CERTIFICATE OF
DESIGNATIONS, PREFERENCES AND RIGHTS OF
CLASS A REDEEMABLE PREFERRED STOCK
OF
AMSERV HEALTHCARE INC.
AMSERV HEALTHCARE INC. (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY: that, pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation (as amended) of said corporation, and pursuant
to the provisions of Section 151 of the General Corporation Law of Delaware,
said Board of Directors adopted a resolution providing for designations,
preferences and relative, participating, optional or other rights and the
related qualifications, limitations or restrictions thereof, of the Class A
Redeemable Preferred Stock, $.01 par value per share (the "Class A Preferred")
which resolution is as follows:
RESOLVED, that the rights, designations and preferences of the Class A
Preferred Stock of the Corporation is as follows:
PART A. TERMS APPLICABLE TO CLASS A PREFERRED.
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Section 1. Liquidation.
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1.1 Preference. Upon any voluntary or involuntary liquidation,
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dissolution or winding up of the Corporation, the holders of Class A Preferred
will be entitled to be paid, before any distribution or payment is made upon any
Common Stock, an amount in cash equal to the aggregate Liquidation Value (as
defined below) of all shares of Class A Preferred outstanding. The Corporation
will mail written notice of such liquidation, dissolution or winding up, not
less than sixty (60) days prior to the payment date stated therein, to each
record holder of Class A Preferred. At the option of a holder of Class A
Preferred with respect to its Class A Preferred Shares, a "Change in Control"
(as defined below) or an "Organic Change" (as defined below) will be deemed to
be a liquidation, dissolution or winding up of the Corporation for purposes of
this Section 1.
1.2 Insufficient Funds. If upon any liquidation, dissolution or winding
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up of the Corporation, whether voluntary or involuntary, the assets available
for distribution to the stockholders of the Corporation (the "Distributable
Funds") shall be insufficient to permit the payment to the holders of Class A
Preferred of the full preferential amount set forth above, then the
Distributable Funds shall be distributed to the holders of Class A Preferred,
ratably in proportion to the number of Class A Preferred Shares held by each
such holder on the date of liquidation, dissolution or winding up of the
Corporation.
1.3 Remaining Funds. If any of the Distributable Funds shall remain after
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the payment to the holders of Class A Preferred of the full preferential amount
set forth in Section 1.1 above, then such remainder shall be distributed to the
holders of Common Stock and to the holders of the Class A Preferred, ratably in
proportion to the number of shares of stock that each such holder holds.
Section 2. Ranking. The Class A Preferred shall, with respect to rights
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on liquidation, dissolution or winding up, rank senior to all other equity
securities of the Corporation, and any other series or class of the
Corporation's preferred or common stock, now or hereafter authorized.
Section 3. Voting Rights. The Class A Preferred shall have those voting
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rights set forth for the Class A Preferred in Part B below.
Section 4. Redemption.
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4.1 Holders' Right to Require Redemption.
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(a) At the written request delivered to the Corporation by any holder
of Class A Preferred then outstanding (a "Requesting Class A Holder") made upon
any Event of Default (as defined below) or Redemption Date (as defined below),
the Corporation shall redeem (unless otherwise prevented by law) at a redemption
price per share equal to 100% of the Liquidation Preference for such Class A
Preferred Shares in cash (i) with respect to an Event of Default, all, but not
less than all of the Class A Preferred Shares held by such Requesting Class A
Holder or (ii) with respect to each Redemption Date, a number of Class A
Preferred Shares equal to (A) 85,359 multiplied by the quotient of (i) the
number of Class A Preferred Shares then held by such holder divided by (ii) the
total number of Class A Preferred Shares outstanding at the time of the demand
for redemption, plus (B) the number of Class A Preferred Shares, if any, of
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which such holder (or a predecessor-in-interest) was entitled to demand
redemption on any prior Redemption Date but for which such holder (or a
predecessor-in-interest) did not make such demand. Notwithstanding the
foregoing, if the holders do not demand for redemption the maximum number of
Class A Preferred Shares the holder can have redeemed, such holders may demand
redemption of such amount not redeemed, but subject to redemption, at any time
thereafter.
The total sum payable per share of Class A Preferred to be redeemed
pursuant to this Section 4.1(a) or Section 4.4 (the "Redeemed Class A Shares")
on the Redemption Date, an Event of Default or optional redemption, as the case
may be, is hereinafter referred to as the "Redemption Price", and the payment to
be made on the Redemption Date, an Event of Default or optional redemption, as
the case may be, for the Redeemed Class A Shares is hereinafter referred to as
the "Redemption Payment".
(b) If at any time after any holders of Class A Preferred Shares shall
have demanded redemption pursuant to this Section for an Event of Default, if
all Events of Default
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shall be remedied or waived by such holders, then, and in every such case, such
holders may in their sole discretion, by written notice to the Corporation,
rescind and annul such demand for immediate redemption and its consequences.
4.2 Redemption Date. The holders shall be entitled to demand redemption
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on each of May 29, 1995, November 29, 1995, May 29, 1996, November 29, 1996 and
May 29, 1997 (each such date a "Redemption Date").
4.3 Events of Default. An Event of Default shall be
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deemed to have occurred:
(a) If the Corporation shall fail to make any redemption
payment it is obligated to make and such failure continues for a
period of five days thereafter; or
(b) Any representation or warranty made by the Corporation
in the Stock Purchase Agreement herewith, or that is contained in
any certificate furnished at any time under or in connection
therewith, shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Corporation shall default in the material observance
or performance of any covenant or agreement contained in this
Certificate or the Stock Purchase Agreement, and such default
shall continue unremedied for a period of thirty (30) days after
the Corporation has received notice of the occurrence thereof; or
(d) (i) The Corporation shall commence any case, proceeding
or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have
an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or
(B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part
of its properties or assets, or the Corporation shall make a
general assignment for the benefit of its creditors; or (ii)
there shall be commenced against the Corporation any case,
proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed,
undischarged, unstayed or unbonded for a period of sixty (60)
days; or (iii) there shall be commenced against the Corporation
any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets, that results
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in the entry of an order for any such relief that shall not have
been vacated, discharged, stayed or bonded pending appeal within
sixty (60) days from the entry thereof; or (iv) the Corporation
shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii) or (iii) above; or (v) the Corporation
shall generally not pay its debts as they become due; or
(e) The lapse of thirty (30) days following the day on which
Eugene Mora is no longer employed on a full-time basis by the
Corporation.
(f) If there shall occur a Change of Control of the
Corporation or an Organic Change.
4.4 Optional Redemption. The Corporation may at any time redeem all, but
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not less than all, of the Class A Preferred Shares owned by each holder or
holders at a price per share equal to 100% of the Liquidation Value thereof in
cash or in the form of a mutually agreeable promissory note. The Corporation
shall give written notice of any such redemption to all holders of Class A
Preferred. Each such holder shall then have seven (7) days after receipt of the
Corporation's notice to acknowledge such redemption and to surrender their
certificates evidencing such Class A Preferred.
4.5 Redemption Payment. For each Class A Preferred Share that is to be
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redeemed, the Corporation shall be obligated to pay to the holder thereof (upon
surrender by such holder at the Corporation's principal office of the
certificate representing such Class A Preferred Shares) an amount in immediately
available funds equal to 100% of the Liquidation Value of such Class A Preferred
Shares within five (5) business days of the receipt of the demand for
redemption. If the funds of the Corporation legally available for redemption of
Class A Preferred on any Redemption Date are insufficient to redeem the total
number of Class A Preferred Shares to be redeemed on such date, those funds
which are legally available shall be paid to the holders of the Class A
Preferred ratably in proportion to the number of Class A Preferred Shares
requested to be redeemed by each Requesting Class A Holder. At any time
thereafter when additional funds of the Corporation are legally available for
the redemption of Class A Preferred Shares, such funds shall immediately be used
to redeem the balance of the Class A Preferred Shares which the Corporation had
become obligated to redeem but had not redeemed, paid to the Requesting Class A
Holders ratably in proportion to the number of Class A Preferred Shares
requested to be redeemed by each such holder on the date such funds become
legally available. In case fewer than the total number of Class A Preferred
Shares represented by any certificate are redeemed, a new certificate
representing the number of unredeemed Class A Preferred Shares shall be issued
to the holder thereof without cost to such holder within five (5) business days
after surrender of the certificate representing the redeemed Class A Preferred
Shares.
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4.6 No Rights After Redemption. Subject to Section 4.1(b), upon delivery
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of notice of redemption, all rights of any Class A Preferred Holder with respect
to the Redeemed Class A Shares, except the right to receive the Redemption Price
for each Redeemed Class A Share as herein provided, shall cease and terminate
except for those shares for which the Company has insufficient funds to redeem
pursuant to Section 4.5; and such Redeemed Class A Shares shall no longer be
deemed to be outstanding, whether or not the certificates representing such
shares have been received by the Corporation; provided, however, that, if the
Corporation defaults in the payment of the Redemption Payment, the rights of the
Requesting Class A Holder shall continue until the Corporation cures such
default. At any time on or after the Redemption Date, the Requesting Class A
Holder shall be entitled to receive the Redemption Price for each of the
Redeemed Class A Shares upon actual delivery to the Corporation of the
certificate(s) representing the Redeemed Class A Shares.
4.7 Redeemed or Otherwise Acquired Shares. Any Class A Preferred Shares
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that are redeemed or otherwise acquired by the Corporation shall be cancelled
and no longer exist.
4.8 Other Redemptions. The Corporation shall not redeem or otherwise
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acquire any Class A Preferred Shares, except as expressly authorized in this
Section or pursuant to an offer made pro rata to all holders of the Class A
Preferred on the basis of the number of Class A Preferred Shares held by each
such holder.
Section 5. Miscellaneous.
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5.1 Registration of Transfer. The Corporation will keep at its principal
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office a register for the registration of Class A Preferred Shares. Upon the
surrender of any certificate representing Class A Preferred Shares at such
place, the Corporation will, at the request of the record holder of such
certificate, execute and deliver (at the Corporation's expense) a new
certificate or certificates in exchange therefor representing in the aggregate
the number of Class A Preferred Shares represented by the surrendered
certificate. Each such new certificate will be registered in such name and will
represent such number of Class A Preferred Shares as is requested by the holder
of the surrendered certificate and will be substantially identical in form to
the surrendered certificate.
5.2 Replacement. Upon receipt of evidence reasonably satisfactory to the
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Corporation (an affidavit of the registered holder will be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing Class A Preferred Shares, and in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the
Corporation, or, in the case of any such mutilation upon surrender of such
certificate, the Corporation will (at its expense) execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
Class A Preferred Shares of such class represented by such lost, stolen,
destroyed or mutilated certificate and dated the date of such lost, stolen,
destroyed or mutilated certificate.
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5.3 Amendment and Waiver. No amendment, modification or waiver will be
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binding or effective with respect to any provision of Article IV, Part A without
the prior written consent of the holders of at least fifty one (51%) of the
Class A Preferred Shares outstanding at the time such action is taken; provided
that no action will discriminate against any holder of Class A Preferred other
than as a result of a difference in the number of Class A Preferred Shares held
by such holders.
5.4 Notices. Except as otherwise expressly provided, all notices referred
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to herein will be in writing and will be delivered by registered or certified
mail, return receipt requested, postage prepaid and will be deemed to have been
given when so mailed (a) to the Corporation, at its principal executive offices
and (b) to any stockholder, at such holder's address as it appears in the stock
records of the Corporation (unless otherwise indicated in writing by such
holder).
PART B. VOTING RIGHTS.
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Section 1. In General. Except as otherwise provided by the by the
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Delaware General Corporation Law or by this Certificate of Incorporation or any
amendments thereto, each Class A Preferred Share shall entitle the holder
thereof to vote, in proxy or in person, on all matters voted on by the holders
of Common Stock voting together as a single class with the holders of Common
Stock and with the holders of all other shares entitled to vote thereon. Each
holder of Class A Preferred shall have one vote per share of Class A Preferred
held by such holder on the date as of which the holders of Class A Preferred of
record entitled to vote were determined and each holder of Common Stock shall
have one vote per share of Common Stock held by such holder on the date as of
which the holders of Common Stock of record entitled to vote were determined.
PART C. DEFINITIONS.
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"Affiliate" shall have the same meaning as the term is defined in the
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Securities Exchange Act of 1934, as amended and the rules and regulations
thereunder or any successor statute or rules and regulations (the "Exchange
Act").
"Change of Control" means the happening of any of the following events:
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(a) (i) any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") acquires
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of greater than 50% of the then outstanding shares of Common Stock
or (ii) the stockholders of the Corporation approve a reorganization, merger,
consolidation, complete liquidation or dissolution of the Corporation, the sale
or disposition of all or substantially all of the assets of the Corporation or
similar corporate transaction, unless such acquisition (as described in clause
(i) above) or such transaction (as described in clause (ii) above) is approved
prior thereto by the Corporation's Board in accordance with the Corporation's
Bylaws.
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(b) A change in the composition of the Board such that the individuals
who, as of the date of this Certificate, constitute the Board (such Board shall
be hereinafter referred to as the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual who becomes a member of the Board subsequent to the date of this
Certificate whose election, or nomination for election by the Corporation's
stockholders, was approved by a vote of at least a majority of those individuals
who are members of the Board and who were also members of the Incumbent Board
(or deemed to be such pursuant to this provision) shall be considered as though
such individual were a member of the Incumbent Board; but, provided, further,
that any such individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board shall not be so considered as a member of the
Incumbent Board.
"Liquidation Value" of any share of Class A Preferred as of any particular
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date will be equal to $2.00 per share.
"Organic Change" means any capital reorganization, reclassification,
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consolidation, merger, lease, or sale of all or substantially all of the
Corporation's assets to another Person which is effected in such a way that
holders of Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for shares of Common Stock.
"Person" means an individual, a partnership, a corporation, an association,
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a joint stock company, a trust, a joint venture, an unincorporated organization
and a governmental entity or any department, agency or political subdivision
thereof.
"Stock Purchase Agreement" means the Stock Purchase Agreement, dated as of
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April 7, 1995, by and among the Corporation and North Central Personnel, Inc.,
as such agreement may be amended from time to time in accordance with its terms.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations, Preferences and Rights of Class A Preferred Stock to be signed by
Eugene J. Mora, its Chairman on this 7th day of April, 1995.
AMSERV HEALTHCARE INC.
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By: Eugene J. Mora
Its: Chairman
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