
rights to subscribe to any additional shares of any class or series of the
Corporation's stock, or any liability to further calls or assessments. The
Series A Preferred Stock will not have any right to elect a separate class
of Directors of the Corporation. There is no restriction on the repurchase
or redemption of any shares of the Corporation while there is any arrearage
in the payment of dividends on the Series A Preferred Stock.
F. Indemnification. The Corporation shall, to the fullest extent permitted
by law, indemnify Incorporators, Directors, Officers, employees, fiduciaries,
agents, consultants or other parties whom it shall have power to indemnify from
and against any expenses (including attorney's fees), liabilities, claims or
other matters arising by reason of the person's relationship with the
Corporation. The Corporation may obtain and pay for insurance for that purpose.
The indemnification provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under these Articles or
any Bylaw, agreement, vote of shareholders, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office. This indemnification shall continue as to a person who has terminated
his position for actions occurring during the period of his relationship with
the Corporation, and shall inure to the benefit of the heirs, executors,
personal representatives, and administrators of such a person.
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ARTICLE VI
The Board of Directors of the Corporation shall consist of not less
than three (3) nor more then seven (7) directors, as set forth in the Bylaws
of the Corporation, who need not be shareholders of the Corporation or
residents of the State of Colorado.
ARTICLE VII
No contract or other transaction between the Corporation and one or
more of its Directors, Officers, agents or employees or any other corporation,
firm, association or entity in which one or more of its Directors, Officers,
agents or employees are directors or officers or are financially interested in
shall be either void or voidable because of such relationship or interest, or
because such Directors or Officers are present at a meeting of the Board of
Directors or a Committee thereof which authorizes, approves or ratifies such
contract or transaction, or because their votes were counted for such purpose
if:
A. The fact of such relationship or interest is disclosed or known
to the Board of Directors or Committee which authorizes, approves or ratifies
the contract or transaction by a majority vote of uninterested directors; or
B. The fact of such relationship or interest is disclosed or known
to the shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent; or
C. The contract or transaction is fair and reasonable to the
Corporation.
Interested Directors or Officers may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
ARTICLE VIII
In addition to the other powers now or hereafter conferred upon the
Board of Directors by these Articles of Incorporation, the Bylaws of the
Corporation, or by the law of Colorado, the Board of Directors may from time to
time distribute to the shareholders in partial liquidation, out of the stated
capital or the capital surplus of the Corporation, a portion of the corporate
assets, in cash or in kind; subject, however, to the limitations contained in
the Colorado Business Corporation Act.
ARTICLE IX
With respect to any action to be taken by shareholders of this
Corporation, a vote or concurrence of the holders of a majority of the
outstanding shares present or represented at a meeting and entitled to vote
thereon shall be required.
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ARTICLE X
The address of the Registered Office of the Corporation is 1675
Broadway, Denver, Colorado 80202. The name of the Registered Agent of the
Corporation at such address is The Corporation Company.
ARTICLE XI
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in, or to add any provisions to, its Articles of
Incorporation from time to time, in any manner permitted by law.
EPL TECHNOLOGIES, INC.
By:
---------------------------------
Name: Shawn J. Collins
Title: Secretary
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-------------------
FOR OFFICE USE ONLY
MAIL TO: SECRETARY OF STATE
CORPORATIONS SECTION
1560 BROADWAY, SUITE 200
DENVER, CO 80202
(303) 894-2251
FAX (303) 894-2242
MUST BE TYPED -------------------
FILING FEE: $25.00
MUST SUBMIT TWO COPIES
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
PLEASE INCLUDE A TYPED
SELF-ADDRESSED ENVELOPE
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is EPL Technologies, Inc.
SECOND: The following amendment to the Articles of Incorporation was adopted on
July 22, 1996, as prescribed by the Colorado Business Corporation Act, in the
manner marked with an X below:
/ / No shares have been issued or Directors Elected - Action by
Incorporators
/ / No shares have been issued but Directors Elected - Action by Directors
/X/ Such amendment was adopted by the board of directors where shares have
been issued.
/ / Such amendment was adopted by a vote of the shareholders. The number of
shares voted for the amendment was sufficient for approval.
THIRD: The manner, if not set forth in such amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
amendment shall be effected, is as follows: See amendment attached.
If these amendments are to have a delayed effective date, please list that date:
N/A
- - --------------------------------------------------------
(Not to exceed ninety (90) days from the date of filing)
EPL Technologies, Inc.
By /s/ SHAWN J. COLLINS
----------------------------
Its Secretary
------------------------
Title
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Certificate of Designation, Number, Voting Powers,
Preferences and Rights of the Series of the Preferred Stock
of
EPL TECHNOLOGIES, INC.
To be Designated
Series B Convertible Preferred Stock
EPL Technologies, Inc., a Colorado corporation (the "Corporation"),
pursuant to authority conferred on the Board of Directors of the Corporation by
its Articles of Incorporation, and in accordance with the provisions of Section
7-108-101 of the Colorado Business Corporation Act ("CBCA"), certifies that the
Board of Directors of the Corporation, at a meeting duly called and held
pursuant to Section 7-108-201 of the CBCA, duly adopted the following
resolution providing for the establishment and issuance of a series of
Preferred Stock to be designated "Series B Convertible Preferred Stock" and to
consist of 531,915 shares as follows:
RESOLVED, that, pursuant to the authority expressly granted and vested
in the Board of Directors of this Corporation in accordance with the provisions
of its Amended and Restated Certificate of Incorporation, as amended, a series
of Preferred Stock of the Corporation be and hereby is established, consisting
of 531,915 shares, to be designated "Series B Convertible Preferred Stock" (the
"Series B Preferred Stock"); the Board of Directors be and hereby is authorized
to issue such shares of Series B Preferred Stock from time to time and for such
consideration and on such terms as the Board of Directors shall determine; and
subject to the limitations provided by law and by
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the Articles of Incorporation, the powers, designations, preferences and
relative, participating, option or other special rights of, and the
qualifications, limitations or restrictions upon, the Series B Preferred Stock
shall be as follows:
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1. Dividends
In each fiscal year of the Corporation, the holders of shares
of Series B Preferred Stock shall be entitled to receive, before any cash
dividends shall be declared and paid upon or set aside for the Common Stock in
such fiscal year, out of the funds legally available for that purpose,
dividends at a rate of ten percent (10%) per annum, or $.47 per share, and no
more, in cash or in stock, at the Corporation's discretion, (i. e., stock at
the stated conversion price) and in preference and priority to any payment of
any cash dividend on Common Stock or any other shares of capital stock of the
Corporation ranking on liquidation junior to the Series B Preferred Stock by
reason of their ownership thereof ("Junior Shares") and pari passu with the
Series A Preferred Stock or any other shares of capital stock of the
Corporation ranking on liquidation pari passu with the Series B Preferred
Stock.
Dividends shall accrue and be deemed to accrue from day to day
whether or not earned or declared and shall be cumulative so that if at any
time after the issuance of the Series B Preferred Stock such dividends shall
not have been paid, or declared and set apart for payment, the deficiency shall
be fully paid on or declared and set apart for payment before any dividend
shall be paid on or declared or set apart for any shares of Junior Shares is
made by the Corporation, except the repurchase of Junior Shares from employees
of this Corporation upon termination of employment. Any accumulation of
dividends on the Series B Preferred Stock shall not bear interest.
2. Liquidation, Dissolution or Winding Up
(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of
shares of Series B Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders, after and subject to the payment in full of all amounts required
to be distributed to the holders of any class of series of stock of the
Corporation ranking on liquidation prior and in preference to the Series B
Preferred Stock, but before any payment shall be made to the holders of Common
Stock or any other Junior Shares, an amount
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equal to $4.70 per share of Series B Preferred Stock (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or
other similar recapitalization affecting such shares). If upon any such
liquidation, dissolution or winding up of the Corporation the remaining assets
of the Corporation available for distribution to its stockholders shall be
insufficient to pay the holders of shares of Series B Preferred Stock the full
amount to which they shall be entitled, the holders of shares of Series B
Preferred Stock and any other class of series of stock ranking on liquidation
on a parity with the Series B Preferred Stock shall share ratably in any
distribution of the remaining assets and funds of the Corporation in proportion
to the respective amounts which would otherwise be payable in respect of the
shares held by them upon such distribution if all amounts payable on or with
respect to such shares were paid in full. The Series B Preferred Stock shall
rank on liquidation on a parity with the Series A Preferred Stock and the
Common Stock shall constitute Junior Shares hereunder.
(b) After the payment of all preferential amounts
required to be paid to the holders of any class or series of stock of the
Corporation ranking on liquidation prior and in preference to the Series B
Preferred Stock and any other class or series of stock of the Corporation
ranking on liquidation on a parity with the Series B Preferred Stock, upon the
dissolution, liquidation or winding up of the Corporation, the holders of
shares of Common Stock or any other Junior Shares then outstanding shall be
entitled to receive the remaining assets and funds of the Corporation available
for distribution to its stockholders.
3. Voting
(a) Each holder of outstanding shares of Series B Preferred
Stock shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series B Preferred Stock held
by such holder are convertible (as adjusted from time to time pursuant to
Section 4 hereof), at each meeting of stockholders of the Corporation (and
written actions of stockholders in lieu of meetings) with respect to any and
all matters presented to the stockholders of the Corporation for their action
or consideration. Except as required by law or
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by the provisions of its Amended and Restated Certificate of Incorporation, as
amended from time to time, holders of Series B Preferred Stock and any other
outstanding series of Preferred Stock shall vote together with the holders of
Series A Preferred Stock and the Common Stock as a single class or "voting
group" within the meaning of the Colorado Business Corporation Act.
(b) The Corporation shall not (i) amend, alter or repeal the
preferences, special rights or other powers of the Series B Preferred Stock so
as to affect adversely the Series B Preferred Stock, or (ii) amend, alter or
modify its Articles of Incorporation to increase the number of authorized
shares of Series B Preferred Stock, without the written consent or affirmative
vote of the holders of a majority of the then outstanding shares of the Series
B Preferred Stock in writing or by vote at a meeting, consenting or voting (as
the case may be) separately as a class. For this purpose, without limiting
the generality of the foregoing, the authorization of any class or series of
stock with preference or priority over the Series B Preferred Stock as to the
right to receive either dividends or amounts distributable upon liquidation,
dissolution or winding up the Corporation shall be deemed to affect adversely
the Series B Preferred Stock, and the authorization of any class or series of
stock on a parity with the Series B Preferred Stock as to the rights to receive
either dividends or amounts distributable upon liquidation, dissolution or
winding up of the Corporation shall not be deemed to affect adversely the
Series B Preferred Stock.
4. Optional Conversion The holders of the Series B Preferred Stock
shall have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert Each share of Series B
Preferred Stock shall be convertible, at the option of the holder thereof, at
any time into such number of fully paid and nonassessable shares of Common
Stock as is determined by dividing $4.70 by the Conversion Price (as defined
below) in effect at the time of conversion for each share of Series B Preferred
Stock. The conversion price at which shares of Common Stock shall be
deliverable upon conversion of Series B Preferred Stock without the payment of
additional consideration by the holder thereof (the "Conversion Price") shall
initially be $4.70. Such initial
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Conversion Price, and the rates at which shares of Series B Preferred Stock may
be converted into shares of Common Stock, shall be subject to adjustment as
provided below.
In the event of a liquidation of the Corporation, the Conversion
Rights shall terminate at the close of business on the first full day preceding
the date fixed for the payment of any amounts distributable on liquidation to
the holders of Series B Preferred Stock.
(b) Fractional Shares No fractional shares of
Common Stock shall be issued upon conversion of the Series B Preferred Stock.
In lieu of any fractional shares to which the holder would otherwise be
entitled, the Corporation shall pay cash equal to such fraction multiplied by
the then effective Conversion Price.
(c) Mechanics of Conversion
(i) In order for a holder of Series B Preferred
Stock to convert shares of Series B Preferred Stock into shares of Common
Stock, such holder shall surrender the certificate or certificates for such
shares of Series B Preferred Stock (or at the principal office of the
Corporation if the Corporation serves as its own transfer agent), together with
written notice that such holder elects to convert all or any number of the
shares of the Series B Preferred Stock represented by such certificate or
certificates. Such notice shall state such holder's name or the names of the
nominees in which such holder wishes the certificate or certificates for shares
of Common Stock to be issued. If required by the Corporation, certificates
surrendered for conversion shall be endorsed or accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Corporation,
duly executed by the registered holder or his, her, or its attorney duly
authorized in writing. The date of receipt of such certificates and notice by
the transfer agent (or by the Corporation if the Corporation serves as its own
transfer agent) shall be the Conversion Date. The Corporation shall, as soon
as practicable after the Conversion Date, issue and deliver at such office to
such holder, or to his, her, or its nominees, a certificate or certificates for
the number of shares of Common
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Stock to which such holder shall be entitled, together with cash in lieu of any
fraction of a share.
(ii) The Corporation shall at all times when the
Series B Preferred Stock shall be outstanding, reserve and keep available out
of its authorized but unissued stock, for the purpose of effecting the
conversion of the Series B Preferred Stock, such number of its duly authorized
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding Series B Preferred Stock. Before taking any
action which would cause an adjustment reducing the Conversion Price below the
then par value of the shares of Common Stock issuable upon conversion of the
Series B Preferred Stock, the Corporation will take any corporate action which
may, in the opinion of its counsel, be necessary in order that the Corporation
may validly and legally issue fully paid and nonassessable shares of Common
Stock at each such adjusted Conversion Price.
(d) Issue of Securities Deemed Issue of Additional Shares
of Common Stock
(i) Adjustment for Merger or Reorganization, etc.
In case of any consolidation or merger of the Corporation with or into another
corporation or the sale of all or substantially all of the assets of the
Corporation to another corporation, each share of Series B Preferred Stock
shall thereafter be convertible into the kind and amount of shares of stock or
other securities or property to which a holder of the number of shares of
Common Stock of the Corporation deliverable upon conversion of such Series B
Preferred Stock would have been entitled upon such consolidation, merger or
sale; and, in such case, appropriate adjustment (as determined in good faith
by the Board of Directors) shall be made in the application of the provisions
in this Section 4 set forth with respect to the rights and interest thereafter
of the holders of the Series B Preferred Stock, to the end that the provisions
set forth in this Section 4 (including provisions with respect to changes in
and other adjustments of the Conversion Price) shall thereafter be applicable,
as nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the conversion of the Series B Preferred
Stock.
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(ii) No Impairment
The Corporation will not by amendment of its Restated
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the Corporation, but will
at all times in good faith assist in the carrying out of all the provisions of
this Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series B Preferred Stock against impairment.
(iii) Certificate as to Adjustments
Upon the occurrence of each adjustment or
readjustment of the Conversion Price pursuant to this Section 4, the
Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series B Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of Series B Preferred Stock, furnish or cause to be
furnished to such holder a similar certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price then in effect, and
(iii) the number of shares of Common Stock and the amount, if any, of other
property which then would be received upon the conversion of Series B Preferred
Stock.
(5) Notice of Record Date In the event:
(i) that the Corporation declares a dividend (or
any other distribution) on its Common Stock
payable in Common Stock or other securities
of the Corporation;
(ii) that the Corporation subdivides or combines
its outstanding shares of Common Stock;
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(iii) of any reclassification of the Common Stock
of the Corporation (other than a subdivision
or combination of its outstanding shares of
Common Stock or a stock distribution
thereon), or of any consolidation or merger
of the Corporation into or with another
corporation, or of the sale of all or
substantially all of the assets of the
Corporation; or
(iv) of the involuntary or voluntary dissolution,
liquidation or winding up of the Corporation; then the Corporation shall cause
to be filed at its principal office or at the office of the transfer agent of
the Series B Preferred Stock, and shall cause to be mailed to the holders of
the Series B Preferred Stock at their last addresses as shown on the records of
the Corporation or such transfer agent, at least ten days prior to the record
date specified in (A) below or 20 days before the date specified in (B) below,
a notice stating
(A) the record date of such dividend, distribution,
subdivision or combination, or, if a record is
not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such
dividend, distribution, subdivision or combination
are to be determined, or
(B) the date on which such reclassification,
consolidation, merger, sale, dissolution,
liquidation or winding up is expected to become
effective, and the date as of which it is expected
that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock
for securities or other property deliverable upon
such reclassification, consolidation, merger,
sale, dissolution or winding up.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be affixed hereto and this Certificate of Designation to
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be signed by its Chief Executive Officer and attested by its Secretary this
23rd day of July, 1996
/s/ Paul L. Devine
- - -----------------------------------------------
Paul L. Devine
Chairman, President and Chief Executive Officer
EPL Technologies, Inc.
/s/ Shawn J. Collins
- - -----------------------------------------------
Shawn J. Collins
Secretary
EPL Technologies, Inc.
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