Exhibit 3.3
CERTIFICATION OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
($.01 PAR VALUE PER SHARE)
OF
NATIONAL PATENT DEVELOPMENT CORPORATION
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Pursuant to Section 151 of the
General Corporation Law of the
State of Delaware
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We, Jerome I. Feldman, President and Chief Executive Officer and Lydia M.
DeSantis, Secretary of National Patent Development Corporation (the
"Corporation"), a corporation organized and existing under and by virtue of
provisions of the General Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
FIRST: The Amended and Restated Certification of Incorporation. as amended
(the "Certificate of Incorporation"), of the Corporation authorizes the issuance
of 10,000,000 shares of preferred stock, $.01 par value per share (the
"Preferred Stock"), in one or more classes or series, and subject to the
provisions of the Certificate of Incorporation and the limitations prescribed by
law, expressly authorizes the Board of Directors of the Corporation to adopt
resolutions to issue the shares, fix the number of shares and change the number
of shares constituting any series, and to provide for or change the voting
powers, designations, preferences and relative, participating, optional or other
special rights, qualifications, limitations or restrictions thereof, including
dividend rights (and whether dividends are cumulative), dividend rates, terms of
redemption (including sinking fund provisions), redemption price or prices,
conversion rights and liquidation preferences of the shares constituting any
class or series of the Preferred Stock, without any further action or vote by
the stockholders.
SECOND: A resolution providing for and in connection with the issuance of
the Series A Junior Participating Preferred Stock was duly adopted by the Board
of Directors of the Corporation on June 23, 1997 pursuant to authority conferred
on the Board of Directors by the provisions of the Certificate of Incorporation
as aforesaid, which resolution provides as follows:
RESOLVED, that pursuant to the authority expressly vested in the Board of
Directors of National Patent Development Corporation (the "Corporation") by
Article Fourth of the Amended and Restated Certificate of Incorporation, as
amended, of the Corporation, the Board of Directors hereby fixes and determines
the voting rights, designations, preferences, qua1ifications,
privileges, limitations, restrictions, options, conversion rights and other
special or relative rights of a series of the Preferred Stock, par value $.01
per share, which shall consist of 10,000 shares and shall be designated as
Series A Junior Participating Preferred Stock (the "Series A Preferred Shares").
Special Terms of the Series A Preferred Shares
Section 1. Dividends and Distributions
(a) The rate of dividends payable per share of Series A Preferred Shares on
the first day of January, April, July and October in each year or such other
quarterly payment date as shall be specified by the Board of Directors (each
such date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of the Series A Preferred Shares, shall be
(rounded to the nearest cent) equal to the greater of (i) $0.01 or (ii) subject
to the provision for adjustment hereinafter set forth, 1,000 times the aggregate
per share amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in cash, based upon the fair market value at the time the
non-cash dividend or other distribution is declared or paid as determined in
good faith by the Board of Directors) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, $.01 par value (the "Common Stock"),
of the Corporation since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of the Series A Preferred
Shares. Dividends on the Series A Preferred Shares shall be paid out of funds
legally available for such purpose. In the event the Corporation shall at any
time after June 23, 1997 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, then in each case the amounts to
which holders of Series A Preferred Shares were entitled immediately prior to
such event under clause (ii) of the preceding sentence shall be adjusted by
multiplying each such amount by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Dividends shall begin to accrue and be cumulative on outstanding Series
A Preferred Shares from the Quarterly Dividend Payment Date next preceding the
date of issue of such Series A Preferred Shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of Series A Preferred Shares entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the Series A Preferred Shares in an amount less than the total amount of such
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dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time outstanding.
Section 2. Voting Rights. In addition to any other voting rights required
by law, the holders of Series A Preferred Shares shall have the following voting
rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
Series A Preferred Share shall entitle the holder thereof to 1,000 votes on all
matters submitted to a vote of the stockholders of the Corporation. In the event
the Corporation shall at any time after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding shares of Common Stock or (iii) combine the outstanding shares
of Common Stock into a smaller number of shares, then in each such case the
number of votes per share to which holders of Series A Preferred Shares were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) In the event that dividends upon the Series A Preferred Shares shall be
in arrears to an amount equal to six full quarterly dividends thereon, the
holders of such Series A Preferred Shares shall become entitled to the extent
hereinafter provided to vote noncumulatively at all elections of directors of
the Corporation, and to receive notice of all stockholders' meetings to be held
for such purpose. At such meetings, to the extent that directors are being
elected, the holders of such Series A Preferred Shares voting as a class shall
be entitled solely to elect two members of the Board of Directors of the
Corporation; and all other directors of the Corporation shall be elected by the
other stockholders of the Corporation entitled to vote in the election of
directors. Such voting rights of the holders of such Series A Preferred Shares
shall continue until all accumulated and unpaid dividends thereon shall have
been paid or funds sufficient therefore set aside; whereupon all such voting
rights of the holders of shares of such series shall cease, subject to being
again revived from time to time upon the reoccurrence of the conditions above
described as giving rise thereto.
At any time when such right to elect directors separately as a class shall
have so vested, the Corporation may, upon the written request of the holders of
record of not less than 20% of the then outstanding total number of shares of
all the Series A Preferred Shares having the right to elect directors in such
circumstances shall, call a special meeting of holders of such Series A
Preferred Shares for the election of directors. In the case of such a written
request, such special meeting shall be held within 90 days after the delivery of
such request, and, in either case, at the place and upon the notice provided by
law and in the By-laws of the Corporation, provided, that the Corporation shall
not be required to call such a special meeting if such request is received less
than 120 days before the date fixed for the next ensuing annual or special
meeting of stockholders of the Corporation. Upon the mailing of the notice of
such special meeting to the holders of such Series A Preferred Shares, or, if no
such meeting be held, then upon the mailing of the notice of the next annual or
special meeting of stockholders for the election of directors, the number of
directors of the Corporation shall, ipso facto, be increased to the extent, but
only to the extent, necessary to provide sufficient vacancies to enable the
holders of such Series A Preferred Shares to elect the two directors hereinabove
provided for, and all such vacancies shall be filled only by vote of the holders
of such Series A Preferred Shares as hereinabove provided. Whenever the number
of directors of the Corporation shall have been increased, the number as so
increased may
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thereafter be further increased or decreased in such manner as may be permitted
by the By-laws and without the vote of the holders of Series A Preferred Shares,
provided that no such action shall impair the right of the holders of Series A
Preferred Shares to elect and to be represented by two directors as herein
provided.
So long as the holders of Series A Preferred Stock are entitled hereunder
to voting rights, any vacancy in the Board of Directors caused by the death or
resignation of any director elected by the holders of Series A Preferred Shares,
shall, until the next meeting of shareholders for the election of directors, in
each case be filled by the remaining director elected by the holders of Series A
Preferred Shares having the right to elect directors in such circumstances.
Upon termination of the voting rights of the holders of any series of
Series A Preferred Shares the terms of office of all persons who shall have been
elected directors of the Corporation by vote of the holders of Series A
Preferred Shares or by a director elected by such holders shall forthwith
terminate.
(c) Except as otherwise provided herein, the articles of the Corporation or
by law, the holders of Series A Preferred Shares and the holders of Common Stock
(and the holders of shares of any other series or class entitled to vote
thereon) shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
Section 3. Required Shares. Any Series A Preferred Shares purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and cancelled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued Series Preferred Stock and may
be reissued as part of a new series of Series Preferred Stock to be created by
resolution or resolutions of the Board of Directors.
Section 4. Liquidation Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the holders of Series A Preferred Shares shall be entitled to
receive the greater of (a) $100 per share, plus accrued dividends to the date of
distribution, whether or not earned or declared, or (b) an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of Common
Stock. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares,
then in each such case the amount to which holders of Series A Preferred Shares
were entitled immediately prior to such event pursuant to clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction of
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 5. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the Series A
Preferred Shares shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 10,000 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time after the Rights Declaration
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Date (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Shares shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 6. No Redemption. The Series A Preferred Shares shall not be
redeemable.
Section 7. Ranking. The Series A Preferred Shares shall rank junior to all
other series of the Corporation's Series Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
Section 8. Fractional Shares. Series A Preferred Shares may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Shares.
IN WITNESS WHEREOF, National Patent Development Corporation has caused this
Certificate of Designations to be signed by its President and Chief Executive
Officer and attested by its Secretary this 23rd day of June, 1997.
NATIONAL PATENT DEVELOPMENT CORPORATION
By /s/ Jerome T. Feldman
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Name: Jerome I. Feldman
Title: President and Chief Executive Officer
Attest: /s/ Lydia M. DeSantis
-------------------------
Name: Lydia M. DeSantis
Title: Secretary
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