CERTIFICATE OF DESIGNATIONS
OF SERIES 4 CLASS D CONVERTIBLE PREFERRED STOCK
OF
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Perma-Fix Environmental Services, Inc. (the "Corporation"), a
corporation organized and existing under the General Corporation Law
of the State of Delaware, does hereby certify:
That, pursuant to authority conferred upon by the Board of
Directors by the Corporation's Restated Certificate of
Incorporation, as amended, and pursuant to the provisions of Section
151 of the Delaware Corporation Law, the Board of Directors of the
Corporation has adopted resolutions, a copy of which is attached
hereto, establishing and providing for the issuance of a series of
Preferred Stock designated as Series 4 Class D Convertible Preferred
Stock and has established and fixed the voting powers, designations,
preferences and relative participating, optional and other special
rights and qualifications, limitations and restrictions of such
Series 4 Class D Convertible Preferred Stock as set forth in the
attached resolutions.
Dated: June 9, 1997 PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By /s/ Louis F. Centofanti
______________________
Dr. Louis F. Centofanti
Chairman of the Board
ATTEST:
/s/ Richard T. Kelecy
____________________________
Richard T. Kelecy, Secretary
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
(the "Corporation")
RESOLUTION OF THE BOARD OF DIRECTORS
FIXING THE NUMBER AND DESIGNATING THE RIGHTS, PRIVILEGES,
RESTRICTIONS AND CONDITIONS ATTACHING TO THE
SERIES 4 CLASS C CONVERTIBLE PREFERRED STOCK
WHEREAS, the Corporation's capital includes preferred stock,
par value $.001 per share ("Preferred Stock"), which Preferred Stock
may be issued in one or more series by resolutions adopted by the
directors, and with the directors being entitled by resolution to
fix the number of shares in each series and to designate the rights,
designations, preferences and relative, participating, optional or
other special rights and privileges, restrictions and conditions
attaching to the shares of each such series;
WHEREAS, it is in the best interests of the Corporation for the
Board to create a new series from the Preferred Stock designated as
the Series 4 Class D Convertible Preferred Stock, par value $.001
per share ("Series 4 Class D Preferred Stock");
NOW, THEREFORE, BE IT RESOLVED, that the Series 4 Class D
Convertible Preferred Stock, par value $.001 (the "Series 4 Class
D Preferred Stock") of the Corporation shall consist of two thousand
five hundred (2,500) shares and no more and shall be designated as
the Series 4 Class D Convertible Preferred Stock, and the
preferences, rights, privileges, restrictions and conditions
attaching to the Series 4 Class D Preferred Stock shall be as
follows:
Part 1 - Voting and Preemptive Rights.
1.1 Voting Rights. Except as otherwise provided in Part 7 hereof
or under the General Corporation Law of the State of Delaware (the
"GCL"), the holders of the Series 4 Class D Preferred Stock shall
have no voting rights whatsoever. To the extent that under Part 7
hereof or the GCL the vote of the holders of the Series 4 Class D
Preferred Stock, voting separately as a class or series as
applicable, is required to authorize a given action of the
Corporation, the affirmative vote or consent of the holders of at
least a majority of the shares of the Series 4 Class D Preferred
Stock represented at a duly held meeting at which a quorum is
present or by written consent of a majority of the shares of Series
4 Class D Preferred Stock (except as otherwise may be required under
the GCL) shall constitute the approval of such action by the series.
To the extent that under the GCL or Part 7 hereof, the holders of
the Series 4 Class D Preferred Stock are entitled to vote on a
matter, each share of the Series 4 Class D Preferred Stock shall be
entitled one (1) vote for each outstanding share of Series 4 Class
D Preferred Stock. Holders of the Series 4 Class D Preferred Stock
shall be entitled to notice of (and copies of proxy materials and
other information sent to stockholders) for all shareholder meetings
or written consents with respect to which they would be entitled to
vote, which notice would be provided pursuant to the Corporation's
bylaws and applicable statutes.
1.2 No Preemptive Rights. The Series 4 Class D Preferred Stock
shall not give its holders any preemptive rights to acquire any
other securities issued by the Corporation at any time in the
future.
Part 2 - Liquidation Rights.
2.1 Liquidation. If the Corporation shall be voluntarily or
involuntarily liquidated, dissolved or wound up at any time when any
shares of the Series 4 Class D Preferred Stock shall be outstanding,
the holders of the then outstanding Series 4 Class D Preferred Stock
shall have a preference in distribution of the Corporation's
property available for distribution to the holders of the
Corporation's Common Stock equal to $1,000 consideration per
outstanding share of Series 4 Class D Preferred Stock, plus an
amount equal to all unpaid dividends accrued thereon to the date of
payment of such distribution ("Liquidation Preference"), whether or
not declared by the Board.
2.2 Payment of Liquidation Preferences. Subject to the provisions
of Part 6 hereof, all amounts to be paid as Liquidation Preference
to the holders of Series 4 Class D Preferred Stock, as provided in
this Part 2, shall be paid or set apart for payment before the
payment or setting apart for payment of any amount for, or the
distribution of any of the Corporation's property to the holders of
the Corporation's Common Stock, whether now or hereafter authorized,
in connection with such liquidation, dissolution or winding up.
2.3 No Rights After Payment. After the payment to the holders of
the shares of the Series 4 Class D Preferred Stock of the full
Liquidation Preference amounts provided for in this Part 2, the
holders of the Series 4 Class D Preferred Stock as such shall have
no right or claim to any of the remaining assets of the Corporation.
2.4 Assets Insufficient to Pay Full Liquidation Preference. In the
event that the assets of the Corporation available for distribution
to the holders of shares of the Series 4 Class D Preferred Stock
upon any dissolution, liquidation or winding up of the Corporation,
whether voluntary or involuntary, shall be insufficient to pay in
full all amounts to which such holders are entitled pursuant to this
Part 2, no such distribution shall be made on account of any shares
of any other class or series of Preferred Stock ranking on a parity
with the shares of this Series 4 Class D Preferred Stock upon such
dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the shares of this
Series 4 Class D Preferred Stock and shares of such other class or
series ranking on a parity with the shares of this Series 4 Class
D Preferred Stock, ratably, in proportion to the full distributable
amounts for which holders of all such parity shares are respectively
entitled upon such dissolution, liquidation or winding up.
Part 3 - Dividends.
3.1 The holders of the Series 4 Class D Preferred Stock are
entitled to receive if, when and as declared by the Board out of
funds legally available therefor, cumulative dividends, payable in
cash or Common Stock of the Corporation, par value $.001 per share
(the "Common Stock"), or any combination thereof, at the
Corporation's election, at the rate of four percent (4%) per annum
of the Liquidation Value (as defined below) of each issued and
outstanding share of Series 4 Class D Preferred Stock (the "Dividend
Rate"). The Liquidation Value of the Series 4 Class D Preferred
Stock shall be $1,000 per outstanding share of the Series 4 Class
D Preferred Stock (the "Liquidation Value"). The dividend is
payable semi-annually within seven (7) business days after each of
December 31 and June 30 of each year, commencing December 31, 1997
(each, a "Dividend Declaration Date"). Dividends shall be paid only
with respect to shares of Series 4 Class D Preferred Stock actually
issued and outstanding on a Dividend Declaration Date and to holders
of record of the Series 4 Class D Preferred Stock as of the Dividend
Declaration Date. Dividends shall accrue from the first day of the
semi-annual period in which such dividend may be payable, except
with respect to the first semi-annual dividend which shall accrue
from the date of issuance of the Series 4 Class D Preferred Stock.
In the event that the Corporation elects to pay the accrued
dividends due as of a Dividend Declaration Date on an outstanding
share of the Series 4 Class D Preferred Stock in Common Stock of the
Corporation, the holder of such share shall receive that number of
shares of Common Stock of the Corporation equal to the product of
(a) the quotient of (i) the Dividend Rate divided by (ii) the
average of the closing bid quotation of the Corporation's Common
Stock as reported on the National Association of Securities Dealers
Automated Quotation system ("NASDAQ"), or the average closing sale
price if listed on a national securities exchange, for the five (5)
trading days immediately prior to the Dividend Declaration Date (the
"Stock Dividend Price"), times (b) a fraction, the numerator of
which is the number of days elapsed during the period for which the
dividend is to be paid, and the denominator of which is 365.
Dividends on the Series 4 Class D Preferred Stock shall be
cumulative, and no dividends or other distributions shall be paid
or declared or set aside for payment on the Corporation's Common
Stock until all accrued and unpaid dividends on all outstanding
shares of Series 4 Class D Preferred Stock shall have been paid or
declared and set aside for payment.
Part 4 - Conversion. The holders of the Series 4 Class D Preferred
Stock shall have rights to convert the shares of Series 4 Class D
Preferred Stock into shares of the Corporation's Common Stock, par
value $.001 per share ("Common Stock"), as follows (the "Conversion
Rights"):
4.1 Right to Convert. The Series 4 Class D Preferred Stock shall
be convertible into shares of Common Stock, as follows:
4.1.1 Up to one thousand two hundred fifty (1,250) shares
of Series 4 Class D Preferred Stock may be converted
at the Conversion Price (as that term is defined in
Section 4.2 below) at any time on or after October
5, 1997; and,
4.1.2 Up to an additional one thousand two hundred fifty
(1,250) shares of Series 4 Class D Preferred Stock
may be converted at the Conversion Price at any time
on or after November 5, 1997.
4.2 Conversion Price. Subject to the terms hereof, as used
herein, the term Conversion Price per outstanding share of
Series 4 Class D Preferred Stock shall be the product of the
lesser of (i) the average closing bid quotation of the Common
Stock as reported on the over-the-counter market, or the
closing sale price if listed on a national securities
exchange, for the five (5) trading days immediately preceding
the date of the Conversion Notice referred to in Section 4.3
below multiplied by eighty percent (80%) or (ii) U.S. $1.6875.
Notwithstanding the foregoing, the Conversion Price shall not
be less than a minimum of $.75 per share ("Minimum Conversion
Price"), which Minimum Conversion Price shall be eliminated
from and after September 6, 1998. If any of the outstanding
shares of Series 4 Class D Preferred Stock are converted, in
whole or in part, into Common Stock pursuant to the terms of
this Part 4, the number of shares of whole Common Stock to be
issued to the holder as a result of such conversion shall be
determined by dividing (a) the aggregate Liquidation Value of
the Series 4 Class D Preferred Stock so surrendered for
conversion by (b) the Conversion Price in effect at the date
of the conversion. At the time of conversion of shares of the
Series 4 Class D Preferred Stock, the Corporation shall pay in
cash to the holder thereof an amount equal to all unpaid and
accrued dividends, if any, accrued thereon to the date of
conversion, or, at the Corporation's option, in lieu of paying
cash for the accrued and unpaid dividends, issue that number
of shares of whole Common Stock which is equal to the quotient
of the amount of such unpaid and accrued dividends to the date
of conversion on the shares of Series 4 Class D Preferred
Stock so converted divided by the Stock Dividend Price, as
defined in Section 3.1 hereof, in effect at the date of
conversion.
4.3 Mechanics of Conversion. Any holder of the Series 4 Class D
Preferred Stock who wishes to exercise its Conversion Rights
pursuant to Section 4.1 of this Part 4 must, if such shares
are not being held in escrow by the Corporation's attorneys,
surrender the certificate therefor at the principal executive
office of the Corporation, and give written notice, which may
be via facsimile transmission, to the Corporation at such
office that it elects to convert the same (the "Conversion
Notice"). In the event that the shares of Series 4 Class D
Preferred Stock are being held in escrow by the Corporation's
attorneys, no delivery of the certificates shall be required.
No Conversion Notice with respect to any shares of Series 4
Class D Preferred Stock can be given prior to the time such
shares of Series 4 Class D Preferred Stock are eligible for
conversion in accordance with the provision of Section 4.1
above, except as provided in Section 4.4. Any such premature
Conversion Notice shall automatically be null and void. The
Corporation shall, within five (5) business days after receipt
of an appropriate and timely Conversion Notice (and
certificate, if necessary), issue to such holder of Series 4
Class D Preferred Stock or its agent a certificate for the
number of shares of Common Stock to which he shall be
entitled; it being expressly agreed that until and unless the
holder delivers written notice to the Corporation to the
contrary, all shares of Common Stock issuable upon conversion
of the Series 4 Class D Preferred Stock hereunder are to be
delivered by the Corporation to a party designated in writing
by the holder in the Conversion Notice for the account of the
holder and such shall be deemed valid delivery to the holder
of such shares of Common Stock. Such conversion shall be
deemed to have been made only after both the certificate for
the shares of Series 4 Class D Preferred Stock to be converted
have been surrendered and the Conversion Notice is received by
the Corporation (or in the event that no surrender of the
Certificate is required, then only upon the receipt by the
Corporation of the Conversion Notice) (the "Conversion
Documents"), and the person or entity whose name is noted on
the certificate evidencing such shares of Common Stock
issuable upon such conversion shall be treated for all
purposes as the record holder of such shares of Common Stock
at and after such time. In the event that the Conversion
Notice is sent via facsimile transmission, the Corporation
shall be deemed to have received such Conversion Notice on the
first business day on which such facsimile Conversion Notice
is actually received. If the Corporation fails to deliver to
the holder or its agent the certificate representing the
shares of Common Stock that the holder is entitled to receive
as a result of such conversion within seven (7) business days
after receipt by the Corporation from the holder of an
appropriate and timely Conversion Notice and certificates
pursuant to the terms of this Section 4.3 ("Seven (7) Business
Day Period"), then, upon the written demand of RBB Bank
Aktiengesellschaft ("RBB Bank"), the holder of the Series 4
Class D Preferred Stock, for payment of the penalty described
below in this Section 4.3, which demand must be received by
the Corporation no later than ten (10) calendar days after the
expiration of such Seven (7) Business Day Period, the
Corporation shall pay to RBB Bank the following penalty for
each business day after the Seven (7) Business Day Period
until the Corporation delivers to the holder or its agent the
certificate representing the shares of Common Stock that the
holder is entitled to receive as a result of such conversion:
business day eight (8) - U.S. $1,000; business day nine (9) -
U.S. $2,000, and each business day thereafter an amount equal
to the penalty due on the immediately preceding business day
times two (2) until the Corporation delivers to the holder or
its agent the certificate representing the shares of Common
Stock that the holder is entitled to receive as a result of
such conversion.
4.4 Merger or Consolidation. In case of either (a) any merger or
consolidation to which the Corporation is a party
(collectively, the "Merger"), other than a Merger in which the
Corporation is the surviving or continuing corporation, or (b)
any sale or conveyance to another corporation of all, or
substantially all, of the assets of the Corporation
(collectively, the "Sale"), and such Merger or Sale becomes
effective (x) while any shares of Series 4 Class D Preferred
Stock are outstanding and prior to the date that the
Corporation's Registration Statement covering up to 1,482,000
shares of Common Stock issuable upon the conversion of the
Series 4 Class D Preferred Stock is declared effective by the
U. S. Securities and Exchange Commission or (y) prior to the
end of the restriction periods in Section 4.1, then, in such
event, the Corporation or such successor corporation, as the
case may be, shall make appropriate provision so that the
holder of each share of Series 4 Class D Preferred Stock then
outstanding shall have the right to convert such share of
Series 4 Class D Preferred Stock into the kind and amount of
shares of stock or other securities and property receivable
upon such Merger or Sale by a holder of the number of shares
of Common Stock into which such shares of Series 4 Class D
Preferred Stock could have been converted into immediately
prior to such Merger or Sale, subject to adjustments which
shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Part 4.
4.4 Adjustments to Conversion Price for Stock Dividends and for
Combinations or Subdivisions of Common Stock. If the
Corporation at any time or from time to time while shares of
Series 4 Class D Preferred Stock are issued and outstanding
shall declare or pay, without consideration, any dividend on
the Common Stock payable in Common Stock, 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 if
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 Conversion Price in
effect immediately before such event shall, concurrently with
the effectiveness of such event, be proportionately decreased
or increased, as appropriate.
4.5. Adjustments for Reclassification and Reorganization. If the
Common Stock issuable upon conversion of the Series 4 Class D
Preferred Stock 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 (other than a subdivision or combination of shares
provided for in Section 4.4 hereof), the Conversion Price then
in effect shall, concurrently with the effectiveness of such
reorganization or reclassification, be proportionately
adjusted so that the Series 4 Class D Preferred Stock shall be
convertible into, in lieu of the number of shares of Common
Stock which the holders of Series 4 Class D Preferred Stock
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 4 Class D Preferred Stock immediately before that
change.
4.6 Common Stock Duly Issued. All Common Stock which may be
issued upon conversion of Series 4 Class D Preferred Stock
will, upon issuance, be duly issued, fully paid and
nonassessable and free from all taxes, liens, and charges with
respect to the issue thereof.
4.7 Notice of Adjustments. Upon the occurrence of each adjustment
or readjustment of any Conversion Price pursuant to this Part
4, the Corporation, at its expense, within a reasonable period
of time, shall compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to
each holder of Series 4 Class D Preferred Stock a notice
setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment is based.
4.8 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 the Series
4 Class D Preferred Stock pursuant thereto; provided, however,
that the Corporation shall not be obligated to pay any
transfer taxes resulting from any transfer requested by any
holder of Series 4 Class D Preferred Stock in connection with
such conversion.
4.9 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 4 Class D Preferred Stock, 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 4 Class D Preferred stock, 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 4 Class D Preferred Stock,
the Corporation will take such corporate action as may be
necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient
for such purposes, including, without limitation, engaging in
reasonable efforts to obtain the requisite stockholder
approval of any necessary amendment to its Certificate of
Incorporation.
4.10 Fractional Shares. No fractional shares shall be issued upon
the conversion of any share or shares of Series 4 Class D
Preferred Stock. All shares of Common Stock (including
fractions thereof) issuable upon conversion of more than one
share of Series 4 Class D Preferred Stock 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 fractional share
of Common Stock, such fractional share shall be rounded up to
the nearest whole share.
4.11 Notices. Any notices required by the provisions of this Part
4 to be given to the holders of shares of Series 4 Class D
Preferred Stock shall be deemed given if deposited in the
United States mail, postage prepaid, and addressed to each
holder of record at his address appearing on the books of the
Corporation.
4.12 Business Day. As used herein, the term "business day" shall
mean any day other than a Saturday, Sunday or a day when the
federal and state banks located in the State of New York are
required or is permitted to close.
Part 5 - Redemption.
5.1 Redemption at Corporation's Option. Except as otherwise
provided in this Section 5.1, at any time, and from time to
time, after the expiration of one (1) year from the date of
the first issuance of the Series 4 Class D Preferred Stock,
the Corporation may, at its sole option, but shall not be
obligated to, redeem, in whole or in part, at any time, and
from time to time, the then outstanding Series 4 Class D
Preferred Stock at the following cash redemption prices per
share (the "Redemption Price") if redeemed during the
following periods: (a) within four (4) years from the date of
the first issuance of Series 4 Class D Preferred Stock -
$1,300 per share, if at any time during such four (4) year
period the average of the closing bid price of the Common
Stock for ten (10) consecutive trading days shall be in excess
of Four U.S. Dollars ($4.00) per share, and (b) after four (4)
years from the date of the first issuance of Series 4 Class D
Preferred Stock - $1,000 per share.
5.3 Mechanics of Redemption. Thirty (30) days prior to any date
stipulated by the Corporation for the redemption of Series 4
Class D Preferred Stock (the "Redemption Date"), written
notice (the "Redemption Notice") shall be mailed to each
holder of record on such notice date of the Series 4 Class D
Preferred Stock. The Redemption Notice shall state: (i) the
Redemption Date of such shares, (ii) the number of Series 4
Class D Preferred Stock to be redeemed from the holder to whom
the Redemption Notice is addressed, (iii) instructions for
surrender to the Corporation, in the manner and at the place
designated, of a share certificate or share certificates
representing the number of Series 4 Class D Preferred Stock to
be redeemed from such holder, and (iv) instructions as to how
to specify to the Corporation the number of Series 4 Class D
Preferred Stock to be redeemed as provided in this Part 5 and,
if the Redemption Notice is mailed to the Holder after the
first one hundred eighty (180) days from the date of issuance
of the Series 4 Class D Preferred Stock, the number of shares
to be converted into Common Stock as provided in Part 4
hereof.
5.4 Rights of Conversion Upon Redemption. If the redemption
occurs after the first one hundred eighty (180) days after the
first issuance of Series 4 Class D Preferred Stock, then, upon
receipt of the Redemption Notice, any holder of Series 4 Class
D Preferred Stock shall have the option, at its sole election,
to specify what portion of its Series 4 Class D Preferred
Stock called for redemption in the Redemption Notice shall be
redeemed as provided in this Part 5 or converted into Common
Stock in the manner provided in Part 4 hereof, except that,
notwithstanding any provision of such Part 4 to the contrary,
such holder shall have the right to convert into Common Stock
that number of Series 4 Class D Preferred Stock called for
redemption in the Redemption Notice.
5.5 Surrender of Certificates. On or before the Redemption Date
in respect of any Series 4 Class D Preferred Stock, each
holder of such shares shall surrender the required certificate
or certificates representing such shares to the Corporation in
the manner and at the place designated in the Redemption
Notice, and upon the Redemption Date, the Redemption Price for
such shares shall be made payable, in the manner provided in
Section 5.6 hereof, to the order of the person whose name
appears on such certificate or certificates as the owner
thereof, and each surrendered share certificate shall be
canceled and retired. If a share certificate is surrendered
and all the shares evidenced thereby are not being redeemed
(as described below), the Corporation shall cause the Series
4 Class D Preferred Stock which are not being redeemed to be
registered in the names of the persons or entity whose names
appear as the owners on the respective surrendered share
certificates and deliver such certificate to such person.
5.6 Payment. On the Redemption Date in respect of any Series 4
Class D Preferred Stock or prior thereto, the Corporation
shall deposit with any bank or trust company having a capital
and surplus of at least U. S. $50,000,000, as a trust fund, a
sum equal to the aggregate Redemption Price of all such shares
called from redemption (less the aggregate Redemption Price
for those Series 4 Class D Preferred Stock in respect of which
the Corporation has received notice from the holder thereof of
its election to convert Series 4 Class D Preferred Stock into
Common Stock), with irrevocable instructions and authority to
the bank or trust company to pay, on or after the Redemption
Date, the Redemption Price to the respective holders upon the
surrender of their share certificates. The deposit shall
constitute full payment for the shares to their holders, and
from and after the date of the deposit the redeemed shares
shall be deemed to be no longer outstanding, and holders
thereof shall cease to be shareholders with respect to such
shares and shall have no rights with respect thereto except
the rights to receive from the bank or trust company payments
of the Redemption Price of the shares, without interest, upon
surrender of their certificates thereof. Any funds so
deposited and unclaimed at the end of one year following the
Redemption Date shall be released or repaid to the
Corporation, after which the former holders of shares called
for redemption shall be entitled to receive payment of the
Redemption Price in respect of their shares only from the
Corporation.
Part 6 - Parity with Other Shares of Series 4 Class D Preferred
Stock and Priority.
6.1 Rateable Participation. If any cumulative dividends or return
of capital in respect of Series 4 Class D Preferred Stock are
not paid in full, the owners of all series of outstanding
Preferred Stock shall participate rateably in respect of
accumulated dividends and return of capital.
6.2 Ranking. For purposes of this resolution, any stock of any
class or series of the Corporation shall be deemed to rank:
6.2.1 Prior or senior to the shares of this Series 4
Class D Preferred Stock either as to dividends
or upon liquidation, if the holders of such
class or classes shall be entitled to the
receipt of dividends or of amounts
distributable upon dissolution, liquidation or
winding up of the Corporation, whether
voluntary or involuntary, as the case may be,
in preference or priority to the holders of
shares of this Series 4 Class D Preferred
Stock;
6.2.2 On a parity with, or equal to, shares of this
Series 4 Class D Preferred Stock, either as to
dividends or upon liquidation, whether or not
the dividend rates, dividend payment dates, or
redemption or liquidation prices per share or
sinking fund provisions, if any, are different
from those of this Series 4 Class C Preferred
Stock, if the holders of such stock are
entitled to the receipt of dividends or of
amounts distributable upon dissolution,
liquidation or winding up of the Corporation,
whether voluntary or involuntary, in proportion
to their respective dividend rates or
liquidation prices, without preference or
priority, one over the other, as between the
holders of such stock and over the other, as
between the holders of such stock and the
holders of shares of this Series 4 Class D
Preferred Stock; and,
6.2.3 Junior to shares of this Series 4 Class D
Preferred Stock, either as to dividends or upon
liquidation, if such class or series shall be
Common Stock or if the holders of shares of
this Series 4 Class D Preferred Stock shall be
entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or
winding up of the Corporation, whether
voluntary or involuntary, as the case may be,
in preference or priority to the holders of
shares of such class or series.
Part 7 - Amendment and Reissue.
7.1 Amendment. If any proposed amendment to the
Corporation's Certificate of Incorporation (the
"Articles") would alter or change the powers, preferences
or special rights of the Series 4 Class D Preferred Stock
so as to affect such adversely, then the Corporation must
obtain the affirmative vote of such amendment to the
Articles at a duly called and held series meeting of the
holders of the Series 4 Class D Preferred Stock or
written consent by the holders of a majority of the
Series 4 Class D Preferred Stock then outstanding.
Notwithstanding the above or the provisions of the GCL,
the number of authorized shares of any class or classes
of stock of the Corporation may be increased or decreased
(but not below the number of shares thereof outstanding)
by the affirmative vote of the holders of a majority of
the stock of the Corporation entitled to vote thereon,
voting together as a single class, irrespective of the
provisions of this Section 7.1 or Section 242 of the GCL.
7.2 Authorized. Any shares of Series 4 Class D Preferred
Stock acquired by the Corporation by reason of purchase,
conversion, redemption or otherwise shall be retired and
shall become authorized but unissued shares of Preferred
Stock, which may be reissued as part of a new series of
Preferred Stock hereafter created.