Exhibit 3.5
CERTIFICATE OF DESIGNATION
OF
SERIES C JUNIOR CONVERTIBLE REDEEMABLE PREFERRED STOCK
OF
AVERY COMMUNICATIONS, INC.
Avery Communications, Inc., a Delaware corporation, DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors of said
corporation by virtue of its Certificate of Incorporation, as amended, and in
accordance with Section 151 of the General Corporation Law of the State of
Delaware, said Board of Directors has duly adopted a resolution providing for
the issuance of a series of Preferred Stock, par value $0.01 per share,
designated as Series C Junior Convertible Redeemable Preferred Stock, which
resolution reads as follows:
"BE IT RESOLVED, that the Board of Directors (the "Board of Directors") of
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Avery Communications, Inc., a Delaware corporation (the "Corporation"), hereby
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authorizes the issuance of a series of the Corporation's Preferred Stock, par
value $0.01 per share ("Preferred Stock"), and fixes its designation, powers,
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preferences and relative, participating, optional, voting or other special
rights, and qualifications, limitations and restrictions thereof, as follows:
Section 1. Designation. The distinctive serial designation of said
series shall be "Series C Junior Convertible Redeemable Preferred Stock"
("Series C"). Each share of Series C shall be identical in all respects with
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all other shares of Series C except as to the dates from and after which
dividends thereon shall be cumulative.
Section 2. Number of Shares. The number of shares in Series C shall
initially be 340,000, which number may from time to time be increased or
decreased (but not below the total number thereof then outstanding) by the Board
of Directors. Shares of Series C that are redeemed, purchased or otherwise
acquired by the Corporation or converted into Common Stock shall be cancelled
and shall revert to authorized but unissued shares of Preferred Stock
undesignated as to series.
Section 3. Dividends. The holders of shares of Series C shall be
entitled to receive, when, as and if declared by the Board of Directors, but
only out of funds legally available therefor, cumulative cash dividends at the
annual rate of $0.12 per share, and no more, payable quarterly on the first days
of January, April, July and October, respectively, in each year with respect to
the quarterly dividend period (or portion thereof) ending on the day preceding
such respective dividend payment date, to holders of record on the respective
date, not more than sixty nor less than ten days preceding such dividend payment
date, fixed for such purpose by the Board of Directors in advance of payment of
each particular dividend.
Dividends on shares of Series C shall be cumulative as follows:
(i) if issued prior to the record date for the first dividend on
shares of Series C, from the date of issuance thereof;
(ii) if issued during the period commencing immediately after a
record date for a dividend on shares of Series C and ending on the
payment date for such dividend, from such dividend payment date; and
(iii) otherwise from the first day of January, April, July and October
preceding the date of issuance of such shares.
So long as any share of Series C remains outstanding, no dividend whatever
shall be paid or declared and no distribution shall be made on any junior stock,
other than a dividend payable solely in junior stock, and no shares of junior
stock shall be purchased, redeemed or otherwise acquired for consideration by
the Corporation, directly or indirectly (other than as a result of a
reclassification of junior stock, or the exchange or conversion of one share of
junior stock, in each case, for or into another share of junior stock, and other
than through the use of the proceeds of a substantially contemporaneous sale of
other shares of junior stock), unless all accrued dividends on all outstanding
shares of Series C for all past quarterly dividend periods shall have been paid
and the full dividend thereon for the then current quarterly dividend period
shall have been paid or declared and set apart for payment. The holders of a
majority of the shares of Series C outstanding at any time may waive the payment
of any or all accrued but unpaid dividends on all outstanding shares of Series
C, or may eliminate, in whole or in part, the obligation of the Corporation to
pay any or all accrued but unpaid dividends on all outstanding shares of Series
C. Subject to the foregoing, and not otherwise, such dividends (payable in
cash, stock or otherwise) as may be determined by the Board of Directors may be
declared and paid on any junior stock from time to time out of any funds legally
available therefor, and the shares of Series C shall not be entitled to
participate therein.
Section 4. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, then, before any distribution or payment shall be made to the
holders of any junior stock, the holders of shares of Series C shall be entitled
to be paid in full an amount equal to $1.00 per share, together with all accrued
dividends to such distribution or payment date whether or not earned or declared
(the "Liquidation Value"). The Series C and the Parity Preferred shall rank on
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a parity as to the receipt of the respective preferential Liquidation Values for
each such series upon the occurrence of such event. If, upon the occurrence of
such event, the assets and funds thus distributed among the holders of the
Series C and the Parity Preferred shall be insufficient to permit the payment to
such holders of the full preferential Liquidation Values payable with respect
thereto, then the entire assets and funds of the Corporation legally available
for distribution shall be distributed ratably among the holders of the Series C
and Parity Preferred in proportion to the preferential amount each such holder
is otherwise entitled to receive. If the Liquidation Value shall have been paid
in full to all holders of shares of Series C and the Parity Preferred, the
remaining assets of the Corporation shall be distributed among the holders of
junior stock, according to their respective rights and preferences and in each
case according to their respective numbers of shares. For the purposes of this
Section 4, the consolidation or merger of the Corporation with any other
corporation shall not be deemed to constitute a liquidation, dissolution or
winding up of the Corporation.
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Section 5. Conversion Rights. The holders of shares of Series C shall
have conversion rights as follows (the "Conversion Rights"):
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(a) Right to Convert. Each share of Series C shall be convertible,
at the option of the holder thereof, at any time after the date of issuance
of such share at the office of the Corporation or any transfer agent for
such stock, into such number of fully paid and nonassessable shares of
Common Stock of the Corporation as is determined by dividing $1.00 by the
Current Conversion Price applicable to such share, determined as
hereinafter provided, in effect on the date the certificate is surrendered
for conversion. The price at which shares of Common Stock shall be
deliverable upon conversion of shares of the Series C (the "Stated
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Conversion Price") shall initially be $2.50 per share of Common Stock. The
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Stated Conversion Price shall be adjusted from and after the Original Issue
Date as hereinafter provided. The Stated Conversion Price at any time in
effect or, in the case of any such adjustment, such Stated Conversion Price
as most recently so adjusted, is herein called the "Current Conversion
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Price."
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(b) Automatic Conversion. Each share of Series C shall automatically
be converted into shares of Common Stock at the Current Conversion Price
upon the earlier of (i) the date specified by vote or written consent or
agreement of holders of at least two-thirds (2/3) of the shares of Series C
then outstanding, or (ii) immediately upon the closing of the sale of the
Corporation's Common Stock in a firm commitment, underwritten public
offering registered under the Securities Act of 1933, as amend (the
"Securities Act"), other than a registration relating solely to a
transaction under Rule 145 under the Securities Act (or any successor
thereto) or to an employee benefit plan of the Corporation, at a public
offering price (prior to underwriters' discounts and expenses) equal to or
exceeding $5.00 per share of Common Stock (as adjusted for any stock
dividends, combinations or splits with respect to such shares) and the
aggregate proceeds to the Corporation or any selling stockholders, or both
(after deduction for underwriters' discounts and expenses relating to the
issuance, including, without limitation, fees of the Corporation's counsel)
of which exceed $7,000,000.
(c) Mechanics of Conversion. Before any holder of Series C shall be
entitled to convert the same into shares of Common Stock, such holder shall
surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer agent for such stock, and
shall give written notice to the Corporation at such office that such
holder elects to convert the same and shall state therein the name or names
in which such holder wishes the certificate or certificates for shares of
Common Stock to be issued. The Corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Series C, a
certificate or certificates for the number of shares of Common Stock to
which such holder shall be entitled as aforesaid. Such conversion shall be
deemed to have been made immediately prior to the close of business on the
date of surrender of the shares of Series C to be converted, and the person
or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on such date.
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(d) Adjustments to Current Conversion Price for Stock Dividends and
for Combinations or Subdivisions of Common Stock. In the event that the
Corporation at any time or from time to time after the Original Issue Date
shall declare or pay, without consideration, any dividend on the Common
Stock payable in Common Stock or in any right to acquire Common Stock for
no consideration, or shall effect a subdivision of the outstanding shares
of Common Stock into a greater number of shares of Common Stock (by stock
split, reclassification or otherwise than by payment of a dividend in
Common Stock or in any right to acquire Common Stock), or in the event the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common
Stock, then the Current Conversion Price in effect immediately prior to
such event shall, concurrently with the effectiveness of such event, be
proportionately decreased or increased, as appropriate. In the event that
the Corporation shall declare or pay, without consideration, any dividend
on the Common Stock payable in any right to acquire Common Stock for no
consideration, then the Corporation shall be deemed to have made a dividend
payable in Common Stock in an amount of shares equal to the maximum number
of shares issuable upon exercise of such rights to acquire Common Stock.
(e) Adjustments for Reclassification and Reorganization. If at any
time after the Original Issue Date the Common Stock issuable upon
conversion of the Series C shall be changed into the same or a different
number of shares of any other class or classes of stock, whether by capital
reorganization, reclassification or otherwise, the Current Conversion Price
then in effect shall, concurrently with the effectiveness of such
reorganization or reclassification, be proportionately adjusted so that the
Series C shall be convertible into, in lieu of the number of shares of
Common Stock which the holders would otherwise have been entitled to
receive, a number of shares of such other class or classes of stock
equivalent to the number of shares of Common Stock that would have been
subject to receipt by the holders upon conversion of the Series C
immediately before that change.
(f) Reorganizations, Mergers, Consolidations or Sales of Assets. If
at any time or from time to time after the Original Issue Date there is a
capital reorganization or reclassification of the capital stock of the
Corporation (other than a recapitalization, subdivision, combination,
reclassification, exchange or substitution of shares provided for elsewhere
in this Section 5) or a merger, consolidation or sale of all or
substantially all of the assets of the Corporation, as a part of and as a
condition to such capital reorganization or reclassification, merger,
consolidation or sale of assets provision shall be made so that the holders
of the Series C shall thereafter be entitled to receive upon conversion of
the Series C the number of shares of stock or other securities or property
of the Corporation to which a holder of the number of shares of Common
Stock deliverable upon conversion of the Series C would have been entitled
on such capital reorganization or reclassification, merger, consolidation
or sale of assets, subject to adjustment in respect of such stock or
securities by the terms thereof. In any such case, appropriate adjustment
shall be made in the application of the provisions of this Section 5 with
respect to the rights of the holders of Series C after the capital
reorganization, merger, consolidation or sale of assets to the end that the
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provisions of this Section 5 (including adjustment of the Current
Conversion Price then in effect and the number of shares issuable upon
conversion of the Series C) shall be applicable after that event and be as
nearly equivalent as practicable.
(g) No Impairment. The Corporation will not, by amendment of its
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 5 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 C against impairment.
(h) Certificates as to Adjustments. Upon the occurrence of each
adjustment or readjustment of any Current Conversion Price pursuant to this
Section 5, the Corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and prepare
and furnish to each holder of Series C a certificate executed by the
Corporation's President or Chief Financial Officer 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 C, furnish or cause to
be furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Current Conversion Price for such
series of Preferred Stock at the time in effect, and (iii) the number of
shares of Common Stock and the amount, if any, of other property which at
the time would be received upon the conversion of the Series C.
(i) Notices of Record Date. In the event that the Corporation shall
propose at any time after the Original Issue Date: (i) to declare any
dividend or distribution upon its Common Stock, whether in cash, property,
stock or other securities, whether or not a regular cash dividend and
whether or not out of earnings or earned surplus; (ii) to offer for
subscription pro rata to the holders of any class or series of its stock
any additional shares of stock of any class or series or other, rights;
(iii) to effect any reclassification or recapitalization of its Common
Stock outstanding involving a change in the Common Stock; or (iv) to merge
or consolidate with or into any other corporation, or sell, lease or convey
all or substantially all of its assets, or to liquidate, dissolve or wind
up; then, in connection with each such event, the Corporation shall send to
the holders of Series C:
1. at least twenty (20) days' prior written notice of the date on
which a record shall be taken for such dividend, distribution or
subscription rights (and specifying the date on which the holders of
Common Stock shall be entitled thereto) or for determining rights to
vote, if any, in respect of the matters referred to in (iii) and (iv)
above; and
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2. in the case of the matters referred to in (iii) and (iv)
above, at least twenty (20) days' prior written notice of the date
when the same shall take place (and specifying the date on which the
holders of Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon the
occurrence of such event).
(j) Issue Taxes. The Corporation shall pay any and all issue and
other taxes that may be payable in respect of any issue or delivery of
shares of Common Stock on conversion of Series C pursuant hereto; provided,
however, that the Corporation shall not be obligated to pay any transfer
taxes resulting from any transfer requested by any holder in connection
with any such conversion.
(k) Reservation of 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 shares of the Series C, such number of its shares of
Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series C; 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 the
Series C, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be
sufficient for such purpose, including, without limitation, engaging in
best efforts to obtain the requisite stockholder approval of any necessary
amendment to the Certificate of Incorporation of the Corporation.
(l) Fractional Shares. No fractional share shall be issued upon the
conversion of any share or shares of Series C. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one
share of Series C 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 fair market
value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors).
(m) Notices. Any notice required by the provisions of this Section 5
to be given to the holders of shares of Series C shall be deemed given if
deposited in the United States mail, postage prepaid, or if sent by
facsimile or delivered personally by hand or nationally recognized courier
and addressed to each holder of record at such holder's address or
facsimile number appearing in the records of the Corporation.
(n) Meaning of "Common Stock". For the purpose of this Section 5,
the term "Common Stock" shall include any stock of any class or series of
the Corporation which has no preference or priority in the payment of
dividends or in the distribution of assets in the
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event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation which is not subject to redemption by the
Corporation. However, shares issuable upon conversion of shares of Series C
shall include only shares of the class designated as Common Stock as of the
Original Issue Date of shares of Series C or shares of the Corporation of
any classes or series resulting from any reclassification or
reclassifications thereof and which have no preference or priority in the
payment of dividends or in the distribution of assets in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and which are not subject to redemption by the Corporation,
provided that if at any time there shall be more than one such resulting
class or series, the shares of each such class and series then so issuable
shall be substantially in the proportion which the total number of shares
of such class and series resulting from all such reclassifications bears to
the total number of shares of all such classes and series resulting from
all such reclassifications.
(o) Postponement of Adjustments; Calculations. Any adjustment in
the conversion price otherwise required by this Section 5 to be made may be
postponed if such adjustment (plus any other adjustments postponed pursuant
to this Section 5 and not theretofore made) would not require an increase
or decrease of more than 1% in such price. All calculations hereunder shall
be made to the nearest cent or to the nearest 1/100th of a share, as the
case may be.
(p) Tax Adjustments. The Board of Directors may make such
adjustments in the conversion price, in addition to those required by this
Section 5, as shall be determined by the Board of Directors to be advisable
in order to avoid taxation so far as practicable of any dividend of stock
or stock rights or any event treated as such for Federal income tax
purposes to the recipients. The Board of Directors shall have the power to
resolve any ambiguity or correct any error in this Section 5, and its
action in so doing shall be final and conclusive.
(q) Adjustments Applicable to New Securities. In the event that any
time, as a result of an adjustment made pursuant to the provisions hereof,
the holder of any shares of Series C thereafter surrendered for conversion
shall become entitled to receive any shares of capital stock of the
Corporation other than Common Stock, thereafter the number of such other
shares so receivable upon conversion of such shares of Series C shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common
Stock contained in Section 5 with respect to the Common Stock shall apply
on like terms to any such other shares.
(r) Accountants' Certificate. The certificate of any independent
firm of public accountants of recognized standing selected by the Board of
Directors shall be presumptive evidence of the correctness of any
computation made under this Section 5.
Section 6. Voting Rights. The holders of shares of Series C shall not
have any voting rights except as from time to time required by law.
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Section 7. Conditional Mandatory Redemption.
(a) Increase in Stockholders' Equity. Beginning in 1998 and
continuing from year to year thereafter, the Corporation's consolidated
stockholders' equity as at December 31, 1996 (the "Beginning Stockholders'
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Equity"), as set forth on the Corporation's audited consolidated balance
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sheet as at such date, shall be compared to the Corporation's consolidated
stockholders' equity as at the last day of each fiscal year of the
Corporation (in each case, the "Ending Stockholders' Equity"), in each case
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as set forth on the Corporation's audited consolidated balance sheet as at
such dates (each an "Ending Balance Sheet"). At such time as the
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difference obtained by subtracting the Beginning Stockholders' Equity from
the Ending Stockholders' Equity shall equal or exceed $7,000,000.00, then,
in such event, the Corporation shall redeem all the then outstanding shares
of the Series C on or before the September 30 (or, if the fiscal year end
of the Corporation not be December 31, then on or before the 270th calendar
day) next following the date of an Ending Balance Sheet on which the Ending
Stockholders' Equity exceeds the Beginning Stockholders' Equity by
$7,000,000.00. The date fixed by the Corporation for such redemption is
hereinafter referred to as the "Redemption Date."
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(b) Redemption Price. The redemption price (the "Redemption Price")
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of each share of Series C shall be equal to such shares's Liquidation Value
on the Redemption Date.
(c) Notice of Redemption. At least 10 and not more than 60 days
prior to the Redemption Date written notice shall be mailed, first class
postage prepaid, to each holder of record (at the close of business on the
business day next preceding the day on which notice is given) of the shares
of the Series C to be redeemed, at the address last shown on the records of
the Corporation for such holder, notifying such holder of the redemption to
be effected, specifying the number of shares to be redeemed from such
holder, the Redemption Date, the Redemption Price, the place at which
payment may be obtained and calling upon such holder to surrender to the
Corporation, in the manner and at the place designated, such holder's
certificate or certificates representing the shares to be redeemed (the
"Redemption Notice"), but no failure to mail such notice or any defect
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therein or in the mailing thereof shall affect the validity of the
proceedings for such redemption except as to any holder to whom the
Corporation failed to mail such notice or whose notice was defective. Any
notice mailed in the manner herein provided shall be conclusively presumed
to have been duly given whether or not such holder receives such notice.
(d) Payment of Redemption Price. Except as provided in Section 7, on
or after the Redemption Date, each holder of shares of Series C to be
redeemed shall surrender to the Corporation the certificate or certificates
representing such shares, in the manner and at the place designated in the
Redemption Notice, and properly endorsed in blank for transfer or
accompanied by a proper instrument of assignment or transfer in blank and
bearing any necessary transfer tax stamps affixed thereto and cancelled,
and thereupon the Redemption Price of such shares shall be payable to the
order of the person whose name appears on such certificate or certificates
as the owner thereof and each surrendered certificate shall be
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cancelled. In the event less than all the shares represented by such
surrendered certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares.
(e) Termination of Rights. From and after the Redemption Date,
unless there shall have been a default in payment of the Redemption Price,
and notwithstanding that any certificate representing any shares so called
for redemption shall not have been surrendered, the dividends thereon shall
cease to accrue and all rights of the holders of shares of Series C
designated for redemption in the Redemption Notice as holders of Series C
(except the right to receive the Redemption Price without interest upon
surrender of their certificate or certificates) shall cease with respect to
such shares, and such shares shall not thereafter be transferred on the
books of the Corporation or be deemed to be outstanding for any purpose
whatsoever.
(f) Set Aside of Redemption Price. On or prior to each Redemption
Date, the Corporation shall irrevocably set aside the Redemption Price of
all shares of Series C designated for redemption in the Redemption Notice
and not yet redeemed as a trust fund for the benefit of the respective
holders of the shares designated for redemption and not yet redeemed, with
irrevocable instructions and authority to pay the Redemption Price for such
shares to their respective holders on or after the Redemption Date upon
receipt of notification from the Corporation that such holder has
surrendered such holder's share certificate or certificates to the
Corporation pursuant to Section 7 above. As of the Redemption Date, the
irrevocable setting aside of the Redemption Price shall constitute full
payment of the shares to their holders, and from and after the Redemption
Date the shares so called for redemption shall be redeemed and shall be
deemed to be no longer outstanding, and the holders thereof shall cease to
be stockholders with respect to such shares and shall have no rights with
respect thereto except the rights to receive payment of the Redemption
Price of the shares, without interest, upon surrender of their certificates
therefor. Such instructions shall also provide that any moneys set aside
by the Corporation pursuant to this Section 7 for the redemption of shares
thereafter converted into shares of the Corporation's Common Stock pursuant
to Section 5 hereof prior to the Redemption Date shall be returned to the
Corporation forthwith upon such conversion. The balance of any moneys set
aside by the Corporation pursuant to this Section 7 remaining unclaimed at
the expiration of two (2) years following the Redemption Date shall
thereafter be returned to the Corporation upon its request expressed in a
resolution of its Board of Directors.
(g) Cancellation of Shares. All shares of the Series C redeemed or
otherwise acquired by the Corporation shall be cancelled and retired and
shall not be reissued.
(h) Compliance with Law. Notwithstanding any other provision hereof,
the Corporation shall not be required to redeem any shares of Series C if
the funds of the Corporation legally available for redemption of shares of
Series C on any Redemption Date are insufficient to redeem the total number
of shares of Series C to be redeemed on such date, or if the redemption of
all the shares of Series C would otherwise be in violation of any
applicable law. In the event that the funds of the Corporation legally
available for
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redemption of shares of Series C on any Redemption Date are insufficient to
redeem the total number of shares of Series C to be redeemed on such date,
or that the redemption of all the shares of Series C would otherwise be in
violation of any applicable law, the Corporation, at its option, may redeem
such number of shares of Series C as it may legally redeem, and the
redemption of such shares shall be redeemed pro rata on the Redemption
Date. All shares of Series C not redeemed on the Redemption Date shall be
redeemed as soon as the Corporation may practicably redeem the shares of
Series C.
Section 8. Senior Preferred Stock Permitted. The Corporation may, at
any time or from time to time, authorize and issue shares of Preferred Stock in
series that are senior to, or rank on parity with, the Series C, and nothing
contained herein shall limit in any manner whatsoever the authority of the Board
of Directors to fix the designation, powers, preferences and relative,
participating, optional, voting or other special rights, and qualifications,
limitations and restrictions thereof, any one or all of which may rank senior
to, or on parity with, the Series C.
Section 9. Definitions. As used herein with respect to Series C, the
following terms shall have the following meanings:
(a) Accrued Dividends. The term "accrued dividends," with respect to
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any share of any class or series, shall mean an amount computed at the
annual dividend rate for the class or series of which the particular share
is a part, from the date on which dividends on such share became cumulative
to and including the date to which such dividends are to be accrued, less
the aggregate amount of all dividends theretofore paid thereon.
(b) Junior Stock. The term "junior stock" shall mean the Common
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Stock, and any other series of Preferred Stock of the Corporation, or any
other class or series of the capital stock of the Corporation, authorized
or issued after the date on which this Certificate is filed that is junior
to and over which the Series C has preference and priority in the payment
of dividends and in the payment of amounts in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation.
(c) Original Issue Date. The term "Original Issue Date" shall mean
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the date on which a share of Series C was first issued.
(d) Parity Preferred. The term "Parity Preferred" shall mean the
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Series A Junior Convertible Redeemable Preferred Stock of the Corporation
and the Series B Junior Convertible Redeemable Preferred Stock of the
Corporation.
(e) Person. The term "person" shall mean any individual,
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corporation, partnership, joint venture, joint stock association, business
trust and other business entity, trust, unincorporated organization,
governmental agency or authority or any other form of entity.
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(f) Senior Preferred. The term "Senior Preferred" shall mean any
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series of Preferred Stock that is senior to and that has preference over
the Series C in the payment of dividends and in the payment of amounts in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation.
Section 10. Other Rights. The shares of Series C shall not have any
powers, preferences or relative, participating, optional or other special
rights, or qualifications, limitations or restrictions thereof, other than as
set forth herein.
IN WITNESS WHEREOF, Avery Communications, Inc. has caused this Certificate
to be signed by Thomas M. Lyons, its President, this 15th day of November, 1996.
Avery Communications, Inc.
By
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Thomas M. Lyons
President
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