APTUS, CORP.
CERTIFICATE OF AMENDMENT NO. 2
OF
CERTFICATE OF INCORPORATION
Pursuant to Section 242 of the Delaware Corporation Law (the "DGCL"),
Aptus, Corp., a Delaware corporation (the "Corporation"), hereby certifies as
follows:
1. The Certificate of Incorporation of the Corporation is hereby amended in the
following manner:
Article Five of the Corporation's Certificate of incorporation
is hereby amended to include:
ARTICLE FIVE
SHARES
The total number of shares of stock which the Corporation shall have
authority to issue is 275,000,000 shares, consisting of 250,000,000 shares of
Common Stock having a par value of $.001 per share, 5,000,000 shares of Class A
Common Stock having a par value of $.00l and 10,000,000 shares of Class A
Preferred Stock having a par value of $.001 per share and 10,000,000 shares of
Class B Preferred Stock having a par value of $.001 per share.
The Board of Directors is authorized to provide for the issuance of the
shares of Preferred Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof. The authority of the Board
of Directors with respect to each series of Preferred Stock shall include, but
not be limited to, determination of the following:
A. The number of shares constituting that series and the distinctive
designation of that series;
B. The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on share
of that series;
C. Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting
rights;
D. Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of
Directors shall determine;
E. Whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date
or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
F. Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of
such sinking fund;
G. The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation,
and the relative rights of priority, if any, of payment of shares of
that series; and
H. Any other relative rights, preferences and limitations of that
series.
CLASS A COMMON STOCK.
The Class A Common Stock shall be non-assessable and shall not
have cumulative voting rights or pre-emptive rights. In addition, the
Class A Common Stock shall have the following powers, preferences,
rights, qualifications, limitations and restrictions:
(a) The holders of Class A Common Stock shall have one hundred
(100) votes for each share of Class A Common Stock, on all matters
submitted to the Corporation's shareholders.
(b) Each holder of record of Class A Common Stock may at any
time or from time to time, in the holder's sole discretion and option,
convert any whole number or all of the holder's Class A Common Stock
into fully paid and nonassessable Common Stock at the rate (subject to
adjustment as provided below) of one share of Common Stock for each
share of Class A Common Stock surrendered for conversion;
(c) The conversion of Class A Common Stock into Common Stock
may be effected by any holder of Class A Common Stock surrendering the
holder's certificate or certificates for the Class A Common Stock to be
converted, duly endorsed, at the office of the Corporation or any
transfer agent for the Class A Common Stock, together with a written
notice to the Corporation that the holder elects to convert all or a
specified number of shares of Class A Common Stock and stating the name
or names in which the holder desires the certificate or certificates
for the Class A Common Stock to be issued. The Corporation shall
immediately issue and deliver to the holder or the holder's nominee or
nominees, a certificate or certificates for the number of Common Stock
to which the holder shall be entitled. The conversion shall be deemed
to have been made at the close of business on the date of the surrender
and the person or persons entitled to receive the Common Stock issuable
on the conversion shall be treated for all purposes as the record
holder or holders of those shares of Common Stock on that date;
(d) The number of shares of Common Stock into which the Class
A Common Stock may be converted shall be subject to adjustment from
time to time in the event of any capital reorganization,
reclassification of the stock of the Corporation, consolidation or
merger of the Corporation with or without another corporation or sale
or conveyance of all or substantially all of the assets of the
Corporation to another corporation or other entity or person. Each
share of Class A Common Stock shall subsequently be convertible into
the kind and amount of securities or other assets, or both, as are
issuable or distributable in respect of the number of shares of Common
Stock into which each share of Class A Common Stock is convertible
immediately prior to the reorganization, reclassification,
consolidation, merger, sale or conveyance. In those cases, appropriate
adjustments shall be made by the Board of Directors of the Corporation
in the application of the provisions set forth in this article with
respect to the rights and interests of the holders of Class A Common
Stock, to the end that the provisions (including provisions for
adjustment of the conversion rate) shall be applicable, as nearly as
reasonably may be, in relation to any securities or other assets
deliverable on conversion of the Class A Common Stock;
(f) No fraction of a share of Common Stock shall be issued on
conversion of any Class A Common Stock but, in lieu of issuance of a
fractional share of Common Stock, the Corporation shall pay in cash for
the fractional share the pro rata fair market value of the fraction.
The fair market value shall be based, in the case of publicly traded
securities, on the last sale price for the securities on the business
day next prior to the date the fair market value is to be determined
(or, in the event no sale is made on that day, the average of the
closing bid and asked prices for that day on the principal stock
exchange on which Common Stock are traded or, if the Common Stock is
not then listed on any national securities exchange, the average of the
closing bid and asked prices for that day quoted by the NASDAQ System)
or, in the case of other property, the fair market value on the day
determined by a qualified independent appraiser expert in evaluating
the property and appointed by the Board of Directors of the
Corporation. The determination of fair market value shall be final and
binding on the Corporation and on each holder of Class A Common Stock
or Common Stock;
(g) The Corporation shall at all times reserve and keep
available out of the authorized and unissued Common Stock, solely for
the purpose of effecting the conversion of the outstanding Class A
Common Stock, the number of shares of Common Stock as shall from time
to time be sufficient to effect the conversion of all outstanding Class
A Common Stock and if, at any time, the number of shares of authorized
and unissued Common Stock shall not be sufficient to effect conversion
of the then outstanding Class A Common Stock, the Corporation shall
take the corporate action necessary to increase the number of
authorized and unissued shares of Common Stock to the number sufficient
for those purposes;
(h) Holders of Class A Common Stock shall not be entitled to
share in cash dividends declared by the Company;
(i) Holders of Class A Common Stock shall be entitled to share
in dividends declared in stock or other property of the Company without
distinction as to class and on the same basis as holders of Common
Stock in accordance with subparagraph (2) of Paragraph (b) of this
Article V;
(j) All shares of Class A Common Stock held by a holder, shall
automatically be converted into shares of Common Stock upon the death
of such holder.
2. In accordance with Section 141 of the DGCL, the Board of
Directors of the Corporation has duly adopted resolutions
setting forth said amendment, declaring said amendment to
be advisable and in the best interests of the Corporation
and calling for the submission of said amendment to the
stockholders of the Corporation for consideration
thereof.
3. In accordance with Section 228(a) of the DGCL, the
stockholders of the Corporation have duly adopted said
amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed as the 16th day of December 2003.
Aptus, Corp.
By:/s/ M. Carroll Benton
------------------------
M. Carroll Benton
Secretary and Treasurer