Exhibit 3.9
AVERY COMMUNICATIONS, INC.
Certificate of Designations
of
Series H Convertible Preferred Stock
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 H Convertible Preferred Stock, which resolution reads as
follows:
"RESOLVED, that the Board of Directors (the "Board of Directors") of Avery
Communications, Inc., a Delaware corporation (the "Corporation"), hereby
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,
preferences and relative, participating, optional, voting or other special
rights, and qualifications, limitations and restrictions thereof, as follows:
I. Series H Convertible Preferred Stock. A series of the Preferred Stock,
designated the Series H Convertible Preferred Stock (herein the "Series H
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Preferred Stock"), is hereby established. The aggregate number of shares of the
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Series H Preferred Stock shall be 1,600,000; provided, that upon redemption,
repurchase, conversion or other reacquisition of shares of the Series H
Preferred Stock, the number of shares of such Series H Preferred Stock and the
number of shares of authorized Series H Preferred Stock shall automatically be
reduced by such number of shares that have been redeemed, repurchased or
reacquired and shall revert to authorized but unissued shares of Preferred Stock
undesignated as to series. The foregoing notwithstanding, during such period in
which shares of the Corporation's Series H Preferred Stock are outstanding, the
Corporation shall not issue other series of Preferred Stock having dividend
rights or preferences upon liquidation that are superior to the Series H
Preferred Stock. The preferences, powers, rights and privileges and the
qualifications, limitations and restrictions of the Series H Preferred Stock are
as follows:
a. Dividend Rights. The holders of the Series H Preferred Stock shall
be entitled to receive, out of any funds legally available therefor, dividends
at the rate of $0.12 per share (the "Dividend") per annum from the date of
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issuance which shall accrue quarterly in equal increments of $0.03 on January 1,
April 1, July 1 and October 1 of each year (each a "Dividend Accrual Date")
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commencing April 1, 2001, which Dividend shall be payable on the first business
day that is twenty (20) days following each such Dividend Accrual Date (each
such date being a "Dividend Payment Date") which dividends shall be payable in
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preference and priority to any payment of any cash dividend on Common Stock and
any shares of any other class or series of Preferred Stock , or any other class
or series of the capital stock of the Corporation, authorized or issued after
the date on which this Certificate of Designation is filed with the Secretary of
State of the State of Delaware, that is junior to and over which the Series H
Preferred Stock has preference and priority in the payment of dividends and in
the payment of amounts in the event
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of any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, other than outstanding shares of the Company's
Series D Preferred Stock, which have a prior right of payment or other form of
capital stock of the Corporation (such Common Stock and other stock [other than
the Series D Preferred Stock] being collectively referred to as "Junior Stock"),
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when and as declared by the Board of Directors of the Corporation. Such
dividends shall accrue and be deemed to accrue whether or not earned or
declared, and shall be cumulative so that if such dividends on the Series H
Preferred Stock shall not have been paid, or declared and set apart for payment,
the deficiency shall be fully paid or declared and set apart for payment before
any dividend shall be paid or declared or set apart for any shares of Junior
Stock and before any purchase or acquisition of any shares of Junior Stock is
made by the Corporation.
b. Liquidation Rights. In the event of the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the holders of
each share of Series H Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
shareholders, before any payment or declaration and setting apart for payment of
any amount shall be made in respect of the Junior Stock, an amount equal to One
Dollar ($1.00) per share, plus all accrued and unpaid dividends and interest on
the Series H Preferred Stock (no less and no more). If the assets of the
Corporation available for distribution to its stockholders shall be insufficient
to pay in full all amounts to which the holders of the Series H Preferred Stock
are entitled, the amount available for distribution shall be shared pro rata by
the holders of such series. For the purposes of this Section b, a merger or
consolidation of the Corporation with any other corporation or other entity in
which the corporation's shareholders do not have a controlling interest in the
surviving corporation in the merger or consolidation, or the sale, transfer or
lease of all or substantially all the Corporation's assets shall constitute and
be deemed a liquidation, dissolution, or winding up of the Corporation.
c. Voting Rights. In addition to any other vote or consent required by
the laws of the State of Delaware, the Corporation will not, without the
affirmative votes or written consent of the holders of at least sixty six and
two-thirds percent (66 2/3%) of the outstanding shares of Series H Preferred
Stock (with each share of Series H Preferred Stock being entitled to one vote):
(1) In any manner, including by amendment of its Certificate of
Incorporation or By-laws, alter or change the powers, rights, preferences or
privileges or the qualifications, limitations or restrictions of the Series H
Preferred Stock;
(2) Create, authorize or issue a new class or series (or change or
reclassify a class or series of shares with junior, subordinate or inferior
rights into a class or series of shares) having rights, preferences or
privileges prior or superior with the shares of Series H Preferred Stock in the
payment of dividends or in the payment of amounts in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, or increase the rights, preferences, privileges or number of any
class or series having rights, preferences or privileges on dissolution that are
prior, superior or on parity with those of the Series H Preferred Stock;
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(3) Increase or decrease the aggregate number of authorized shares
of Series H Preferred Stock, except for any decrease resulting from any
redemption, repurchase or other reacquisition; effect an exchange or
reclassification or create a right of exchange, of all or part of the shares of
Series H Preferred Stock into shares of another class; effect an exchange or
reclassification or create a right of exchange, of all or part of the shares of
another class or series into the shares of the Series H Preferred Stock; change
the shares of all or part of the Series H Preferred Stock into a different
number of shares of Series H Preferred Stock.
(4) Repurchase redeem or otherwise acquire any shares of the
Corporation's capital stock other than the Series H Preferred Stock if any
dividends on the Series H Preferred Stock which have accrued and are payable
remain outstanding at the time;
(5) Liquidate, dissolve or wind-up the affairs of the Corporation
or merge or consolidate the Corporation with any other entity or sell or
encumber all or substantially all of the Corporation's assets or issue in one or
a series of related transactions shares representing more than fifty percent
(50%) of the aggregate voting power of all classes and series of the
Corporation's voting stock if any dividends on the Series H Preferred Stock
which have accrued and are payable remain outstanding at the time; or
(6) Declare or pay any dividend or other distribution with respect
to Junior Stock if any dividends on the Series H Preferred Stock which have
accrued and are payable remain outstanding at the time.
d. Conversions. The holders of shares of Series H Preferred Stock
shall have the following conversion rights:
(1) Right to Convert. Subject to the terms and conditions of this
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paragraph d, the holder of any share of Series H Preferred Stock shall have the
right, at its option at any time to convert any such share of Series H Preferred
Stock into one fully paid and nonassessable share of Common Stock or, in case an
adjustment (an "Adjustment") has taken place pursuant to the further provisions
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of this paragraph d, then as last adjusted and in effect at the date any share
or shares of Series H Preferred Stock are surrendered for conversion. Such
rights of conversion shall be exercised by the holder thereof by giving written
notice that the holder elects to convert a stated number of shares of Series H
Preferred Stock into Common Stock and by surrender of a certificate or
certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the Series H
Preferred Stock) at any time during its usual business hours on the date set
forth in such notice, together with a statement of the name or names (with
address) in which the certificate or certificates for shares of Common Stock
shall be issued.
(2) Issuance of Certificates: Time Conversion Effected. Promptly
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after receipt of the written notice referred to in subparagraph d.1. and
surrender of the certificate or certificates for the share or shares of Series H
Preferred Stock to be converted, the Corporation shall issue and deliver, or
cause to be issued and delivered, to the holder, registered in such name or
names as such holder may direct, a certificate or certificates for the number of
whole shares of
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Common Stock issuable upon the conversion of such share or shares of Series H
Preferred Stock. To the extent permitted by law, such conversion shall be deemed
to have been effected as of the close of business on the date on which such
written notice shall have been received by the Corporation and the certificate
or certificates for such share or shares shall have been surrendered as
aforesaid, and at such time the rights of the holder of such share or shares of
Series H Preferred Stock shall cease, and the person or persons in whose name or
names any certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby.
(3) Fractional Shares; Dividends; Partial Conversion. No fractional
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shares shall be issued upon conversion of Series H Preferred Stock into Common
Stock and no payment or adjustment shall be made upon any conversion on account
of any cash dividends on the Common Stock issued upon such conversion. Within
thirty days after the date of each conversion, the Corporation shall, at the
Corporation's election, pay in cash an amount equal to all dividends accrued and
unpaid on the shares of Series H Convertible Preferred Stock surrendered for
conversion to the date upon which such conversion is deemed to take place as
provided in subparagraph d.2. (the "Accrued Dividend Payment"). In case the
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number of shares of Series H Preferred Stock represented by the certificate or
certificates surrendered pursuant to subparagraph d.1. exceeds the number of
shares converted, the Corporation shall, upon such conversion, execute and
deliver to the holder, at the expense of the Corporation, a new certificate or
certificates for the number of shares of Series H Preferred Stock represented by
the certificate or certificates surrendered which are not to be converted. If
any fractional share of Common Stock would, except for the provisions of the
first sentence of this subparagraph d.3., be delivered upon such conversion, the
Corporation, in lieu of delivering such fractional share, shall pay to the
holder surrendering the Series H Preferred Stock for conversion, an amount in
cash equal to the current market price of such fractional share as determined in
good faith by the Board of Directors of the Corporation.
(4) Adjustment of Price For Stock Splits and other Subdivision and
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Combinations. In case the Corporation shall at any time subdivide (by any stock
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split, stock dividend or otherwise) its outstanding shares of Common Stock into
a greater number of shares, or shall declare a dividend or make any other
distribution upon any stock of the Corporation payable in Common Stock (except
for dividends or distributions upon the Common Stock), or shall otherwise issue
Common Stock for no consideration, then the number of shares of Common Stock
into which the Series H Preferred Stock may be converted will be adjusted
appropriately.
In case the Corporation shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend or other
distribution payable in Common Stock then such record date shall be deemed to be
the date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(5) Reorganization or Reclassification. If any capital
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reorganization or reclassification of the capital stock of the Corporation shall
be effected in such a way that holders of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for Common
Stock, then, as a condition of such reorganization or reclassification,
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lawful and adequate provisions shall be made whereby each holder of a share or
shares of Series H Preferred Stock shall thereupon have the right to receive,
upon the basis and upon the terms and conditions specified herein and in lieu of
the shares of Common Stock immediately theretofore receivable upon the
conversion of such share or shares of Series H Preferred Stock, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such Common Stock immediately theretofore receivable upon
such conversion had such reorganization or reclassification not taken place, and
in any such case appropriate provisions shall be made with respect to the rights
and interests of such holder to the end that the provisions hereof (including
without limitation provisions for Adjustments) shall thereafter be applicable,
as nearly as may be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise of such conversion rights.
(6) Notice of Adjustment Upon any Adjustment, then and in each such
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case the Corporation shall give written notice thereof, by delivery in person,
certified or registered mail, return receipt requested, telecopier or telex,
addressed to each holder of shares of Series H Preferred Stock at the address of
such holder as shown on the books of the Corporation, which notice shall state
the adjustment resulting from such Adjustment, setting forth in reasonable
detail the method upon which such calculation is based.
(7) Stock to be Reserved. The Corporation will at all times reserve
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and keep available out of its authorized Common Stock, solely for the purpose of
issuance upon the conversion of Series H Preferred Stock as herein provided,
such number of shares of Common Stock as shall then be issuable upon the
conversion of all outstanding shares of Series H Preferred Stock. The
Corporation covenants that all shares of Common Stock which shall be so issued
shall be duly and validly issued and fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof. The Corporation
will take all such action as may be necessary to assure that all such shares of
Common Stock may be so issued without violation of any applicable law or
regulation, or of any requirement of any national securities exchange upon which
the Common Stock may be listed. The Corporation will not take any action which
results in any adjustment if the total number of shares of Common Stock issued
and issuable after such action upon conversion of the Series H Preferred Stock
would exceed the total number of shares of Common Stock then authorized by the
Articles of Incorporation.
(8) No Reissuance of Series H Preferred Stock. Shares of Series H
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Preferred Stock which are converted into shares of Common Stock as provided
herein shall not be reissued.
(9) Issue Tax. The issuance of certificates for shares of Common
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Stock upon conversion of Series H Preferred Stock shall be made without charge
to the holders thereof for any issuance tax in respect thereof, provided that
the Corporation shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any certificate
in a name other than that of the holder of the Series H Preferred Stock which is
being converted.
(10) Closing of Books. The Corporation will at no time close its
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Transfer books against the transfer of any Series H Preferred Stock or of any
shares of Common
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Stock issued or issuable upon the conversion of any shares of Series H Preferred
Stock in any manner which interferes with the timely conversion of such Series H
Preferred Stock, except as may otherwise be required to comply with applicable
securities laws.
e. Directors. In addition to the rights specified above and any other
rights provided in the Corporation's By-laws or the laws of the State of
Delaware, the holders of the Series H Preferred Stock shall have the right at
all times to elect one member to the Board of Directors of the Corporation. The
right to elect one director accorded to the holders of the Series H Preferred
Stock may be exercised either at a special meeting of the holders of Series H
Preferred Stock, or at a special meeting of the stockholders of the Corporation,
or by written consent of such holders in lieu of a meeting which such holders
shall have the right to execute from time to time irrespective of the call of
any special meeting of the stockholders. The director to be elected by the
holders of the Series H Preferred Stock shall serve for terms extending from the
date of his election and qualification until the time of the next succeeding
annual meeting of the stockholders and until his successor has been elected and
qualified. Any Director elected by the holders of the Series H Preferred Stock
may be removed during his or her term of office, without cause, by and only by
the written consent or affirmative vote of the holders of the Series H Preferred
Stock. Any vacancy in the office of a director elected by the holders of the
Series H Preferred Stock may be filled by a vote or written consent of the
holders of the Series H Preferred Stock."
IN WITNESS WHEREOF, Avery Communications, Inc. has caused this Certificate
of Designations to be signed by Scot M. McCormick, its Vice President, this 21
day of February, 2001.
AVERY COMMUNICATIONS, INC.
By: /s/ Scot M. McCormick
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Scot M. McCormick
Vice President
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