EXHIBIT 3 (iv)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
PUREPAC, INC.
The undersigned, being the President and Secretary
of Purepac, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of
the State of Delaware (the "Corporation"), pursuant to
Section 242 of the General Corporation Law of the State
of Delaware, do hereby certify:
1. The name of the Corporation is Purepac, Inc..
2. This Certificate of Amendment and the
amendments to the Certificate of Incorporation of the
Corporation set forth herein have been duly approved,
adopted, certified, executed and acknowledged in
accordance with Section 242 of the General Corporation
Law of the State of Delaware.
3. The Certificate of Incorporation of the
Corporation is hereby amended so as to change the name
of the Corporation to Faulding Inc. Accordingly,
Article FIRST of the Certificate of Incorporation is
hereby deleted in its entirety and the following is
substituted therefor:
FIRST: The name of the Corporation is
Faulding Inc.
4. The Certificate of Incorporation of the
Corporation is hereby amended so as to increase the
number of authorized shares of common stock of the
Corporation from 25,000,000 to 35,000,000.
Accordingly, Article FOURTH of the Certificate of
Incorporation is hereby deleted in its entirety and
the following is substituted therefor:
FOURTH: The total number of shares of stock
which the Corporation shall have authority to issue is
36,834,188, which shall consist of 35,000,000 shares,
$.01 par value, designated as Common Stock and
1,834,188 shares, $.01 par value, designated as
Preferred Stock. All cross-references in each Part of
this Article FOURTH refer to other Sections in such
Article unless otherwise indicated.
The following is a statement of the
designations and the powers, preferences and rights,
and the qualifications, limitations or restrictions
thereof, in respect of each class of stock of the
Corporation.
I. PREFERRED STOCK
The Preferred Stock shall be comprised of (i)
a Class A Preferred Stock which shall consist of
834,188 shares and (ii) additional Preferred Stock
("Additional Preferred Stock") which shall consist of
1,000,000 shares.
Part 1: Dividends on Class A Preferred
Stock.
1.1 General Dividend Obligation. The
Corporation shall pay to the holders of the Class A
Preferred Stock out of the assets of the Corporation at
any time available for the payment of dividends under
the provisions of the General Corporation Law of the
State of Delaware; preferential dividends at the times
and in the amounts provided for in this part.
1.2 Accrual of Dividends. Dividends on each
share of Preferred Stock shall be cumulative from the
date of issuance of such share of Class A Preferred
Stock, whether or not at the time such dividend shall
accrue or become due or at any other time there shall
be profits, surplus or other funds of the Corporation
legally available for the payment of dividends.
Dividends shall accrue on each share of Class A
Preferred Stock (at the rate and in the manner
prescribed by Sections 1.2, 1.3 and 2.4) from and
including the date of issuance of such share to and
including the date on which either (a) payment equal to
the Redemption Price of such share (as defined in
Section 2.4) shall have been paid in the manner
prescribed in Section 5.3 or (b) such share shall be
converted into shares of Common Stock, as set forth in
Part 3. For purposes of this Section, the date on
which the Corporation shall initially issue any share
of Class A Preferred Stock shall be deemed to be the
"date of issuance" of such share regardless of how many
times transfer of such share shall be made on stock
records maintained by or for the Corporation and
regardless of the number of certificates which may be
issued to evidence such share (whether by reason of
transfers of such share or for any other reason).
1.3 Payment of Dividends. Dividends shall
accrue on each share of Class A Preferred Stock
(computed on a daily basis on the basis of a 360 day
year) at the rate of 8.5% per annum of the Liquidation
Value (as defined in Section 4.1). Dividends shall be
payable on Class A Preferred Stock quarterly on the
first day of each January, April, July and October
beginning January 1, 1988 and each such day is herein
called a "Dividend Payment Date". On each Dividend
Payment Date all dividends which shall have accrued on
each share of Class A Preferred Stock then outstanding
during the quarter year ending upon the day immediately
preceding such Dividend Payment Date shall be deemed to
become "due" for all purposes of this Section
regardless of whether the Corporation shall be able or
legally permitted to pay such dividend on such Dividend
Payment Date. If any dividend on any share shall for
any reason not be paid at the time such dividend shall
become due, such dividend in arrears shall be paid as
soon as payments of same shall be permissible under the
provisions of the General Corporation Law of the State
of Delaware.
Until such dividend in arrears is paid,
dividends shall continue to accrue on shares of Class A
Preferred Stock but the percentage rate expressed
herein shall be applied to the Liquidation Value
thereof plus all dividends in arrears thereon
(including dividends computed pursuant to this
sentence). Notwithstanding anything to the contrary
contained herein, if any dividend on any share shall
not be paid at the time such dividend shall become due,
at the option of the Company, such dividend may be paid
at any time and from time to time, in whole or in part,
in fully paid and nonassessable shares of Common Stock
of the Corporation valued at the Fair Market Value
thereof as determined in accordance with the provisions
of Section 1.5.
1.4 Distribution of Partial Dividend
Payments. If at any time the Corporation shall pay
less than the total amount of dividends due on
outstanding Class A Preferred Stock at the time of such
payment, such payment shall be distributed among the
holders of Class A Preferred Stock so that an equal
amount shall be paid with respect to each outstanding
share of Class A Preferred Stock.
1.5 Definition of Fair Market Value.
(a) Fair Market Value ("FMV"), for the
purposes of this Part 1, shall mean the market price of
shares of Common Stock of the Corporation if a trading
market exists for the Corporation's shares or the fair
market value of the Common Stock, as ascertained in
accordance with the procedure set forth in Section
1.5(b), if no trading market then exists; provided,
however, that appropriate adjustment shall be made (to
the nearest $.01 per share) to reflect mergers,
recapitalizations, stock splits, combinations or other
similar changes.
(b) If at any time pursuant to the
terms of this Section 1.5 it becomes necessary to
determine the FMV as defined in Subsection 1.5(a)
pursuant to this Subsection 1.5(b), then holder(s) of
shares of Class A Preferred Stock who are entitled to
receive such dividend payments in shares of Common
Stock as set forth in Section 1.3 (the "Holder(s)") and
the Corporation, within ten (10) business days of
notice by the Corporation electing to pay such
dividends in shares of Common Stock at the FMV, shall
notify the other party of its selection of a nationally
recognized investment banking firm as that term is
understood in the investment banking industry (an
"Investment Bank") to deliver an opinion as to the FMV
of such securities. In the event that either party
fails to notify the other party of its selection of an
Investment Bank
within such specified time period, the calculation of
the FMV by the Investment Bank nominated by the other
party shall be determinative and binding on both
parties. The FMV shall be the fair market value of such
securities in the aggregate which shall be determined
by the Investment Banks taking into account all of the
relevant factors and circumstances existing at the time
of such determination. In the event that the two
Investment Banks so selected are unable to agree upon
the fair market value of the securities in question
within thirty (30) days following their selection,
then, unless the difference between the fair market
value ascertained by both such Investment Banks is
greater than 20% per share, the FMV shall be the
arithmetic mean of the two fair market values so
ascertained by the Investment Banks. In the event that
the difference between the fair market values
ascertained by such Investment Banks is greater than
20% per share, the two Investment Banks shall, within
ten (10) days of its engagement, without consultation
with the other two Investment Banks, deliver its
opinion as to the FMV, and the FMV shall be
conclusively calculated in accordance with the
following formula:
Market Price = 2A + B + C
4
where A is the FMV ascertained by the third Investment
Bank and B and C are the FMVs ascertained by each of
the two Investment Banks chosen earlier.
Each of the three Investment Banks shall
be engaged by the Holder(s) and the Corporation. The
Corporation shall pay, in the aggregate, one-half of
the fees and expenses of the Investment Banks, and the
Holder(s) shall pay, in the aggregate, one-half of the
fees and expenses of the Investment Banks, in
proportion to the number of shares of Common Stock to
be issued to each of them.
1.6 Definition of Market Price. Market
Price shall mean, with respect to the Common Stock, the
daily closing prices for the Common Stock of the
Corporation (if a trading market shall exist) for the
twenty (20) consecutive trading days commencing five
(5) trading days preceding the day specified in the
applicable section hereof with the closing price for
each day being the closing price reported on the
principal securities exchange upon which the Common
Stock of the Corporation is traded or, if it is not so
traded, then the average of the closing bid and asked
prices as reported by the National Association of
Securities Dealers Automated Quotation System or if not
quoted thereon, in the interdealer market on the "Pink
Sheets" of the National Quotation Bureau (excluding the
highest and lowest bids on each day there are four or
more market makers).
Part 2: Optional Redemption
2.1 Time of Election. On or after the first
day of the one hundred twenty first (121st) month
following the date of issuance of the Class A Preferred
Stock, the Corporation, at its election, may redeem all
or any shares of Class A Preferred Stock (the
"Scheduled Redemption Date").
2.2 Redeemed Class A Preferred Stock to be
Cancelled. The Corporation shall cancel each share of
Class A Preferred Stock which it shall redeem or for
any other reason acquire, and no shares of Class A
Preferred Stock which shall be redeemed or otherwise
acquired by the Corporation shall thereafter be
reissued, sold or transferred by the Corporation to any
person. The number of shares of Class A Preferred
Stock which the Corporation shall be authorized to
issue shall be deemed to be reduced by the number of
shares of Class A Preferred Stock which the Corporation
shall redeem or otherwise acquire.
2.3 Determination of Number of Each Holder's
Shares to be Redeemed. If the Corporation does not
redeem all of the outstanding shares of Class A
Preferred Stock on the Scheduled Redemption Date, the
number of shares of Calss A Preferred Stock to be
redeemed from each holder thereof shall be determined
by multiplying the total number of shares of Class A
Preferred Stock to be redeemed by a fraction, the
numerator of which shall be the total number of shares
of Class A Preferred Stock held by such holder and the
denominator of which shall be the total number of
Shares of Class A Preferred Stock outstanding, except
that in situations to which Section 2.4(b) hereof
applies, the Corporation shall not repurchase the last
share of Class A Preferred Stock held by any holder.
2.4 Redemption Price.
(a) For each share of Class A Preferred
Stock which shall be redeemed by the Corporation
pursuant to this Part 2, the Corporation shall be
obligated to pay to the holder of such share an amount
(herein called the "Redemption Price") for such share
equal to $29.34 per share. The Corporation shall be
obligated to pay on any Redemption Date both the
Redemption Price for each share and all dividends which
shall have accrued (computed on a daily basis) on each
share to and including the Redemption Date and which
shall not previously have been paid. Such payments
which the Corporation shall be obligated to make on any
Redemption Date shall be deemed to become "due" for all
purposes of this Part 2 regardless of whether paid on
such Redemption Date.
(b) If for any reason the Corporation
is prohibited from paying accrued unpaid dividends on
shares of Class A Preferred Stock being redeemed from
any holder, then such accrued unpaid dividends shall be
added in equal amounts per share to the Liquidation
Value of the shares of Class A Preferred Stock
remaining outstanding in the hands of such holder;
provided, that in no event shall the Corporation redeem
the last share of Class A Preferred Stock (the "Last
Share") held by any holder until the Corporation shall
have paid to such holder all accrued unpaid dividends
on all Class A Preferred Stock held by such holder at
any time. The shares of Class A Preferred Stock
remaining outstanding after any redemption (including
the Last Share), and including the accrued unpaid
dividends thereon, shall continue to earn cumulative
dividends at the rate and in the manner prescribed in
Section 1.3.
(c) Each holder of Class A Preferred
Stock shall be entitled to receive on or at any time
after any Redemption Date the full Redemption Price,
plus accrued unpaid dividends, for each share of Class
A Preferred Stock held by such holder which the
Corporation shall be obligated to redeem on the
Scheduled Redemption Date upon surrender by such holder
to the Corporation at one of its share transfer
agencies, or in the event that at that time there is no
such agency, then at the Corporation's principal
office, of the certificate representing such share of
Class A Preferred Stock duly endorsed in blank or
accompanied by an appropriate form of assignment duly
endorsed in blank. After the payment by the
Corporation in the manner required by Section 5.3 of
the full Redemption Price for any Class A Preferred
Stock, plus accrued unpaid dividends except as
otherwise provided in Section 2.4(b), all rights of the
holder of such Stock shall (whether or not the
certificate representing such share of Class A
Preferred Stock shall have been surrendered for
cancellation) cease and terminate with respect to such
share of Class A Preferred Stock.
2.5 Allocation of Partial Redemption
Payments Among Holders of Class A Preferred Stock. If
at any time the Corporation shall not be able to pay
the full Redemption Price for all shares which the
Corporation shall have become obligated to redeem at or
prior to such time, each holder of shares of Class A
Preferred Stock shall have the right to have redeemed
by the Corporation a number of such holder's shares
equal to the product derived by multiplying the total
number of shares of Class A Preferred Stock which the
Corporation shall be able to redeem at such time by a
fraction, the numerator of which shall be the total
number of shares of Class A Preferred Stock which the
Corporation shall have become obligated to redeem from
such holder at or prior to such time (but which the
Corporation shall not have redeemed at or prior to such
time) and the denominator of which shall be the total
number of shares of Class A Prefcerred Stock which the
Corporation shall have become obligated to redeem from
all holders of Class A Preferred Stock at or prior to
such time (but which the Corporation shall not have
redceemed at or prior to such time).
Part 3: Conversion
3.1 Right to Convert.
(a) The shares of Class A Preferred
Stock, at the option of the respective holders thereof,
may at any time, and from time to time, be converted
into fully paid and nonassessable shares of Common
Stock of the Corporation at the "Conversion Rate"
provided for in subsection 3.1(g) below.
(b) So long as any shares of Class A
Preferred Stock shall be outstanding, the Corporation
will not make any share distribution on its shares of
Common Stock unless the Corporation, by proper legal
action, shall have authorized and reserved an amount of
shares equal to the amount thereof which would have
been declared upon the shares of Common Stock into
which such shares of Class A Preferred Stock might have
been converted, and the Corporation shall, out of such
additional shares so authorized and reserved on account
of such share distribution, upon the conversion of any
shares of Class A Preferred Stock, deliver with any
shares of Common Stock into which shares of Class A
Preferred Stock are converted, but without additional
consideration therefor, such number of shares of Common
Stock as would have been deliverable to the holders of
the Common Stock into which such shares of Class A
Preferred Stock had been so converted had such shares
of Common Stock been outstanding at the time of such
share distribution. For the purpose of this Section
3.1, a share distribution shall be a dividend payable
only in shares of Common Stock of the Corporation of
the same class as the present authorized shares of
Common Stock. This shall not limit the right of the
Corporation, however, to declare and pay any dividends
whether in cash, shares, or otherwise, except as
specifically otherwise provided in this Article FOURTH.
(c) In case of any combination or
change of the shares of Class A Preferred Stock or of
the shares of Common Stock into a different number of
shares of the same or any other class or classes, or in
case of any consolidation or merger of the Corporation
with or into another corporation, or in case of any
sale or conveyance to another corporation of the
property of the Corporation as an entirety or
substantially as an entirety, the Conversion Rate shall
be appropriately adjusted so that the rights of the
holders of shares of Class A Preferred Stock and of the
shares of Common Stock will not be diluted as a result
of such combination, change, consolidation, merger,
sale or conveyance. Adjustments in the rate of
conversion shall be calculated to the nearest one-tenth
of a share.
(d) So long as any shares of Class A
Preferred Stock are outstanding, the Corporation shall
reserve and keep available out of its duly authorized
but unissued shares for the purpose of effecting the
conversion of the shares of Class A Preferred Stock
such number of its duly authorized shares of Common
Stock and other securities as shall from time to time
be sufficient to effect the conversion of all
outstanding shares of Class A Preferred Stock.
(e) Any dividends accrued on any shares
of Class A Preferred Stock from the preceding Dividend
Payment Date to the date of conversion shall be payable
to the holder of record of such shares immediately
prior to its conversion. In the event that any
dividends on the outstanding shares of Common Stock
shall have been declared prior to, and shall be payable
subsequent to, the conversion of such shares of Class A
Preferred Stock, such dividends shall not be payable on
any shares of Common Stock into which such shares of
Class A Preferred Stock shall have been converted.
(f) In the event that the Corporation
shall at any time or from time to time offer to the
holders of the shares of Common Stock any rights to
subscribe for shares or any other securities of the
Corporation, each holder of record of the shares of
Class A Preferred Stock at the time at which the record
is taken of the holders of shares of Common Stock
entitled to receive such rights shall be entitled to
subscribe for and purchase, at the same price at which
such shares or other securities are offered to the
holders of the shares of Common Stock and on the same
terms, the number of such shares or the amount of such
other securities for which such holder would have been
entitled to subscribe if he had been the holder of
record at that time of the number of shares of Common
Stock into which his shares of Class A Preferred Stock
were convertible (pursuant to the provisions hereof) at
such record time.
(g) The initial "Conversion Rate",
subject to adjustment as provided above, shall be six
shares of Common Stock for each share of Class A
Preferred Stock.
3.2 Surrender of Certificates. Any holder
of shares of Class A Preferred Stock desiring to
exercise the right of conversion herein provided shall
surrender to the Corporation at one of its share
transfer agencies, or in the event that at that time
there is no such agency, then at the principal office
of the Corporation, the certificate or certificates
representing the shares of Class A Preferred Stock so
to be converted, duly endorsed in blank for transfer or
accompanied by properly executed instruments for the
transfer thereof, together with a written request for
the conversion thereof. The Corporation shall execute
and deliver, at the Corporation's expense, a new
certificate or certificates representing the shares of
Common Stock into which the shares of Class A Preferred
Stock have been converted and, if applicable, a new
certificate or certificates representing the balance of
the shares of Class A Preferred Stock formerly
represented by the surrendered certificate or
certificates which, at the holder's request, shall not
have been converted into shares of Common Stock. The
Corporation shall not be required to issue fractions of
shares of Common Stock upon conversion of the shares of
Class A Preferred Stock. In the event any fractional
interest in a share of Common Stock shall be
deliverable upon the conversion of any share of Class A
Preferred Stock, the Corporation shall, if surplus is
available, purchase such fractional interest for an
amount in cash equal to the current FMV of such
fractional interest.
Part 4: Liquidation.
4.1 Rights of Holders of Class A Preferred
Stock. In the event of any voluntary or involuntary
liquidation (whether complete or partial), dissolution
or winding up of the Corporation, the holders of Class
A Preferred Stock shall be entitled to be paid out of
the assets of the Corporation available for
distribution to its stockholders, whether from capital,
surplus or earnings, an amount in cash equal to the sum
of $29.34 per share plus any amounts payable pursuant
to Section 2.4(b) (the "Liquidation Value"), plus all
unpaid dividends accrued thereon to the date of final
distribution. No distribution shall be made on any
Junior Securities (as defined in Section 5.1) by reason
of any voluntary or involuntary liquidation (whether
complete or partial), dissolution or winding up of the
Corporation unless each holder of any share of Class A
Preferred Stock shall have received all amounts to
which such holder shall be entitled under this Section
4.1.
4.2 Allocation of Liquidation Payments Among
Holders of Class A Preferred Stock. If upon any
dissolution, liquidation (whether complete or partial),
or winding up of the Corporation, the assets of the
Corporation available for distribution to holders of
Class A Preferred Stock (hereinafter in this Section
4.2 called the "Total Amount Available") shall be
insufficient to pay the holders of outstanding Class A
Preferred Stock the full amounts to which they shall be
entitled under Section 4.1, each holder of Class A
Preferred Stock shall be entitled to receive an amount
equal to the product derived by multiplying the Total
Amount Available by a fraction, the numerator of which
shall be the number of shares of Class A Preferred
Stock held by such holder and the denominator of which
shall be the total number of shares of Class A
Preferred Stock then outstanding.
Part 5: Additional Provisions Governing
Class A Preferred Stock.
5.1 Seniority Over Junior Securities. No
dividend shall be paid on any Junior Securities, no
distribution of cash or property of any kind (other
than Junior Securities) shall be made for any reason
(including but not limited to any voluntary or
involuntary dissolution, winding up, or complete or
partial liquidation of the Corporation) by the
Corporation or any subsidiary with respect to any
Junior Securities, and no redemption or other
acqujisition of any Junior Securities shall be made
directly or indirectly by the Corporation if, when the
payment of any such dividends, distribution, redemption
or acquisition is to be made: (i) any dividend which
shall have become due on any share of Class A Preferred
Stock shall remain unpaid (except unpaid dividends
added to the Liquidation Value of Class A Preferred
Stock pursuant to Section 2.4), or (ii) any other
payment or distribution on or with respect to any
shares of Class A Preferred Stock under the terms
hereof which shall have been due from the Corporation
at such time shall not have been made in full. The
term "Junior Securities" shall mean any equity security
of any kind which the Corporation shall at any time
issue or be authorized to issue other than Class A
Preferred Stock.
5.2 Voting Rights. Class A Preferred Stock
shall not have any voting rights or powers except as
required by the General Corporation Law of Delaware.
5.3 Method of Payments. Any payment at any
time due with respect to any share of Class A Preferred
Stock (including but not limited to any payment of any
dividend due on such share, the payment of the
Redemption Price for such share, and any payment due on
such share under Part 4) shall be made by means of a
check to the order of the record holder shown on the
Corporation's records, mailed by first class mail.
5.4 Amendment and Waiver. No change in the
provisions of this Part 5 of this Article FOURTH of
this Certificate of Incorporation affecting any
interests of the holders of shares of Class A Preferred
Stock shall be binding or effective unless such change
shall have been approved in writing by the holders of
at least 51% of the shares of Class A Preferred Stock
outstanding at the time such change shall be made,
provided that no such change shall, without the prior
written consent of the holders of an aggregate of at
least 80% of the shares of Class A Preferred Stock then
outstanding, be made in the applicable dividend rate.
5.5 Registration of Transfer of Class A
Preferred Stock. The Corporation will keep at one of
its share transfer agencies, or in the event that at
that time there is no such agency, then in its
principal office, a register for the registration of
the Class A Preferred Stock. Upon the surrender of any
certificate representing shares of Class A Preferred
stock at such agency or the Corporation's principal
office, the Corporation will, at the request of the
registered holder of such certificate, execute and
deliver, at the Corporation's expense, a new
certificate or certificates in exchange representing
the number of shares of Class A Preferred Stock
represented by the surrendered certificate. Each such
new certificate shall be registered in such name and
shall represent such number of Class A Preferred Shares
as shall be requested by the holder of the surrendered
certificate, shall be substantially identical in form
to the surrendered certificate, and the shares of Class
A Preferred Stock represented by such new certificate
shall earn cumulative dividends from the date to which
dividends shall have been paid on the shares
represented by the surrendered certificate or
certificates.
5.6 Replacement. Upon receipt by the
Corporation of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or
mutilation of any certificate evidencing one or more
shares of Class A Preferred Stock (an affidavit of the
registered holder without bond being satisfactory for
this purpose) the Corporation, at its expense, will
execute and deliver in lieu of such certificate, a new
certificate of like kind, representing the number of
shares of Class A Preferred Stock which shall have been
represented by such lost, stolen destroyed or mutilated
certificate, dated and earning cumulative dividends
from the date to which dividends shall have been paid
on such lost, stolen, destroyed or mutilated
certificate.
Part 6: Additional Preferred Stock.
6.1 Authority of Board of Directors. Shares
of Additional Preferred Stock may be issued from time
to time in series or otherwise and the Board of
Directors of the Corporation is hereby authorized,
subject to the limitations provided by law, to
establish and designate the series, if any, of the
Additional Preferred Stock, to fix the number of shares
constituting any such series, and to fix the voting
powers, designations, and relative, participating,
optional, conversion, redemption and other rights of
the shares of Additional Preferred Stock or series
thereof, the qualifications, limitations and
restrictions thereof, and to increase and to decrease
the number of shares of Additional Preferred Stock or
shares constituting any such series. The authority of
the Board of Directors of the Corporation with respect
to shares of Additional Preferred Stock or any series
thereof shall included but shall not be limited to the
authority to determine the following:
(a) The designation of any series.
(b) The number of shares initially
constituting any such series.
(c) The increase, and the decrease to a
number not less than the number of the outstanding
shares of any such series, of the number of shares
constituting such series theretofore fixed.
(d) The rate or rates and the times at
which dividends on the shares of Additional Preferred
Stock or any series thereof shall be paid, and whether
or not such dividends shall be cumulative, and, if such
dividends shall be cumulative, the date or dates from
and after which they shall accumulate.
(e) Whether or not the shares of
Additional Preferred Stock or series thereof shall be
redeemable, and, if such shares shall be redeemable,
the terms and conditions of such redemption, including
but not limited to the date or dates upon or after
which such shares shall be redeemable and the amount
per share which shall be payable upon such redemption,
which amount may vary under different conditions and at
different redemption dates.
(f) The amount payable on the shares of
Additional Preferred Stock or series thereof in the
event of the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; provided,
however, that the holders of shares ranking senior to
other shares shall be entitled to be paid, or to have
set apart for payment, not less than the liquidation
value of such shares before the holders of shares of
the Common Stock or the holders of any other series of
preferred stock ranking junior to such shares.
(g) Whether or not a sinking fund shall
be provided for the redemption of the shares of
Additional Preferred Stock or series thereof, and, if
such a sinking fund shall be provided, the terms and
conditions thereof.
(h) Whether or not a purchase fund
shall be provided for the shares of Additional
Preferred Stock or series thereof, and, if such a
purchase fund shall be provided, the terms and
conditions thereof.
(i) Whether or not the shares of
Additional Preferred Stock or series thereof shall have
conversion privileges, and, if such shares shall have
conversion privileges, the terms and conditions of
conversion, including but not limited to any provisions
for the adjustment of the conversion rate or the
conversion price.
(j) Any other relative rights,
preferences, qualifications, limitations and
restrictions.
II. COMMON STOCK
All shares of Common Stock shall be identical
and shall entitle the holders thereof to the same
rights and privileges.
Part 1: Dividends
1.1 Dividends. When and as dividends are
declared upon the Common Stock, whether payable in
cash, in property or in securities of the Corporation,
the holders of Common Stock shall be entitled to share
equally, share for share, in such dividends.
1.2 Dissolution. In the event of any
dissolution, liquidation or winding up of the affairs
of the Corporation, either voluntarily or
involuntarily, the holders of shares of Common Stock
shall be entitled, after payment or provision for
payment of the debts and other liabilities of the
Corporation and the amounts to which the holders of any
outstanding preferred shares, including outstanding
shares of Class A Preferred Stock, shall be entitled in
accordance with I. PREFERRED STOCK, Part 1, Section 1.3
of this Article FOURTH as respects the Class A
Preferred Stock or the provisions of a certificate of
designation with respect to any class or series of
Additional Preferred Stock which may then be
outstanding, to share ratably in the remaining assets
of the Corporation.
1.3 Voting Rights. Except as otherwise
provided herein or by law, the holders of the Common
Stock shall be entitled to one vote per share on all
matters upon which Stockholders are entitled to vote.
IN WITNESS WHEREOF, the undersigned have executed
this Certificate of Amendment of Certificate of
Incorporation on the 29th day of February, 1996, and
affirm that the statements contained herein are true
under the penalty of perjury.
/s/ Richard F. Moldin
Richard F. Moldin,President
/s/ William R. Griffith
William R. Griffith, Secretary