EXHIBIT 4.3
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:05 AM 09/18/1996
950271125 - 2374971
SYNERGISTIC HOLDINGS CORP.
____________________________
CERTIFICATE OF DESIGNATION
OF
SERIES B CONVERTIBLE PREFERRED STOCK
SETTING FORTH THE POWERS,
PREFERENCES, RIGHTS, QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS OF
SUCH SERIES OF PREFERRED STOCK
_____________________________
Pursuant to Section 151 of the General Corporation Law of the State of
Delaware, Synergistic Holdings Corp. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
That pursuant to the authority of the Board of Directors of the Corporation
under Article IV of the Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation"), and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of Delaware, the Board
of Directors of the Corporation adopted the following resolution creating a
series of preferred stock designated as Series B Convertible Preferred Stock.
RESOLVED that, pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the General COrporation LAw of the State
of Delaware and the provisions of the Certificate of Incorporation, a series of
the class of authorized Preferred Stock, par value $.01 per share, of the
Corporation is hereby created and that the designation and number of shares
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations and restrictions thereof, are as follows:
Section 1. Designation, Number and Rank.
(a) The shares of such series shall be designated "Series B Convertible
Preferred Stock" (the "Series B Preferred Stock"). The number of shares
initially constituting the Series B Preferred Stock shall be 1,000, par value
$.01 per share, which number may be decreased or increased by the Board of
Directors only with the prior written consent of a majority of the then
outstanding holders of the Series B Preferred Stock stockholders; provided,
however, that such number may not be decreased below the number of then
outstanding shares of Series B Preferred Stock.
(b) The Series B Preferred Stock shall, with respect rights as
liquidation, dissolution or winding up, rank prior to the common stock, par
value $.01 per share, of the Corporation (the "Common Stock").
Section 2. Dividends and Distributions. The holders of shares of
Series B Preferred Stock shall be entitled to receive dividends in proportion
to the conversion ratio set forth in Section 6(a) below, to the extant any
dividends are declared or paid on the Common Stock.
Section 3. Voting Rights.
(a) In addition to any voting rights provided by law, the holders of
shares of Series B Preferred Stock shall be entitled to vote on all matters
voted on by holders of Common Stock. Voting together as a single class with
other shares entitled to vote at all meetings of the stckholders of the
Corporation. With respect to any such vote, such shares of Series B Preferred
Stock shall entitle the holder thereof to cast the number of votes equal to the
number of votes which could be cast in such vote by a holder of the shares of
capital stock of the Corporation into which such shares of Series B Preferred
Stock is convertible as the record date for such vote, pursuant to Section 6(a)
below.
(b) There shall be no change in the right or terms of the Series B
Preferred Stock without the written consent of a majority of the holders of the
Series B Preferred Stock.
Section 4. Required Shares. Any shares of Series B Preferred Stock
converted, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares of Series B Preferred Stock shall upon their
cancellation, and upon the filing of an appropriate certificate with the
Secretary of State of the State of Delaware, become authorized but unissued
shares of Preferred Stock, par value $.01 per share, of the Corporation and may
be reissued as part of another series of Preferred Stock, par value $.01 per
share, of the Corporation, subject to the conditions or restrictions on
issuance set forth herein.
Section 5. Liquidation, Dissolution or Winding Up.
(a) If the Corporation shall commence a voluntary case under the
federal bankruptcy laws or any other applicable federal or state bankruptcy,
insolvency or similar law, or consent to the entry of an order for relief in an
involuntary case under such law or to the appointment of a receiver, liquidator,
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assignee, custodian, trustee, sequestrator (or other similar official) of the
Corporation or of any substantial part of its property, or make an assignment
for the benefit of its creditors, or admit in writing its inability to pay its
debts generally as they become due, or if a decree or order for relief in
respect of the Corporation shall be detered by a court having jurisdiction in
the premises in an involuntary case under the federal bankruptcy laws or any
other applicable federal or state bankruptcy, insolvency or similar law, or
supporting a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Corporation or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and any such
decree or order shall be unstayed and in effect for a period of 150 consecutive
days and on account of any such event the Corporation shall liquidate, dissolve
or wind up, or if the Corporation shall otherwise liquidate, dissolve or wind
up, no distribution shall be made (i) to the holders of shares of Series B
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 with respect to each share (as adjusted
for any stock dividends, combinations or splits with respect to such shares)
plus all declared or accumulated but unpaid dividends or such shares, and (ii)
to the holders of shares of Common Stock unless prior thereto the holders of
shares of Series A Preferred Stock shall have received $100 with respect to each
share and the holders of shares of Series B Preferred Stock shall have received
$.01 with respect to each share (as adjusted for any stock
dividends,combinations or splits with respect to such share).
(b) Neither the consolidation, merger, or other business combination
of the Corporation with or into any other Person or Persons nor the sale of all
or substantially all the assets of the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this
Section 6.
Section 6. Conversion. The holders of the Series B Preferred Stock shall
convert their shares of Series B Preferred Stock as follows:
(a) Mandatory Conversion. As the Conversion Date (as hereinafter
defined) each share of Series B Preferred Stock shall be converted into such
number of fully paid and nonassessable shares of Common Stock as is determined
by applying the Conversion Ratio. The number of shares of Common Stock to be
issued and delivered upon conversion of a share of Series B Preferred Stock is
referred to herein as the "Conversion Ratio." The Conversion Ratio shall be
2,059,105 shares of Common Stock for each share of Series B Preferred Stock.
(b) Conversion Date. For purposes of Section 6 hereof, "Conversion
Date" shall mean the date immediately after the Corporation has filed an
amendment to its Certificate of Incorporation with the Secretary of State of the
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State of Delaware increasing the Corporation's authorized shares of Common Stock
to a number sufficient to allow for the exercise of all outstanding Synergistic
warrants and the conversion of all shares of Synergistic Preferred Stock (Series
A Preferred and Series B Preferred).
(c) Mechanics of Conversion. Before any holder of Series B Preferred
Stock shall be entitled to convert the same into shares of Common Stock, he
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer agent for the Series B Preferred
Stock, and shall give written notice to the Corporation at its principal
corporate office of the election to convert the same and shall state therein the
name or names in which the certificate or certificates for shares of Common
Stock are to be issued. The Corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Series B
Preferred Stock, or to the nominee or nominees of such holder, a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled as aforesaid. Such conversion shall be deemed to have been made
immiediately prior to the close of business on the date of such surrender of the
shares of Series B Preferred Stock to be converted, and the person or persons
entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such shares
of Common Stock as of such date.
(d) Permissive Conversion. Any holder of Series B Preferred Stock
shall be entitled to convert the same into shares of Common Stock, at any time,
and in an amount determined based on the Conversion Ratio, to the extent that
any treasury stock of the Corporation is otherwise available for such
conversion.
Section 7. Certain Covenants. Any registered holder of Series B
Preferred Stock may proceed to protect and enforce its rights and the rights of
such holders by any available remedy by proceeding at law or in equity to
protest and enforce any such rights, whether for the specific enforcement of any
provision in this Certificate of Designation or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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In WITNESS WHEREOF, a duly authorized officer of the Corporation has
caused this Certificate to be duly executed on this 18th day of September, 1996.
SYNERGISTIC HOLDINGS CORP.
By: /S/ T. Marshall Swartwood
----------------------------
Name: T. Marshall Swartwood
Title: Chairman of the
Board of Directors
Attest:
By: /s/ Thomas M. Swartwood
---------------------------
Name: Thomas M. Swartwood
Title: Secretary