EXHIBIT 3(f)
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SIRCO INTERNATIONAL CORP.
Under Section 805 of the Business Corporation Law
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FIRST: The name of the corporation is Sirco International Corp. The
name under which the corporation was formed is Sirco Products Co. Inc.
SECOND: The certificate of incorporation of the corporation was filed
by the Department of State on July 22, 1964.
THIRD: The amendment to the certificate of incorporation effected by
this certificate of amendment is as follows:
To create a series of Preferred Stock, par value $.10 per
share, designated Series B Preferred Stock.
FOURTH: To accomplish the foregoing amendment, Article FOURTH of the
certificate of incorporation is hereby amended to add the following paragraph E:
E. Series B Preferred Stock. A series of 1300 shares of
preferred stock, par value $0.10 per share, of the corporation shall be
created and be designated "Series B Preferred Stock" having the
following rights and preferences:
SECTION 1. Dividends and Distributions. Commencing from the
date of initial issuance of shares of Series B Preferred Stock (the
"Date of Issuance"), the holder of each issued and outstanding share of
Series B Preferred Stock shall be entitled to receive, out of assets at
the time legally available for such purpose, dividends and
distributions, whether in cash or property or in securities of the
corporation, including subscription or other rights to purchase or
acquire securities of the corporation ("Distributions"), when and as
declared by the Board of Directors of the corporation (each such date,
a "Dividend Payment Date") on the shares of common stock, par value
$0.10 per share, of the corporation, such that when and as a
Distribution is declared, paid and made on shares of common stock, the
Board of Directors shall also declare a Distribution at the same rate
and in like kind on the shares of Series B Preferred Stock, so that the
Series B Preferred Stock will participate equally with the common
stock, share for share, in such Distribution. In connection therewith,
each share of Series B Preferred Stock shall entitle the holder thereof
to such Distributions based upon the number of shares of common stock
into which such share of Series B Preferred Stock is then convertible,
rounded to the nearest one tenth of a share. If on any Dividend Payment
Date the corporation shall not be lawfully permitted under New York law
to pay all or a portion of any such declared Distributions, the
corporation shall take such action as may be lawfully permitted in
order to enable the corporation, to the extent permitted by New York
law, lawfully to pay such Distributions.
SECTION 2. Liquidation. (a) In the event of any liquidation,
dissolution or winding-up of the corporation, either voluntary or
involuntary (a "Liquidation"), the holders of shares of Series B
Preferred Stock then issued and outstanding shall be entitled to be
paid out of the assets of the corporation available for distribution to
its shareholders, whether from capital, surplus or earnings, before any
payment shall be made to the holders of shares of common stock or upon
any other series of preferred stock of the corporation with a
liquidation preference subordinate to the liquidation preference of the
Series B Preferred Stock, an amount equal to one thousand dollars
($1,000) per share. If, upon any Liquidation of the corporation, the
assets of the corporation available for distribution to its
shareholders shall be insufficient to pay the holders of shares of the
Series B Preferred Stock, and the holders of any other series of
preferred stock with a liquidation preference equal to the liquidation
preference of the Series B Preferred Stock, the full amounts to which
they shall respectively be entitled, the holders of shares of Series B
Preferred Stock and the holders of any other series of preferred stock
with liquidation preference equal to the liquidation preference of the
Series B Preferred Stock shall receive all of the assets of the
corporation available for distribution and each such holder of shares
of Series B Preferred Stock and the holders of any other series of
preferred stock with a liquidation preference equal to the liquidation
preference of the Series B Preferred Stock shall share ratably in any
distribution in accordance with the amounts due such shareholders.
After payment shall have been made to the holders of shares of the
Series B Preferred Stock of the full amount to which they shall be
entitled, as aforesaid, the holders of shares of Series B Preferred
Stock shall be entitled to no further distributions thereon and the
holders of shares of common stock and of shares of any other series of
stock of the corporation shall be entitled to share, according to their
respective rights and preferences, in all remaining assets of the
corporation available for distribution to its shareholders.
(b) A merger or consolidation of the corporation with
or into any other corporation, or a sale, lease, exchange or transfer
of all or any part of the assets of the corporation which shall not in
fact result in the liquidation (in whole or in part) of the corporation
and the distribution of its assets to its shareholders shall not be
deemed to be a voluntary or involuntary liquidation (in whole or in
part), dissolution or winding-up of the corporation.
SECTION 3. Conversion of Series B Preferred Stock. The holders
of Series B Preferred Stock shall have the following conversion rights:
(a) Optional Right to Convert. Each share of Series B
Preferred Stock shall be convertible at the option of the holder (an
"Optional Conversion") into fully paid and non-assessable shares of
common stock at any time after the original issuance of the Series B
Preferred Stock (such date being referred to as a "Conversion Date") at
the conversion price (the "Conversion Price") set forth below.
(b) Mechanics of Conversion. Each holder of Series B
Preferred Stock who desires to convert the same into shares of common
stock shall provide written notice (a "Conversion Notice") via
confirmed facsimile to the corporation at its principal executive
offices. The original Conversion Notice and the certificate or
certificates representing the Series B Preferred Stock for which
conversion is elected, duly endorsed in blank or accompanied by proper
instruments of transfer, shall be delivered to the corporation at its
principal executive offices by overnight domestic courier or by
international courier. The date upon which a Conversion Notice is
properly received by the corporation shall be a "Notice Date".
(c) Conversion Price. Each share of Series B
Preferred Stock shall be convertible into a number of shares of common
stock determined in accordance with the following formula (the
"Conversion Formula"):
1,000
Conversion Price
where:
Conversion
Price = (A) prior to November 18, 1999, $1.00 or (B) on or
after November 18, 1999, the lesser of (i) $1.00 or (ii) the average
closing share price of the common stock, as reported by NASDAQ, for the
twenty (20) trading days immediately preceding November 18, 1999;
provided, however, that in no event shall the Conversion Price be less
than $.50
(d) Mandatory Conversion. At any time after November
18, 1999 the corporation may cause the conversion (a "Mandatory
Conversion") of the Series B Preferred Stock outstanding into fully
paid and non-assessable shares of common stock pursuant to the
Conversion Formula, based upon the Conversion Price then in effect.
To effect a Mandatory Conversion, the corporation shall issue
to each holder of record of the Series B Preferred Stock a notice
stating that the corporation is effecting a Mandatory Conversion with
regard to the Series B Preferred Stock. Such notice shall contain a
statement indicating the number of shares of Series B Preferred Stock
subject to the Mandatory Conversion, the number of shares of common
stock to be received by holders upon conversion and the effective date
of such conversion (the "Conversion Date"). As soon as practicable
after the Conversion Date, each holder of Series B Preferred Stock
shall surrender certificates for all shares being converted duly
endorsed in blank or accompanied by proper instruments of transfer and
the corporation shall deliver to such holder or such holder's nominee
certificates representing the number of shares of common stock to which
such holder shall be entitled. The Mandatory Conversion of Series B
Convertible Stock shall be deemed to have occurred on the Conversion
Date without regard to the time of surrender of such shares of Series B
Preferred Stock and (i) such shares of Series B Preferred Stock shall
no longer be deemed outstanding and all rights whatsoever with respect
to such shares shall terminate (except the right of a holder to receive
certificates representing the number of shares of common stock to which
such holder is entitled, together with a cash payment in lieu of any
fractional shares of common stock) and (ii) holders entitled to receive
shares of common stock deliverable upon conversion of such shares of
Series B Preferred Stock shall be treated for all purposes as the
holder of record of such shares of common stock on the Conversion Date
notwithstanding that the share register of the corporation shall then
be closed or the certificates representing the shares of common stock
shall not then be actually delivered to such holder.
(e) Fractional Shares. No fractional share shall be
issued upon the conversion of any of the Series B Preferred Stock. All
shares of common stock (including fractions thereof) issuable upon
conversion of the Series B Preferred Stock by a holder thereof shall be
aggregated for purposes of determining whether the conversion would
result in the issuance of any fractional share. If, after the
aforementioned aggregation, the conversion would result in the issuance
of a fraction of a share of common stock, the corporation shall, in
lieu of issuing any fractional share, pay the holder otherwise entitled
to such fraction a sum in cash equal to the closing price per share of
the common stock, as reported by NASDAQ, on the Notice Date multiplied
by such fraction.
(f) Reservation of Common Stock Issuable Upon
Conversion. The corporation shall at all times reserve and keep
available out of its authorized but unissued shares of common stock,
solely for the purpose of effecting the conversion of the Series B
Preferred Stock, such number of shares of common stock free of
preemptive rights as shall be sufficient to effect the conversion of
all shares of Series B Preferred Stock then outstanding; and if at any
time the number of authorized but unissued shares of common stock shall
not be sufficient to effect the conversion of all then outstanding
shares of Series B Preferred Stock, the corporation will take such
action as may be necessary to increase its authorized but unissued
shares of common stock to such number of shares as shall be sufficient
for such purpose.
(g) Adjustment of Conversion Price.
(i) If, prior to the conversion of all
outstanding shares of Series B Preferred Stock, the corporation shall
reclassify, subdivide or combine its outstanding shares of common stock
into a greater or smaller number of shares by a stock split, stock
dividend or other similar event, then in each such case the Conversion
Price shall be adjusted to that price which will permit the number of
shares of common stock into which Series B Preferred Stock may be
converted to be increased or reduced in the same proportion as are the
number of shares of common stock.
(ii) If, prior to the conversion of all of
the outstanding shares of Series B Preferred Stock, there shall be any
merger, consolidation, exchange of shares, recapitalization,
reorganization, or other similar event, as a result of which shares of
common stock of the corporation shall be changed into the same or a
different number of shares of the same or another class or classes of
stock or securities of the corporation or another entity, then the
holders of shares of Series B Preferred Stock shall thereafter have the
right to purchase and receive upon conversion of the Series B Preferred
Stock, upon the basis and upon the terms and conditions specified in
this Paragraph D of this Article Fourth and in lieu of the shares of
common stock immediately theretofore issuable upon conversion, such
share of stock and/or securities as may be issued or payable with
respect to or in exchange for the number of shares of common stock
immediately theretofore purchasable and receivable upon the conversion
of the Series B Preferred Stock held by such holders had such merger,
consolidation, exchange of shares, recapitalization or reorganization
not taken place, and in any such case appropriate provisions shall be
made with respect to the rights and interests of the holders of the
Series B Preferred Stock to the end that the provisions hereof
(including, without limitation, provisions for adjustment of the
Conversion Price and of the number of shares issuable upon conversion
of the Series B Preferred Stock) shall thereafter be applicable, as
nearly as may be practicable in relation to any shares of stock or
securities thereafter deliverable upon the exercise hereof. The
corporation shall not effect any transaction described in this
subsection unless the resulting successor or acquiring entity (if not
the corporation) assumes by written instrument the obligation to
deliver to the holders of the Series B Preferred Stock such shares of
stock and/or securities as, in accordance with the foregoing
provisions, the holders of the Series B Preferred Stock may be entitled
to purchase.
(iii) If any adjustment under this
subsection would create a fractional share of common stock or a right
to acquire a fractional share of common stock, such fractional share
shall be disregarded and the number of shares of common stock issuable
upon conversion shall be the next higher number of shares.
(h) The corporation will pay any and all issue or
other taxes that may be payable in respect of any issue or delivery of
shares of common stock on conversion of shares of Series B Preferred
Stock pursuant hereto. The corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved
in the issue or delivery of common stock in a name other than that in
which the shares of Series B Preferred Stock so converted were
registered, and no such issue or delivery shall be made unless and
until the person requesting such issue has paid to the corporation the
amount of such tax, or has established, to the satisfaction of the
corporation, that such tax has been paid.
SECTION 4. Status of Converted Shares. In the event any shares
of Series B Preferred Stock shall be converted as contemplated by this
Paragraph D of this Article Fourth, the shares so converted shall be
canceled, shall return to the status of authorized but unissued
preferred stock, par value $0.10 per share, of the corporation, of no
designated class or series, and shall not be issuable by the
corporation as Series B Preferred Stock.
SECTION 5. Voting Rights. (a) Except as otherwise specifically
provided by the New York Business Corporation Law or as otherwise
provided herein, the holders of Series B Preferred Stock shall be
entitled to vote on any matters required or permitted to be submitted
to the holders of shares of common stock for their approval, and such
holders of shares of Series B Preferred Stock and holders of shares of
common stock shall vote as a single class, with the holders of shares
of Series B Preferred Stock having the number of votes to which they
would be entitled if the Series B Preferred Stock were converted into
shares of common stock in accordance with the Conversion Formula.
(b) So long as Series B Preferred Stock is
outstanding, the corporation shall not, without the affirmative vote or
consent of the holders of at least a majority (or such higher
percentage, if any, as may then be required by applicable law) of all
outstanding shares of Series B Preferred Stock, voting separately as a
class, amend any provision of the certificate of incorporation of the
corporation so as to change the preferences, conversion or other
rights, voting powers, restrictions or limitations as to dividends or
other distributions of the Series B Preferred Stock.
SECTION 6. Rank and Limitations of Preferred Stock. All shares
of Series B Preferred Stock shall rank equally with each other share of
Series B Preferred Stock and shall be identical in all respects.
FIFTH: The manner in which the foregoing amendment of the certificate
of incorporation was authorized is as follows:
The Board of Directors duly authorized the foregoing amendment
at a Board of Directors meeting held on January 25, 1999.
IN WITNESS WHEREOF, the undersigned have subscribed this document on
February 17, 1999 and do hereby affirm under the penalties of perjury, that the
statements contained therein have been examined by the undersigned and are true
and correct.
/s/ Joel Dupre
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Joel Dupre
Chairman of the Board and Chief
Executive Officer
/s/ Eric M. Hellige
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Eric M. Hellige
Secretary