State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "THE SINGING MACHINE COMPANY, INC.", FILED IN THIS OFFICE ON
THE FIFTEENTH DAY OF FEBRUARY, A.D. 1994, AT 9 O'CLOCK A.M.
[STATE OF DELAWARE SEAL]
[SECRETARY'S OFFICE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
CERTIFICATE OF INCORPORATION
OF
THE SINGING MACHINE COMPANY, INC.
I, the undersigned, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST: The name of the Corporation is:
The Singing Machine Company, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is to be located at 32 Loockerman Square, Suite L-100, Dover, Kent
County, Delaware 19901. The name of the Corporation's registered agent at that
address is The Prentice-Hall Corporation, Inc., a Delaware corporation.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is l1,000,000 shares, consisting of
10,000,000 shares of Common Stock par value $0.01 per share and 1,000,000 shares
of Preferred Stock, par value $1.00 per share ("Preferred Stock"). The Board
of Directors shall have authority by resolution to issue the shares of
Preferred Stock from time to time on such terms as it may determine and to
divide the Preferred Stock into one or more series and, in connection with the
creation of any such series, to determine and fix by the resolution or
resolutions providing for the issuance of shares thereof:
(a) the distinctive designation of such series, the number of
shares which shall constitute such series, which number may be increased or
decreased (but not below the number of shares then outstanding) from time to
time by action of the Board of Directors, and the stated value thereof, if
different from the par value thereof;
(b) the dividend rate, the times of payment of dividends on the
shares of such series, whether dividends shall be cumulative, and, if so, from
what date or dates, and the preference or relation which such dividends will
bear to the dividends payable on any shares of stock of any other class or any
other series of this class;
(c) the price or prices at which, and the terms and conditions
on which, the shares of such series may be redeemed;
(d) whether or not the shares of such series shall be entitled
to the benefit of a retirement or sinking fund to be applied to the purchase or
redemption of such shares and, if so entitled, the amount of such fund and the
terms and provisions relative to the operation thereof;
(e) whether or not the shares of such series shall be
convertible into, or exchangeable for, any other shares of stock of the
Corporation or any other securities and, if so convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and any adjustments
thereof, at which such conversion or exchange may be made, and any other terms
and conditions of such conversion or exchange;
(f) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding up, or upon any
distribution of the assets, of the Corporation;
(g) whether or not the shares of such series shall have
priority over or parity with or be junior to the shares of any other class or
series in any respect, or shall be entitled to the benefit of limitations
restricting (i) the creation of indebtedness of the Corporation, (ii) the
issuance of shares of any other class or series having priority over or being on
a parity with the shares of such series in any respect, or (iii) the payment of
dividends on, the making of other distributions in respect of, or the purchase
or redemption of shares of any other class or series on a parity with or ranking
junior to the shares of such series as to dividends or assets, and the terms of
any such restrictions, or any other restriction with respect to shares of any
other class or series on a parity with or ranking junior to the shares of such
series in any respect;
(h) whether such series shall have voting rights, in addition
to any voting rights provided by law and, if so, the terms of such voting
rights, which may be general or limited; and
(i) any other powers, preferences, privileges, and relative,
participating, optional, or other special rights of such series, and the
qualifications, limitations or restrictions thereof, to the full extent now or
hereafter permitted by law.
The powers, preferences and relative, participating, option and
other special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, it any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
2
Preferred Stock shall be identical in all respects with all other shares of such
series, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall be cumulative.
FIFTH: The name and the mailing address of the sole incorporator is:
Name Mailing Address
---- ---------------
Ms. Anne Cohen Proskauer Rose Goetz & Mendelsohn
2121 Avenue of the Stars
Suite 2700
Los Angeles, California 90067
SIXTH: The number of directors of the Corporation shall be the number
from time to time fixed by, or in the manner provided in, the bylaws of the
Corporation. Elections of directors need not be by ballot unless the bylaws of
the Corporation shall so provide.
SEVENTH: In furtherance and not in limitation of the powers conferred
upon the Board of Directors by law, the Board of Directors shall have power to
make, adopt, alter, amend and repeal from time to time the bylaws of the
Corporation, subject to the right of the stockholders entitled to vote with
respect thereto to alter and repeal bylaws made by the Board of Directors.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
3
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this certificate, and to add or insert other
provisions authorized by the laws of the State of Delaware at the time in force,
in the manner now or hereafter prescribed by law, and all rights and powers
conferred herein on shareholders, directors and officers are granted subject to
this reservation.
TENTH: A director of this Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of
Delaware or (iv) for any transaction from which the director derived an improper
personal benefit. The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section and, as
provided in said section, shall advance expenses, including reasonable
attorneys' fees, of any and all such persons, and the indemnification and
advancement of expenses provided for herein shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
IN WITNESS WHEREOF, I have hereunto set my hand this 11th day of
February, 1994.
/s/ Anne Cohen
-----------------
Anne Cohen,
Sole Incorporator
4
State of Delaware
PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER, WHICH MERGES:
"THE SINGING MACHINE COMPANY, INC.", A CALIFORNIA CORPORATION,
WITH AND INTO "THE SINGING MACHINE COMPANY, INC." UNDER THE NAME OF
"THE SINGING MACHINE COMPANY, INC.", A CORPORATION ORGANIZED AND EXISTING UNDER
THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE
THIRD DAY OF MAY, A.D. 1994, AT 9 O'CLOCK A.M.
[SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
0272817
AUTHENTICATION:
DATE: 02-23-00
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 05/03/1994
944077763 - 2376345
AGREEMENT OF MERGER
-------------------
THIS AGREEMENT OF MERGER (this "Merger Agreement") is made and entered
into as of February 28, 1994, by and between THE SINGING MACHINE COMPANY, INC.,
a Delaware corporation ("TSMC"), and THE SINGING MACHINE COMPANY, INC., a
California corporation (*TSMC II").
R E C I T A L
The Boards of Directors of TSMC and TSMC II deem it advisable for the
mutual benefit of TSMC and TSMC II and their respective holders of capital stock
that TSMC II be merged with and into TSMC in accordance with the laws of the
States of Delaware and California.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto hereby agree as follows:
1. Merger. At the Effective Time of the Merger (as hereinafter
defined), TSMC II shall be merged with and into TSMC under the laws of the
States of Delaware and California (the "Merger"), whereupon the separate
existence of TSMC II shall cease and TSMC, as the surviving corporation, shall
succeed without other transfer to all the rights and properties of TSMC II and
shall be subject to all the debts and liabilities of TSMC II in the same manner
as if TSMC had incurred them in accordance with the laws of the States of
Delaware and California. (For purposes hereof, TSMC is sometimes referred to as
the "Surviving Corporation.")
2. Filing And Effective Time. TSMC shall file with the Delaware
Secretary of State and California Secretary of State copies of this Merger
Agreement and appropriate officers' certificates pursuant to Section 252 of the
Delaware corporation Law (the "Delaware Law") and Section 1108 of the
California corporations Code (the "California Code"). In lieu of filing a copy
of this Merger Agreement, TSMC may file a certificate of merger or such other
instrument as is acceptable for filing under Delaware Law or the California Code
in order to accomplish the Merger. The effective time of the Merger (the
"Effective Time") shall be the time at which the Merger Agreement and
appropriate officers, certificates shall have been filed with the Delaware
Secretary of State, and the Merger shall be consummated upon completion of such
filing.
3. Certificate Of Incorporation. Upon consummation of the Merger, the
Certificate of Incorporation of TSMC in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation.
4. Bylaws. The Bylaws of TSMC in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation.
5. Conversion of Shares. The effect on the capital stock of TSMC and
TSMC II as the constituent corporations in the Merger shall be as follows:
a. Conversion Of TSMC II Shares. At the Effective Time, each
outstanding share of TSMC II Common Stock "TSMC II Common Stock"), other than
Dissenting Shares (as hereinafter defined), shall be converted into 243.67127
shares of TSMC Common Stock, par value $0.01 per share ("TSMC Common Stock").
b. Cancellation of TSMC Common Stock. At the Effective Time, the
100 shares of TSMC Common Stock currently issued and outstanding in the name of
TSMC II shall be cancelled and retired, and no shares of TSMC Common Stock or
other securities of TSMC shall be issued in respect thereof.
c. Dissenters' Rights. Notwithstanding anything in this Merger
Agreement to the contrary, shares of TSMC II Common Stock which are issued and
outstanding immediately prior to the Effective Time and which are held by
shareholders who have not voted such shares in favor of the Merger and who have
delivered a written demand upon TSMC to purchase such shares in the manner
provided in Chapter 13 of the California Code (the "Dissenting Shares") shall
not be converted into or be exchangeable for the right to receive the
consideration provided in Paragraph 5.a hereof unless and until such holder
shall have failed to perfect or shall have effectively withdrawn or lost the
holder's right to appraisal and payment under Chapter 13 of the California Code.
If such holder shall have so failed to perfect or shall have effectively
withdrawn or lost such right, such holder's shares shall thereupon be deemed, at
the Effective Time, to have been converted into and to have become exchangeable
for the right to receive the consideration provided for in Paragraph 5.a hereof,
without any interest thereon.
d. Fractional Shares. No certificates or scrip representing
fractional shares of TSMC Common Stock shall be issued as the result of the
Merger. If the number of shares computed pursuant to Paragraph 5.a is not a
whole number, then the holder of any fraction of a share of TSMC II Common Stock
shall be entitled to payment of the fair value of such fraction
2
of a share as of the Effective Time as determined by the Board of Directors of
TSMC in its sole discretion.
e. Tender Of Shares. The conversion of shares of TSMC II Common
Stock into shares of TSMC Common Stock as provided by this Merger Agreement
shall occur automatically at the Effective Time without action by the holders
thereof. Each holder of such shares shall tender such holder's original share
certificate or certificates to TSMC or to an exchange agent designated by TSMC,
and upon receipt of such certificates, TSMC or the designated exchange agent
shall deliver and exchange therefor a new TSMC share certificate representing
the appropriate number of shares of TSMC Common Stock to which such holder shall
be entitled, as set forth above.
6. Termination. Notwithstanding the approval of this Merger Agreement
by the holders of capital stock of TSMC and TSMC II, this Merger Agreement may
be terminated at any time prior to the Effective Time by mutual agreement of the
Boards of Directors of TSMC and TSMC II. In the event of the termination of this
Merger Agreement, this Merger Agreement shall immediately become void, and there
shall be no liability on the part of any of the parties hereto or their
respective officers, directors or holders of capital stock.
7. Amendment. This Merger Agreement may be amended with the approval of
the Boards of Directors of TSMC and TSMC II at any time prior to the filing of
this Merger Agreement with the Secretary of State of Delaware or California,
provided that any amendment made subsequent to the adoption of this Merger
Agreement by the stockholders of TSMC or TSMC II shall not (a) alter or change
the amount or kind of shares and cash in lieu of fractional shares to be
received by the stockholders of TSMC II on conversion of the shares of common
stock of TSMC II, (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation or (3) alter or change any of the
terms and conditions of this Merger Agreement if such alteration or change would
adversely effect the holders of common stock of TSMC or TSMC II.
8. Governing Law. This Merger Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
resort to choice of law principles.
9. Further Assurances. Each of the parties hereto shall take or cause
to be taken all actions, and do or cause to be done all things, necessary,
proper or advisable to effectuate the Merger.
3
10. Counterparts. This Merger Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and both of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Merger
Agreement to be duly executed by their respective officers.
"TSMC" "TSMC II"
THE SINGING MACHINE COMPANY, THE SINGING MACHINE COMPANY,
INC., INC.,
a Delaware Corporation a California Corporation
By:/s/Edward Steele By:/s/Edward Steele
--------------------------- -----------------------------
Edward Steele, Edward Steele,
Chief Executive Officer Chief Executive Officer
and Treasurer and Treasurer
By:/s/Eugene B. Settler By:/s/Eugene B. Settler
--------------------------- -----------------------------
Eugene B. Settler, Eugene B. Settler,
President and Secretary President and Secretary
4
CERTIFICATE OF THE SECRETARY
OF
THE SINGING MACHINE COMPANY, INC.
(a Delaware Corporation)
I, Eugene B. Settler, the Secretary of THE SINGING MACHINE COMPANY,
INC., hereby certify that the Agreement of Merger to which this certificate is
attached, after having been first duly signed on behalf of the corporation by
the President and Secretary under the corporate seal of such corporation, was
duly approved and adopted by unanimous written consent of the stockholders on
February 28, 1994.
WITNESS my hand this 28th day of February, 1994.
By:/s/ Eugene B. Settler
----------------------------
Eugene B. Settler,
Secretary
CERTIFICATE OF THE SECRETARY
OF
THE SINGING MACHINE COMPANY, INC.
(a California Corporation)
I, Eugene B. Settler, the Secretary of THE SINGING MACHINE COMPANY,
INC., hereby certify that the Agreement of Merger to which this certificate is
attached, after having been first duly signed on behalf of the corporation by
the President and Secretary under the corporate seal of such corporation, was
duly approved and adopted by unanimous written consent of the stockholders on
February 28, 1994.
WITNESS my hand this 28th day of February, 1994
By:/s/ Eugene B. Settler
----------------------------
Eugene B. Settler,
Secretary
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "THE SINGING MACHINE COMPANY, INC.", FILED IN THIS OFFICE ON THE
NINETEENTH DAY OF JULY, A.D. 1994, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
2376345 8100 AUTHENTICATION: 7185006
944132335 DATE: 07-19-94
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE SINGING MACHINE COMPANY, INC.
THE SINGING MACHINE COMPANY, INC. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "Statute"), does hereby certify:
FIRST: That on July 11, 1994, the Board of Directors of
the Corporation, pursuant to unanimous written consent of all of its
members in lieu of holding a special meeting, adopted a resolution
setting forth a proposed amendment to the Corporation's Certificate
of Incorporation, declaring said amendment to be advisable and
resolving that said amendment be considered and voted upon by the
Corporation's stockholders. Said resolution proposed to amend
Article FOURTH of the Corporation's Certificate of Incorporation in
its entirety to read as follows:
"FOURTH: The total number of shares of all classes of
stock that the Corporation shall have authority to issue is
11,000,000 shares, of which 9,900,000 shares shall be Common Stock
having a par value of $.01 per share ("Common Stock"), 100,000
shares shall be Class A Common Stock having a par value of $.01 per
share ("Class A Common Stock"), and 1,000,000 shares shall be
Preferred Stock having a par value of $1.00 per share ("Preferred
Stock").
(a) Common Stock and Class A Common Stock. Except as set
forth in this Article FOURTH, the Common Stock and the Class A
Common Stock shall have the same rights and
privileges and shall rank equally, share ratably and be identical
in all respects as to all matters.
(1) Dividends, Combinations, Subdivisions
and Mergers.
(i) Subject to any preferential
or other rights granted to the holders of any
series of Preferred Stock, holders of Common Stock
and Class A Common Stock shall be entitled to
receive such dividends, payable in cash, as may be
declared thereon by the Board of Directors from
time to time out of assets or funds of the
Corporation legally available therefor, provided
that all such dividends shall be paid in equal
amounts, share for share, to the holders of Common
Stock and Class A Common Stock as if a single
class.
(ii) If the Corporation shall in
any manner split, subdivide or combine the
outstanding shares of Common Stock, the outstanding
shares of Class A Common Stock shall not (unless
otherwise specifically provided by Resolution of
the Board of Directors at the time of such split,
subdivision or combination) be split, subdivided or
combined. If the Corporation shall in any manner
split, subdivide or combine the outstanding shares
of Class A Common Stock, the outstanding shares of
Common Stock may (if so provided by resolution of
the Board of Directors at the time of such split,
subdivision or combination), but need not, be
split, subdivided or combined in the same manner.
(iii) In the event of any merger
or consolidation of the Corporation with or into any
other entity (whether or not the Corporation is the
surviving entity) the holders of Common Stock and
Class A Common Stock shall be entitled to receive
the same per share consideration, if any.
(2) Rights on Liquidation. Subject to any
preferential or other rights granted to the holders
of any series of Preferred Stock, in the event of
any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the
assets of the Corporation available for distribution
to stockholders shall be distributed in equal
amounts per share to the holders of the Common Stock
and the holders of the Class A Common Stock, as if
such classes constituted a single class. For
purposes of this paragraph, a consolidation or
merger of the Corporation with any other
corporation, or the sale, transfer or lease by the
2
Corporation of all or substantially all of its
assets, shall not constitute or be deemed a
liquidation, dissolution or winding up of the
Corporation.
(3) Voting. Subject to the voting powers,
if any, granted to the holders of any series of
Preferred Stock, and except as otherwise required
by law, the Common Stock shall have the exclusive
right to vote for the election of directors and
for all other purposes and each holder of Common
Stock shall be entitled to one vote for each share
of Common Stock held. Except as otherwise required
by law, the Class A Common Stock shall have no
voting rights on any matter.
(4) Conversion of Class A Common Stock.
(i) Upon the first to occur of (A)
April 1, 1995 or (B) the date on which a
registration statement filed by the Corporation with
the Securities and Exchange Commission ("SEC") for a
public offering and sale of the Common Stock of the
Corporation (other than a registration statement on
Form S-4 or Form S-8, or their successors, or any
other form for a limited purpose, or any
registration statement covering only securities
proposed to be issued in exchange for securities or
assets of another corporation) is declared effective
by the SEC, such shares of Class A Common Stock
shall, without any further act or deed on the part
of the Corporation, the holder(s) thereof or any
other person, be automatically converted on a
share-for-share basis into shares of Common Stock.
At such time, all rights of the holder of such
shares of Class A Common Stock as such shall cease
and the person or persons in whose name or names a
certificate or certificates are to be issued
representing the shares of Common Stock into which
such shares of Class A Common Stock have been
converted shall be treated for all purposes as
having become the record holder or holders of such
shares of Common Stock at such time; provided,
however, that any such surrender on any date when
the stock transfer books of the Corporation shall be
closed shall constitute the person or persons in
whose name or names the certificate or certificates
representing shares of Common Stock are to be issued
as the record holder or holders thereof for all
purposes immediately prior to the close of business
on the next succeeding day on which such stock
transfer books are open.
3
(ii) As promptly as practical
after the conversion of shares of Class A Common
Stock in the manner provided in subparagraph (4)
(i) above, the Corporation will deliver or cause
to be delivered a certificate or certificates
representing the number of full shares of Common
Stock issuable upon such conversion, issued in the
name or names of such appropriate holder(s).
(iii) The Corporation covenants
that it will at all times reserve and keep
available, solely for the purpose of issuance upon
conversion of the outstanding shares of Class A
Common Stock, such number of shares of Common Stock
as shall be issuable upon the conversion of all
such outstanding shares, provided, however, that
nothing contained herein shall be construed to
preclude the Corporation from satisfying its
obligations in respect of the conversion of the
outstanding shares of Class A Common Stock by
delivery of purchased shares of Common Stock which
are held in the treasury of the Corporation. The
Corporation covenants that if any shares of Common
Stock, required to be reserved for purposes of
conversion hereunder, require registration or
approval with any governmental authority under any
federal or state law before such shares of Common
Stock may be issued upon conversion, the
Corporation will cause such shares to be duly
registered or approved, as the case may be.
(b) Preferred Stock. The Board of Directors shall
have authority by resolution to issue the shares of
Preferred Stock from time to time on such terms as it may
determine and to divide the Preferred Stock into one or more
series and, in connection with the creation of any such
series, to determine and fix by the resolution or resolutions
providing for the issuance of shares thereof:
(1) the distinctive designation of such
series, the number of shares which shall constitute
such series, which number may be increased or
decreased (but not below the number of shares then
outstanding) from time to time by action of the
Board of Directors, and the stated value thereof, if
different from the par value thereof;
(2) the dividend rate, the times of payment
of dividends on the shares of such series, whether
dividends shall be cumulative, and, if so, from what
date or dates, and the preference or relation which
such dividends will bear to the dividends
4
payable on any shares of stock of any other class
or any other series of this class;
(3) the price or prices at which, and the
terms and conditions on which, the shares of such
series may be redeemed;
(4) whether or not the shares of such
series shall be entitled to the benefit of a
retirement or sinking fund to be applied to the
purchase or redemption of such shares and, if so
entitled, the amount of such fund and the terms and
provisions relative to the operation thereof;
(5) whether or not the shares of such
series shall be convertible into, or exchangeable
for, any other shares of stock of the Corporation
or any other securities and, if so convertible or
exchangeable, the conversion price or prices, or
the rates of exchange, and any adjustments thereof,
at which such conversion or exchange may be made,
and any other terms and conditions of such
conversion or exchange;
(6) the rights of the shares of such
series in the event of voluntary or involuntary
liquidation, dissolution or winding up, or upon any
distribution of the assets, of the Corporation;
(7) whether or not the shares of such series
shall have priority over or parity with or be junior
to the shares of any other class or series in any
respect, or shall be entitled to the benefit of
limitations restricting (i) the creation of
indebtedness of the corporation, (ii) the issuance of
shares of any other class or series having priority
over or being on a parity with the shares of such
series in any respect, or (iii) the payment of
dividends on, the making of other distributions in
respect of, or the purchase or redemption of shares
of any other class or series on a parity with or
ranking junior to the shares of such series as to
dividends or assets, and the terms of any such
restrictions, or any other restriction with respect
to shares of any other class or series on a parity
with or ranking junior to the shares of such series
in any respect;
(8) whether such series shall have voting
rights, in addition to any voting rights provided by
law and, if so, the terms of such voting rights,
which may be general or limited; and
5
(9) any other powers, preferences,
privileges, and relative, participating, optional,
or other special rights of such series, and the
qualifications, limitations or restrictions thereof,
to the full extent now or hereafter permitted by
law.
The powers, preferences and relative, participating,
option and other special rights of each series of Preferred
Stock, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other
series at any time outstanding. All shares of any one series
of Preferred Stock shall be identical in all respects with
all other shares of such series, except that shares of any
one series issued at different times may differ as to the
dates from which dividends thereon shall be cumulative;"
SECOND: That thereafter, pursuant to the resolution of its
Board of Directors and Section 228 of the Statute, the holders of all
of the outstanding capital stock of the Corporation entitled to vote
thereon adopted the proposed resolution and approved the amendment set
forth herein by written consent on July 15, 1994.
THIRD: That said amendment was duly adopted in accordance
with the provisions of Section 242 of the Statute.
FOURTH: That the capital of the Corporation shall not be
reduced under or by reason of said amendment.
6
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be hereunder affixed and this Certificate to be signed by Eugene B. Settler,
its President, this 18th day of July, 1994.
By:/s/Eugene B. Settler
-------------------------------
Eugene B. Settler, President
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 18th day of
July, 1994 by Eugene B. Settler, as President, of THE SINGING MACHINE COMPANY,
INC., a Delaware corporation, on behalf of the corporation, and he is
personally known to me.
/s/ Donald E. Thompson, II
--------------------------------
DONALD E. THOMPSON II Notary Public
[seal] MY COMMISSION #CC229728 EXPIRES
September 21, 1996
BONDED THRU TROY FARM INSURANCE, INC. /s/ Donald E. Thompson, II
--------------------------------
Type, Print, or Stamp Name
7
State of Delaware
PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "THE SINGING MACHINE COMPANY, INC.", FILED IN THIS OFFICE ON THE
TWENTY-SIXTH DAY OF JULY, A.D. 1994, AT 3 O'CLOCK P.M.
/s/ Edward J. Freel
[seal] -----------------------------------
Edward J. Freel, Secretary of State
2376345 8100
AUTHENTICATION: 0272816
001088795 DATE: 02-23-00
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:00 PM 07/26/1994
944138111 - 2376345
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE SINGING MACHINE COMPANY, INC.
THE SINGING MACHINE COMPANY, INC. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "Statute"), does hereby certify:
FIRST: That on July 11, 1994, the Board of Directors of the
Corporation, pursuant to unanimous written consent of all of its members
in lieu of holding a special meeting, adopted a resolution setting forth
a proposed amendment to the Corporation's Certificate of Incorporation,
declaring said amendment to be advisable and resolving that said
amendment be considered and voted upon by the Corporation's
stockholders. Said resolution proposed to amend Article FOURTH of the
Corporation's Certificate of Incorporation by adding to the and thereof
the following two new paragraphs:
"(c) Reverse Stock Split. Upon the Effective Date,
each share of the Corporation's then issued and
outstanding Common Stock shall be converted on a basis of
one (1) share for each 1.87476 shares of Common Stock
outstanding (the "Reverse Stock Split"). Any stock
certificate that, immediately prior to the Effective Date,
represents shares of Common Stock issued and outstanding,
shall, from and after the Effective Date, automatically
and without the necessity of presenting the same for
exchange, represent the number of shares of Common
Stock which equals the quotient of the number of
shares of Common Stock issued and outstanding
immediately prior to the Effective Date represented
by such certificate divided by a factor of 1.87476.
For purposes of this paragraph, the term "Effective
Date" shall mean the date upon which this amendment
is filed with the Delaware Secretary of State."
No fractional shares resulting from the
Reverse Stock Split representing Common Stock shall be
issued. After giving effect to the Reverse Stock
Split, any share of Common Stock of any certificate
representing a fraction of such a share shall be
rounded up to the next whole share of Common Stock;"
SECOND: That thereafter, pursuant to the resolution of its
Board of Directors and Section 228 of the Statute, the holders of all
of the outstanding capital stock of the Corporation entitled to vote
thereon adopted the proposed resolution and approved the amendment set
forth herein by written consent on July 15, 1994.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the Statute.
FOURTH: That the capital of the Corporation shall not be
reduced under or by reason of said amendment.
2
IN WITNESS WHEREOF, the corporation has caused its corporate seal to
be hereunder affixed and this Certificate to be signed by Eugene B. Settler, its
President, this 19th day of July, 1994.
By:/s/Eugene B. Settler
--------------------------------
Eugene B. Settler,
President
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 19th day of
July, 1994 by Eugene B. Settler, as President of THE SINGING MACHINE COMPANY,
INC., a Delaware corporation, on behalf of the corporation, and he is
personally known to me.
/s/Donald E. Thompson II
--------------------------
DONALD E. THOMPSON II Notary Public
[seal] MY COMMISSION #CC229728 EXPIRES
September 21, 1996 /s/Donald E. Thompson II
BONDED THRU TROY FARM INSURANCE, INC. --------------------------
Type, Print, or Stamp Name
3
State of Delaware
PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "THE SINGING MACHINE COMPANY, INC.", FILED IN THIS OFFICE ON THE
FOURTH DAY OF NOVEMBER, A.D. 1994, AT 10:45 O'CLOCK A.M.
/s/Edward J. Freel
[seal] -----------------------------------
Edward J. Freel, Secretary of State
2376345 8100
AUTHENTICATION: 0272815
001088795 DATE: 02-23-00
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:45 AM 11/04/1994
944212026- 2376345
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE SINGING MACHINE COMPANY, INC.
THE SINGING MACHINE COMPANY, INC. (the "Corporation"), a
corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the "Statute"),
does hereby certify:
FIRST; That on October 27, 1994, the Board of Directors
of the Corporation, pursuant to unanimous written consent of
all of its members in lieu of holding a special meeting,
adopted a resolution setting forth a proposed amendment to the
Corporation's Certificate of Incorporation, declaring said
amendment to be advisable and resolving that said amendment be
considered and voted upon by the Corporation's stockholders.
Said resolution proposed to add a new Article ELEVENTH of the
Corporation's Certificate of Incorporation by adding the
following;
"ELEVENTH: In addition to any affirmative vote required
by law, any of the following actions shall require the
affirmative vote of the holders of at least a majority
of the outstanding shares Of capital stock of the
Corporation entitled to vote thereon in order to be
approved: (i) the adoption of any plan or proposal for
the liquidation or dissolution of the Corporation,
(ii) any merger or consolidation to which the
Corporation is a party and in which the Corporation is
not the surviving entity in such merger or
consolidation or (iii) any sale, lease or exchange of
all or substantially all
of the Corporation's a property and assets;
provided, however, that the provisions of this
Article ELEVENTH shall only apply to the extant any
such actions occur during the five year period
immediately following the closing date of any
initial public offering of securities by the
Corporation."
SECOND: That thereafter, pursuant to the resolution
of its Board of Directors and Section 228 of the Statute,
the holders of all of the outstanding capital stock of the
Corporation entitled to vote thereon adopted the proposed
resolution and approved the amendment set forth herein by
written consent on November 2, 1994.
THIRD: That said amendment was duly adopted in
accordance with the provisions of Section 242 of the Statute
and upon the filing hereof shall become a part of the
Corporation's Certificate of Incorporation.
FOURTH: That the capital of the Corporation shall
not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, the corporation has caused its corporate
seal to be hereunder affixed and this Certificate to be signed by
Eugene B. Settler, its President, this 3rd day of November, 1994.
By:/s/ Eugene B. Settler
----------------------------
Eugene B. Settler, President
2
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this
3rd day of November, 1994 by Eugene B. Settler, as President of
THE SINGING MACHINE COMPANY, INC., a Delaware corporation, on
behalf of the corporation, and he is personally known to me.
/s/ Donald E. Thompson II
--------------------------
Notary Public
DONALD E. THOMPSON II
[seal] MY COMMISSION #CC229728 EXPIRES
September 21, 1996
BONDED THRU TROY FARM INSURANCE, INC.
--------------------------
Type, Print, or Stamp Name
State of Delaware
PAGE 1
Office of the Secretary of State
---------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY
OF THE CERTIFICATE OF RENEWAL OF "THE SINGING MACHINE COMPANY,
INC.", FILED IN THIS OFFICE ON THE SECOND DAY OF APRIL, A.D. 1998,
AT 9 O'CLOCK A.M.
/s/Edward J. Freel
[seal] -----------------------------------
Edward J. Freel, Secretary of State
2376345 8100
AUTHENTICATION: 0272814
001089795
DATE: 02-23-00
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL AND
REVIVAL OF CHARTER
The Singing Maching Company Inc., a corporation organized under the
laws of Delaware, the charter of which was voided for non-payment of taxes, now
desires to procure a restoration, renewal and revival of its charter, and hereby
certifies as follows:
1. The name of this corporation is The Singing Machine Company, Inc.
2. Its registered office in the State of Delaware is located at 1013
CENTER ROAD Street, City of WILMINGTON Zip Code 19805 County of
NEW CASTLE the name and address of its registered agent is
CORPORATION SERVICE COMPANY.
3. The date of filing of the original Certificate of Incorporation
in Delaware was FEBRUARY 15, 1994.
4. The date when resstoration, renewal, and revival of the charter
of this company is to commence is the 28TH day of FEBRUARY
1998, same being prior to the date of the expiration of the
charter. This renewal and revival of the charter of this
corporation is to be perpetual.
5. This corporation was duly organized and carried on the business
authorized by its charter until the 1ST day of MARCH A.D. 1998,
at which time its charter became inoperative and void for non-
payment of taxes and this certificate for renewal and revival is
is filed by authority of the duly elected directors of the
corporation in accordance with the laws of the State of Delaware.
IN TESTIMONY WHEREOF, and in compliance with the provisions of
Section 312 of the General Corporation Law of the State of Delaware, as amended,
providing for the renewal, extension and restoration of charters, JOHN KLECHA
the last and acting authorized officer hereunto set his/her hand to this
certificate this 30TH day of MARCH 1998.
By:/s/John Klecha
-----------------------------------
Authorized Officer
Name:/s/John Klecha
-----------------------------------
Print of Type
Title:/s/ Secretary
-----------------------------------
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF AMENDMENT OF "THE SINGING MACHINE
COMPANY, INC.", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF
APRIL, A.D. 1998, AT 4:01 O'CLOCK P.M.
/s/Edward J. Freel
[seal] -----------------------------------
Edward J. Freel, Secretary of State
2376345 8100 AUTHENTICATION: 9039988
DATE: 04-22-98
981150048
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE SINGING MACHINE COMPANY, INC.
THE SINGING MACHINE COMPANY, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify:
FIRST: that the Board of Directors of said corporation, by the
unanimous written consent of its members, filed with the minutes of the Board,
and pursuant to the Company's Plan of Reorganization, as amended on March 17,
1998, adopted a resolution proposing and declaring advisable the following
amendment to the Certification of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of The
Singing Machine Company, Inc. be amended by deleting the first
paragraph of Article Three to the Articles of Incorporation of
the Company and to insert the following in its place and stead:
"The aggregate number of shares of all classes of
capital stock that this Company shall have authority to
issue is One Million One Hundred Thousand (1,100,000)
shares, consisting of Nine Hundred and Ninety Thousand
(990,000) shares of Common Stock, par value $.01 per
share (the "Common Stock); and (ii) Ten Thousand
(10,000) shares of Class A Common Stock, par value $.01
per share (the "Class A Stock"); and One Hundred
Thousand (100,000) shares of Preferred Stock, par value
$1.00 per (the "Preferred Stock").
-1-
SECOND, that is lieu of a meeting and vote of stockholder, the
stockholders given unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation
Law of the State of Delaware.
THIRD, that the aforesaid amendment was duly adopted in
accordance with the applicable provisions of Section 242 and 228 of the
General Corporation Law of the State of Delaware.
IT WITNESS WHEREOF, The Singing Machine Company, Inc. has caused
this Certificate to be signed by John Klecha, its Secretary, this 23rd day
of March, 1998.
THE SINGING MACHINE COMPANY, INC.
By:/s/John Klecha
-----------------------------------
John Klecha, Secretary
-2-
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "THE SINGING MACHINE COMPANY, INC.", FILED IN THIS OFFICE ON THE
SEVENTH DAY OF MAY, A.D. 1998, AT 4:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
[seal] -----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9070088
2376345 8100
DATE: 05-08-98
981176853
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE SINGING MACHINE COMPANY, INC.
THE SINGING MACHINE COMPANY, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does certify:
FIRST: that pursuant to the Company's Plan of Reorganization, as
amended on March 17, 1998, and pursuant to the unanimous written consent of the
Board of Directors of said corporation, the Board adopted a resolution dated
March 23, 1998, amending Article Three to the Articles of Incorporation of the
Company to fix the aggregate number of shares of Capital Stock that the Company
shall have authority to issue at One Million One Hundred Thousand (1,100,000)
shares.
SECOND: that in lieu of a meeting and vote of stockholders, and in
accordance with the provisions of Section 303 of the General Corporation Law of
the State of Delaware, the Board of Directors of said corporation, by the
unanimous written consent of its members, an necessary to effectuate the
Company's Plan of Reorganization, as Amended on March 17, 1998, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said Corporation:
RESOLVED, that the Certificate of Incorporation of The Singing
Machine Company, Inc. be amended by deleting
-1-
the first paragraph of Article Three to the Articles of
incorporation of the Company and to insert the
following in its place and stead;
"The aggregate number of shares of all classes of capital
stock that this Company shall have authority to issue is
Eleven Million (11,000,000) shares, consisting of Nine
Million, Nine Hundred Thousand (9,900,000) shares of
Common Stock, par value $.01 per share (the "Common
Stock"); and (ii) one Hundred Thousand (100,000) shares of
Class A Common Stock, par value $.01 per share (the
"Class A Stock"); and One Million (1,000,000) shares of
Preferred Stock, par value $1.00 per (the "Preferred
stock").
THIRD: that the aforesaid amendment was duly adopted in
accordance with the applicable provisions of Section 242 of the
General Corporation Law of the State of Delaware.
IT WITNESS WHEREOF, The Singing Machine Company, Inc.
has caused this Certificate to be signed by John Klecha, its
Secretary, this 30th day of April, 1998.
THE SINGING MACHINE COMPANY, INC.
/s/ John Klecha
--------------------------------
By:John Klecha, Secretary
-2-
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "THE SINGING MACHINE COMPANY, INC.", FILED IN THIS OFFICE ON THE
THIRTEENTH DAY OF APRIL, A.D. 1999, AT 12:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
[seal] ------------------------------------
Edward J. Freel, Seciretary of State
2376345 8100
AUTHEDMCATION: 9689972
991143980
DATE: 04-16-99
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE SINGING MACHINE COMPANY, INC.
THE SINGING MACHINE COMPANY, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does certify;
FIRST: that pursuant to the Company's Annual Meeting on March 19,
1999, and approval by a majority vote of the majority of the shareholders of
said corporation, the Board is authorized to amend Article Four to the Articles
of Incorporation of the Company to fix the aggregate number of shares of Capital
Stock that the Company shall have authority to issue Seventy Five Million
(75,000,000) shares, as follows:
RESOLVED, that the Certificate of Incorporation of The
Singing Machine Company, Inc. be amended by deleting the first
paragraph of Article Four to the Articles of Incorporation of the
Company and to insert the following in its place and stead:
"The aggregate number of shares of all classes of capital
stock that this Company shall have authority to issue is
Seventy Five Million (75,000,000) shares, consisting of
Seventy Three Million, Nine Hundred Thousand (73,900,000)
shares of Common Stock, par value $.01 per share (the
"Common Stock"); and (ii) One Hundred Thousand (100,000)
shares of Class A Common Stock, par value $.01 per share
(the "Class A Stock"); and One Million (1,000,000) shares
of Preferred Stock, par value $1.00 per (the "Preferred
Stock").
Page 1 of 2
SECOND: that in lieu of a meeting and vote of stockholders, and in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware, the Board of Directors of said corporation, by the
unanimous written consent of its members, adopted a resolution proposing and
declaring advisable the following amendment to the Certificate of Incorporation
of said Corporation:
RESOLVED, that the Certificate of Incorporation of The Singing
Machine Company, Inc. be amended to include the Third Article as follows:
"The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware".
THIRD: that the aforesaid amendments were duly adopted in accordance
with the applicable provisions of Sections 242 of the General Corporation Law of
the State of Delaware.
IT WITNESS WHEREOF, The Singing Machine Company, Inc. has caused
this Certificate to be signed by John Klecha, its Secretary, this 1st day of
April, 1999.
THE SINGING MACHINE COMPANY, INC.
By:/s/John Klecha
------------------------------------
John Klecha, Secretary
Page 2 of 2
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "THE SINGING MACHINE COMPANY, INC.", FILED IN THIS OFFICE ON THE
FIFTEENTH DAY OF APRIL, A.D. 1999, AT 4:30 O'CLOCK P.M.
/s/Edward J. Freel
[seal] -----------------------------------
Edward J. Freel, Secretary of State
2376345 8100
AUTHENTICATION: 0272813
001088795
DATE: 02-23-00
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 04/15/1999
991149655 - 2376345
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF PREFERRED STOCK
OF
THE SINGING MACHINE COMPANY, INC.
The Singing Machine Company, Inc. (the "Company"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware DOES HEREBY CERTIFY:
THAT, pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation, as Amended, of said corporation, and pursuant
to the provisions of Section 151 of Title 8 of the Delaware Code of 1953, said
Board of Directors at a Special Meeting held on March 24, 1999, by the unanimous
written consent of its members, filed with the minutes of the Board, adopted a
resolution in conjunction with the issuance of the Company's securities pursuant
to that certain Private Placement Memorandum dated April 1, 1999, to designate
the 1,000,000 authorized shares of Preferred Stock subject to the preference,
dividends, conversion and other rights which resolution is as follows;
RESOLVED, that the Board of Directors designate the 1,000,000
authorized shares of Preferred Stock subject to the preferences, dividends,
conversion and other rights an set forth by the Board of Directors, as follows:
Designation and Initial Number. The class of shares of Preferred
Stock hereby classified shall be designated
the Convertible Preferred Stock" (hereinafter referred to as the
"Preferred Stock"). The initial number of authorized shares of
the Preferred Stock is 1,000,000.
Dividends. There shall be a nine percent (9%)
dividend paid on the Preferred Stock prior to the date of
conversion as set forth below.
Conversion. Each share of Preferred Stock will
automatically convert at 5:00 p.m. eastern time on April 1, 2000,
which is one (1) year after the date of this Memorandum. Upon
conversion, each holder of one (1) share of Preferred Stock shall
receive from the Company one (1) share of the Company's Common
Stock, which shall not have been registered with the Commission.
The Company, however, will use its best efforts to file a
registration statement with the Commission to register the
Company's Common Stock underlying the securities comprising the
Units within ninety (90) days after the completion of this
Offering.
Liquidation or Dissolution. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Company, the holders of Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Company available
for distribution to its stockholders, before any payment shall be
made to the holders of any stock of the Company ranking junior to
Preferred Stock.
A merger or consolidation of the Company with or into any other
corporation, share exchange or a sale or conveyance of all or any part
of the assets of the Company (which shall not in fact result in the
liquidation of the Company and the distribution of assets to
stockholders) shall not be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Company.
Voting. The Preferred Stock shall have no voting rights.
IN WITNESS WHEREOF, the Board of Directors has authorized this
Certificate to be signed by John F. Klecha, its Secretary, this 9th day
of April, 1999.
THE SINGING MACHINE COMPANY, INC.
By: /s/John F. Klecha
-----------------------------------------
John F. Klecha, Secretary