EXHIBIT 3.2 CERTIFICATE OF DESIGNATION
OF
SERIES A-1 PREFERRED STOCK OF
MIRAVANT MEDICAL TECHNOLOGIES
(pursuant to Section 151 of the Delaware General Corporation Law)
DAVID E. MAI and JOSEPH E. NIDA certify that:
1. They are the President and Secretary, respectively, of MIRAVANT MEDICAL
TECHNOLOGIES, a Delaware corporation (the "Corporation").
2. The Corporation is authorized to issue THIRTY MILLION (30,000,000)
shares of preferred stock.
3. The following resolutions were duly adopted by the Board of Directors:
WHEREAS, the Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") of the Corporation provides for a class of its
authorized stock known as preferred stock, comprising THIRTY MILLION
(30,000,000) shares, par value $0.01;
WHEREAS, the Board of Directors of the Corporation is authorized to
determine the rights, preferences, privileges and restrictions, including the
dividend rights, dividend rate, voting rights, conversion rights, rights and
terms of redemption and liquidation preferences of any wholly unissued series of
preferred stock and the number of shares constituting any series and the
designation thereof, of any of them;
WHEREAS, the Corporation desires to issue one series of preferred stock, to
be known as "Series A-1 Preferred Stock," and contemplates issuing additional
series of preferred stock, to be known as "Series A-2 Preferred Stock" and
"Series A-3 Preferred Stock" pursuant to the Securities Purchase Agreement,
between the Corporation and Advanced Cardiovascular Systems, Inc. ("ACS"), dated
July 1, 2004 (the "Series A Purchase Agreement"). The Series A-1 Preferred
Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock are
collectively referred to as the "Series A Preferred Stock"; and
WHEREAS, it is the desire of the Board of Directors of the Corporation,
pursuant to its authority as aforesaid, to determine and fix the rights,
preferences, privileges, restrictions and other matters relating to the Series
A-1 Preferred Stock.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby
provide for the issuance of the Series A-1 Preferred Stock and does hereby fix
and determine the rights, preferences, privileges, restrictions and other
matters relating to the Series A-1 Preferred Stock as follows:
1. Designation. The series of preferred stock shall consist of 1,112,966
shares designated and known as "Series A-1 Preferred Stock."
2. Voting.
(a) The holders of the Series A Preferred Stock shall be entitled to notice
of all stockholder meetings in accordance with the Corporation's bylaws, and
except as provided in the Certificate of Incorporation, any Certificate of
Designation of the Corporation, or as required by the Delaware General
Corporation Law, the holders of the Series A Preferred Stock shall be entitled
to vote on all matters submitted to the stockholders for a vote, voting together
with the holders of the Common Stock as a single class, with each share of
Series A Preferred Stock entitled to one vote for each share of Common Stock
into which the Series A Preferred Stock may be converted. This provision for
determination of the number of votes to which each holder of Series A Preferred
Stock is entitled shall also apply in cases in which the holders of Series A
Preferred Stock have the right to vote as a separate class.
(b) The Corporation shall not, without the affirmative vote or written
consent of the holders of at least two-thirds (2/3) of the then outstanding
Series A Preferred Stock, voting together as a separate class:
(i) repurchase any shares of capital stock (except for the repurchase
of shares of capital stock from directors, employees and consultants
pursuant to approval by the Board of Directors);
(ii) authorize, create (by reclassification or otherwise) or issue, or
obligate itself to issue, any other equity security, including any other
security convertible into or exercisable for any equity security, ranking
senior to or having a preference over the Series A Preferred Stock or
ranking on a parity therewith as to rights, preferences or privileges,
including, without limitation, as to voting, dividends or the distribution
of assets upon liquidation;
(iii) declare or pay dividends on or make any distribution on account
of the Corporation's Common Stock or Preferred Stock;
(iv) increase or decrease the number of authorized shares of Series A
Preferred Stock;
(v) alter or amend the rights, privileges, powers, preferences or
limitations of the Series A Preferred Stock by amendment of the
Corporation's Certificate of Incorporation, merger, consolidation or
otherwise;
(vi) sell, lease, license or otherwise dispose of all or substantially
all of its assets, or consolidate with or merge into any other corporation
or entity, or permit any other corporation or entity to consolidate or
merge into it, or enter into a plan of exchange with any other corporation
or entity, unless following such consolidation, merger or exchange the
stockholders of this Corporation immediately prior to such consolidation,
merger or exchange own a majority of the equity of the combined entity or
such disposition, consolidation, merger or exchange has been approved by at
least two-thirds (2/3) of the Board of Directors;
(vii) liquidate, dissolve, wind-up the Corporation or seek relief
under the provisions of the bankruptcy or any insolvency laws, including
without limitation, voluntary dissolution, winding-up of its business, or
the making of a creditors arrangement, or the cessation of all or a
substantial part of the Corporation's business, unless such action has been
approved by at least two-thirds (2/3) of the Board of Directors; or
(viii) sell or grant an exclusive license not in the ordinary course
of business to, or transfer of, all or substantially all of the material
intellectual property of the Corporation or its subsidiaries related to the
Corporation's and its subsidiaries' core technology or core products unless
such action has been approved by at least two-thirds (2/3) of the Board of
Directors.
3. Dividends. In the event that the Corporation declares or pays any
dividends upon the Corporation's capital stock (whether payable in cash,
securities or other property), the Corporation shall also declare and pay to the
holders of the Series A Preferred Stock at the same time that it declares and
pays such dividends to the holders of any capital stock of the Corporation, the
dividends which would have been declared and paid with respect to the Common
Stock based on the number of shares into which a share of Series A Preferred
Stock would be convertible on the record date for such dividend, or if no record
date is fixed, the date as of which the record holders of the Corporation's
capital stock entitled to such dividends shall be determined by the Board.
4. Liquidation, Dissolution or Winding Up.
(a) In the event of any: (i) liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary; (ii) acquisition of the
Corporation by another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger,
consolidation or similar transaction of the Corporation with or into any other
corporation or entity, but excluding any merger effected exclusively for the
purpose of changing the domicile of the Corporation); or (iii) sale of all or
substantially all of the assets of the Corporation, in any case in which
transaction under clause (ii) or (iii) above the Corporation's stockholders
immediately prior to such transaction own immediately after such transaction
less than 50% of the voting power of the surviving or acquiring entity (each a
"Liquidation Event"), all assets and funds of the Corporation legally available
for distribution shall be distributed to the holders of the Common Stock and the
Series A Preferred Stock in the following order of priority:
(i) First, ratably among the holders of the Series A Preferred Stock
(as though all shares of Series A Preferred Stock were converted to Common
Stock pursuant to the provisions hereof) until each holder of Series A
Preferred Stock has received the preferential amount equal to the per share
purchase amount of each share of Series A Preferred Stock (each a
"Liquidation Preference" and collectively, the "Liquidation Preferences"),
plus all accrued and unpaid dividends thereon to the extent earned or
declared pursuant to Section 3 above. The per share purchase amount of the
Series A-1 Preferred Stock is $2.70;
(ii) Second, after payment to the holders of the Series A Preferred
Stock of the amounts specified in Section 4(a)(i) above, ratably among the
holders of the Common Stock. Shares of Series A Preferred Stock shall not
be entitled to be converted into shares of Common Stock in order to
participate in any distribution (including without limitation a Liquidation
Event), or series of distributions, as shares of Common Stock, without
first foregoing participation in the distribution, or series of
distributions, as shares of Preferred Stock.
(b) The dollar amounts specified in Section 4(a) shall be equitably
adjusted in the event of any stock splits, stock dividends or similar capital
modifications affecting the Common Stock or the Series A Preferred Stock after
the filing of this Certificate of Designation. No adjustment to any Conversion
Price (as defined hereinafter) pursuant to this Certificate of Designation shall
otherwise alter the above Liquidation Preferences.
(c) Insofar as any distribution pursuant to Section 4(a) consists of
property other than cash, the value thereof shall, for purposes of the
provisions of Section 4(a), be the fair value at the time of such distribution,
as determined in good faith by the Board of Directors.
5. Conversion.
(a) Upon the earliest of (i) twenty-four months from the effective date of
the Series A Purchase Agreement, (ii) the initiation of the Phase IIb clinical
trial involving PDT for cardiovascular applications (the Corporation will
provide each holder of Series A Preferred Stock at least twenty (20) days
written notice prior to the initiation of the Phase IIb clinical trial), and
(iii) approval of a Liquidation Event by the Board of Directors, each holder of
the then outstanding shares of Series A Preferred Stock, may elect, at any time
prior to or at the occurrence of and upon compliance with the provisions of
Section 5(c) below as to surrender thereof, to convert each share of Series A
Preferred Stock into such number of fully paid and non-assessable shares of
Common Stock as is determined by dividing the applicable Liquidation Preference
by the applicable Conversion Price determined as hereinafter provided, in effect
at the time of conversion and then multiplying such quotient by each share of
Series A Preferred Stock to be converted. The Conversion Price at which shares
of Common Stock shall be deliverable upon conversion of the Series A-1 Preferred
Stock without the payment of any additional consideration by the holder thereof
shall at the time of the filing of this Certificate initially be $2.70 (the
"Series A-1 Conversion Price" together with any future conversion prices for the
Series A-2 and Series A-3 Preferred Stock, the "Conversion Prices"). Each
initial Conversion Price shall be subject to adjustment, in order to adjust the
number of shares of Common Stock into which the applicable series of Series A
Preferred Stock is convertible, as hereinafter provided.
(b) The Conversion Price in effect at the time shall automatically be
adjusted such that each Conversion Price will be divided by two (2) if a written
audit provided to the Corporation by an independent accounting firm, paid for by
ACS, or the financial statements of the Corporation reflect that the Corporation
is not using the proceeds from the sale of the securities of the Corporation
pursuant to the Series A Purchase Agreement solely for ongoing working capital
needs of Miravant Cardiovascular, Inc. ("MCI") as necessary to complete the
projects that are subject to the Collaboration Agreement, dated July 1, 2004
between the Corporation and ACS. The audit rights (i) are available upon ACS
providing the Corporation with five (5) days notice prior to the date of an
audit that ACS is in good faith contemplating converting shares of Series A
Preferred Stock into Common Stock and (ii) may be conducted only two (2) times
per year. ACS shall provide the Corporation with the draft audit report for its
review. The Conversion Price may be adjusted pursuant to this Section 5(b) only
once and will remain the Conversion Price unless otherwise adjusted pursuant to
the terms of this Certificate of Designation.
(c) To convert any or all of its Series A Preferred Stock into Common
Stock, the holder shall surrender the certificate or certificates evidencing
such Series A Preferred Stock, duly endorsed or assigned to the Corporation,
accompanied by a written notice that the holder elects to convert such Series A
Preferred Stock, stating therein the name or names in which the holder wishes
the certificate or certificates for shares of Common Stock to be issued. As soon
as practicable after the surrender of such certificates and subject to
compliance with applicable securities laws, there shall be issued and delivered
to such holder, or to the holder's nominee or nominees, a certificate or
certificates for the number of shares of Common Stock to which the holder shall
be entitled, together with cash, if any, in lieu of any fraction of a share as
provided in Section 5(f) below. Such conversion shall be deemed to have been
made as of the date of such surrender of the certificate or certificates for the
Series A Preferred Stock to be converted, and on and after such date the person
or persons entitled to receive the shares of Common Stock issued upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock.
(d) Any Series A Preferred Stock which at any time has been converted shall
be restored to the status of authorized but unissued shares of preferred stock
and shall in no circumstances be reissued as Series A Preferred Stock, and the
Corporation may from time to time take such appropriate action as may be
necessary to reduce the authorized Series A Preferred Stock accordingly,
including (assuming no shares of Series A Preferred Stock are outstanding)
amending the Certificate of Incorporation to eliminate therefrom any statement
of rights, preferences, privileges and restrictions relating to the Series A
Preferred Stock.
(e) The Corporation shall at all times reserve and keep available out of
its authorized Common Stock, solely for issuance upon the conversion of Series A
Preferred Stock as herein provided, such number of shares of Common Stock as
shall from time to time be issuable upon the conversion of all outstanding
Series A Preferred Stock.
(f) Upon any conversion, at the election of the Corporation, fractional
shares shall not be issued but any fractions shall be adjusted by payment in
cash by the Corporation on the basis of the market price of the Common Stock at
the close of business on the date of conversion. For purposes hereof, market
price shall be determined as follows:
(i) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such an exchange, the market
value shall be the last reported sale price of the Common Stock on such
exchange on the date of conversion or, if no such sale is made on such day,
the arithmetic mean of the highest bid and lowest asked prices for such day
on such exchange; or
(ii) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the market value shall be, in the case of securities
which are not designated as "National Market" securities, the arithmetic
mean of the highest bid and lowest asked prices, and in the case of
securities which are designated as "National Market" securities, the last
reported sales price, in each case as quoted on The Nasdaq Stock Market on
the date of conversion; or
(iii) If the security is not so listed or admitted to unlisted trading
privileges and bid and asked prices are not reported, the current market
value shall be determined in such reasonable manner as may be prescribed
from time to time by the Board of Directors of the Corporation.
(g) In case the Corporation shall propose at any time to take any action
described in Sections 6(a)-(d) below, then, in each such case, the Corporation
shall mail to the holders of record of Series A Preferred Stock at their last
known post office addresses as shown by the Corporation's records a statement,
signed by an officer of the Corporation, with respect to the proposed action,
setting forth such facts with respect thereto as shall be reasonably necessary
to inform the holders of Series A Preferred Stock as to the effect of such
action upon their conversion rights. Such statement shall be mailed at least
fifteen (15) days prior to the date of the taking of such action.
6. Adjustments; Stock Dividends; Reclassification; Reorganization Merger.
(a) If the Corporation increases or decreases the number of its issued and
outstanding shares of Common Stock, or changes in any way the rights and
privileges of such shares, by means of (i) the payment of a stock dividend or
the making of any other distribution on such shares payable in its Common Stock,
(ii) a subdivision of shares, (iii) a consolidation or combination of shares or
(iv) a reclassification or recapitalization involving its Common Stock, then the
Conversion Prices in effect at the time of such action and the number of shares
of Common Stock into which the applicable series of Series A Preferred Stock is
then convertible, along with the voting rights set forth in Section 2(a) above,
shall be adjusted to be the same as they would have been if such Series A
Preferred Stock had been converted immediately prior to the occurrence of the
event at issue and the shares of Common Stock into which the Series A Preferred
Stock was convertible immediately prior to the event at issue had been issued
and outstanding at the time of such event.
(b) If the Corporation declares a dividend payable in money on its Common
Stock and at substantially the same time offers to the holders of Common Stock a
right to purchase new shares of Common Stock from the proceeds of such dividend
or for an amount substantially equal to such dividend, then the holders of
Series A Preferred Stock shall have the same subscription rights that such
holders would have been entitled to if such holders had converted all of the
Series A Preferred Stock into Common Stock immediately prior to such grant, and
the Corporation shall notify the holders of Series A Preferred Stock of such
right concurrently with notice to the holders of Common Stock of their
subscription right.
(c) If at any time the Corporation grants to the holders of Common Stock
any right to subscribe pro rata for additional securities of the Corporation,
whether Common Stock, convertible securities, or other classifications, or for
any other securities or interests that a holder of Series A Preferred Stock
would have been entitled to subscribe for if, immediately prior to such grant,
such holder had converted Series A Preferred Stock into Common Stock, and if
such action by the Corporation does not result in a readjustment of the
Conversion Prices under any other subsection of this Section 6, then the holders
of Series A Preferred Stock shall have the same subscription rights that such
holders would have been entitled to if such holders had converted all of the
Series A Preferred Stock into Common Stock immediately prior to such grant, and
the Corporation shall notify the holders of Series A Preferred Stock of such
right concurrently with notice to the holders of Common Stock of their
subscription right.
(d) In the event the Corporation shall declare a distribution payable in
securities of other persons, evidences of indebtedness issued by the Corporation
or other persons, assets (excluding cash dividends) or options or rights not
referred to in Section 6(a) above, then, in each such case for the purpose of
this Section 6(d), the holders of Series A Preferred Stock shall be entitled to
a proportionate share of any such distribution as though they were the holders
of the number of shares of Common Stock of the Corporation into which their
shares of Series A Preferred Stock are convertible as of the record date fixed
for the determination of the holders of Common Stock of the Corporation entitled
to receive such distribution.
(e) Upon the occurrence of any of the following events, the Corporation
shall cause any effective provision to be made so that each holder of Series A
Preferred Stock shall have the right thereafter, by converting such Series A
Preferred Stock, to acquire the kind and amount of shares of stock and other
securities, and property and interests, as would be issued or payable with
respect to or in exchange for the number of shares of Common Stock of the
Corporation into which the Series A Preferred Stock is then convertible as if
such Series A Preferred Stock had been converted into Common Stock immediately
prior to such event: (i) the reclassification, capital reorganization or other
similar change of outstanding shares of Common Stock of the Corporation, other
than as described and provided for in Section 6(a) above; (ii) the merger or
consolidation of the Corporation with one or more other corporations or other
entities, other than a merger with a subsidiary or affiliate pursuant to which
the Corporation is the surviving corporation and the outstanding shares of
Common Stock, including the shares of Common Stock into which the Series A
Preferred Stock is then convertible pursuant hereto, are not affected, or (iii)
the spin-off of assets, a subsidiary, or an affiliated entity, or the sale,
lease, or exchange of a significant portion of the Corporation's assets, in a
transaction pursuant to which the Corporation's stockholders are to receive
securities or other interests in a successor entity. Any such provision made by
the Corporation for adjustments with respect to the Series A Preferred Stock
shall be as nearly equivalent to the adjustments otherwise provided for herein
as is reasonably practicable.
(f) If any Liquidation Event is proposed, in addition to the rights of the
holders of the Series A Preferred Stock set forth in Section 4 above, the rights
set forth herein shall be applicable. The Corporation shall, as a condition
precedent to the consummation of any such Liquidation Event, deliver written
notice to each holder of Series A Preferred Stock no later than twenty (20) days
prior to the earliest of (i) consummation of such Liquidation Event or (ii) the
date on which the books of the Corporation shall close or the date on which a
stockholder vote to approve such Liquidation Event shall take place or the last
date on which stockholders are entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such Liquidation Event. If, as
a result of such a Liquidation Event, stockholders of the Corporation are to
receive securities or other interests of a successor entity, the provisions of
Section 6(e) above shall apply. However, if the result of such a Liquidation
Event is that stockholders of the Corporation are to receive money or property
other than securities or other interest in a successor entity, each holder of
Series A Preferred Stock shall be entitled to convert such shares into Common
Stock prior to the consummation of such Liquidation Event, and, with respect to
any shares of Common Stock so acquired, shall be entitled to all of the rights
of the other holders of Common Stock with respect to any distribution by the
Corporation in connection with such Liquidation Event. If no successor entity is
involved and Section 6(e) does not apply, all conversion rights provided for
herein shall terminate at the close of business on the date as of which holders
of record of the Common Stock shall be entitled to participate in a distribution
of the assets of the Corporation in connection with such Liquidation Event;
provided, however, that in no event shall that date be less than ten (10) days
after delivery to the holders of Series A Preferred Stock of the written notice
described above. If the termination of conversion rights hereunder is to occur
as a result of such Liquidation Event, a statement to that effect shall be
included in that written notice. Notwithstanding the termination of conversion
rights in accordance with the foregoing, upon a Liquidation Event and
liquidation of the Corporation, each holder of Series A Preferred Stock shall be
entitled to such rights as are provided in Section 4 above. Notwithstanding any
foregoing provision, each holder of Series A Preferred Stock shall be entitled
to such rights as are provided in Section 5(a) above.
(g) The provisions of this Section 6 shall apply to successive events that
may occur from time to time but shall only apply to a particular event if it
occurs prior to the redemption, exchange or conversion in full of the Series A
Preferred Stock either by its terms or by its conversion.
(h) Unless the context requires otherwise, whenever reference is made in
this Section 6 to the issuance or sale of shares of Common Stock, the term
"Common Stock" shall mean (i) the par value $0.01 Common Stock of the
Corporation, (ii) any other class of stock ranking on a parity with, and having
substantially similar rights and privileges as, the Corporation's par value
$0.01 Common Stock and (iii) any security convertible into either (i) or (ii).
(i) For purposes of the calculations and adjustments described in this
Section 6, shares of Common Stock owned or held at any relevant time by, or
for the account of the Corporation, in its treasury or otherwise, shall not
be deemed to be outstanding for purposes thereof.
7. Right to Invest; Share Exchange.
(a) In the event that the Corporation intends to issue to any third party
any equity interest (whether stock or securities convertible into stock or other
rights to acquire stock) in MCI, other than the issuance or sale of common stock
of MCI (or options therefor) to employees, consultants, officers and directors,
pursuant to plans or agreements approved by the Board of Directors of MCI
(collectively, the "MCI Shares"), the Corporation shall offer such MCI Shares to
ACS in accordance with this Section 7. If the Corporation shall offer any equity
interest in another entity (other than the Corporation) that utilizes the
technology for cardiovascular applications owned, used or licensed by the
Corporation or any of its affiliates, such equity interests shall be considered
MCI Shares for this purpose. The Corporation shall deliver a written notice
addressed to ACS at the post-office address as shown on the records of the
Corporation at least thirty (30) days (or fifteen (15) days if ACS or any of its
affiliates already hold any MCI Shares in the same issuing entity) prior to the
date of such offer (the "Notice") stating (i) its bona fide intention to offer
such MCI Shares, (ii) the number of MCI Shares to be offered, and (iii) the
price and terms, if any, upon which it proposes to offer such MCI Shares. ACS
shall have the right to purchase or otherwise acquire any portion of the number
of MCI Shares in an amount not to exceed the lesser of (i) 50%, of the number of
MCI Shares proposed to be sold or issued to all parties, including ACS, or (ii)
the number of MCI Shares with an aggregate per share value equal to the
aggregate Liquidation Preference, plus all accrued and unpaid dividends thereon
to the extent earned pursuant to Section 3 above (such number of MCI Shares as
elected by ACS to purchase or acquire shall be referred to as the "ACS Purchased
MCI Shares"). The per share value of the MCI Shares shall be the price at which
the MCI Shares are being offered, if any (if the MCI Shares are being offered
for no consideration, the price shall be deemed to be $0.01 per MCI Share and if
the MCI Shares are being issued in an initial public offering, the price shall
be the initial offering price per share). If ACS decides not to purchase the MCI
Shares within twenty (20) days (or ten (10) days if ACS or any of its affiliates
already hold any MCI Shares in the same issuing entity) after receiving the
Notice from the Corporation of the offer of MCI Shares, the Corporation may,
during the 75-day period following the date the Notice was given, offer the MCI
Shares originally offered to ACS to any person or persons at a price not less
than, and upon terms no more favorable to the offeree than, those specified in
the Notice. If the Corporation does not enter into an agreement for the sale of
such MCI Shares within such period, or if such agreement is not consummated
within 30 days of the execution thereof, the right of ACS to participate in the
offering, including the right to receive notice, provided by this subsection
shall be deemed to be revived and such Shares shall not be sold by the
Corporation unless first reoffered to ACS in accordance with this subsection.
(b) At the time of any offering of MCI Shares pursuant to Section 7(a)
above, including the initial public offering of MCI Shares, if ACS elects to
purchase any MCI Shares, the Corporation shall offer to exchange the shares of
Series A Preferred Stock held by ACS for such ACS Purchased MCI Shares . ACS
shall exchange such number of shares of Series A Preferred Stock with an
aggregate ACS Per Share Value (as defined below) equal to the aggregate purchase
price of the ACS Purchased MCI Shares. For number purposes of this Section 7(b),
the "ACS Per Share Value" means the greater of (i) the Liquidation Preference
per share of such Series A Preferred Stock, plus all accrued and unpaid
dividends thereon to the extent earned pursuant to Section 3 above, for such
shares or (ii) an amount equal to the market price (as defined in Section 5(f))
per share of Common Stock then issuable upon conversion of such share of Series
A Preferred Stock).
(c) On or after the date fixed for any exchange pursuant to Section 7(b)
above, ACS shall surrender the certificate or certificates evidencing such
shares to the Corporation at the place agreed upon by the Corporation and ACS
and ACS shall be entitled to receive the MCI Shares. If less than all of the
shares of Series A Preferred Stock represented by any such surrendered
certificate or certificates are exchanged, the Corporation shall issue a new
certificate for the remaining shares of Series A Preferred Stock. The provisions
of this Section 7 shall terminate upon an initial public offering of MCI Shares,
provided that the Corporation has complied with Sections 7(a) and 7(b) hereof in
connection with such offering.
(d) The rights and obligations set forth in this Section 7 may be waived
only by the affirmative consent of the holders of at least two-thirds (2/3) of
the then outstanding Series A Preferred Stock, voting together as a separate
class.
RESOLVED, FURTHER, that the Chairman, the president or any vice-president,
and the secretary or any assistant secretary, of the Corporation be and they
hereby are authorized and directed to prepare and file a Certificate of
Designation in accordance with the foregoing resolution and the provisions of
Delaware law.
[Signatures on next page]
We declare, under penalty of perjury under the laws of the State of
Delaware, that the matters set forth in this certificate are true and correct of
our own knowledge.
Date: June 30, 2004
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DAVID E. MAI,
President
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JOSEPH E. NIDA,
Secretary