CERTIFICATE OF DESIGNATION OF TERMS OF
FOURTH SERIES P CONVERTIBLE PARTICIPATING PREFERRED STOCK
Dimensional Visions Group, Ltd. (the "Corporation" or "Company"), a
Delaware corporation, pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware, as amended, hereby certifies that:
1. The Board of Directors of the Corporation, pursuant to authority
expressly vested in it by the provisions of the Company's Restated Certificate
of Incorporation, duly adopted the following resolution creating the fourth
series of the Preference Stock of the Corporation to consist initially of
600,000 shares and fixing the designations, preferences and rights, and the
qualifications, limitations and restrictions thereof, of the shares of such
series at a meeting duly held on August 26, 1995:
RESOLVED, That pursuant to authority expressly granted to the Board of
Directors by the provisions of this Corporation's Certificate of
Incorporation, the Board of Directors hereby creates the third series
of the Preference Stock of the Corporation to consist initially of
600,000 shares ("Fourth Series") and hereby fixes the designations,
preferences and rights, and qualifications, limitations and
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and rights, and the qualification,
limitations and restrictions thereof, set forth in the Certificate of
Incorporation which are applicable to this Corporation's Preference
Stock of all series) as follows:
(1) Designation of Series. The Fourth Series shall be designated
by the Series P Convertible Participating Preferred Stock.
(2) Number of Shares. The number of shares of the Fourth Series
shall be 600,000, which number from time to time may be increased or decreased
(but not below the number of shares of the series then outstanding) by
resolution of the Board of Directors of the Corporation.
(3) Dividends. Dividends will be paid on the Fourth Series P
Convertible Participating Preferred Stock to the extent that dividends are paid
on the Corporation's Common Stock.
(4) Redemption. Shares of the Fourth Series P Convertible
Participating Preferred Stock shall not be redeemable.
(5) No Liquidation Preference. In the event of a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, holders
of shares of the Fourth Series shall have no liquidation preference over holders
of the Corporation's Common Stock. Holders of shares of the Fourth Series shall
participate ratably with holders of the Corporation's Common Stock in the
distribution of assets with each share of the Fourth Series accounting for ten
(10) shares of the Corporation's Common Stock. Nether the merger nor
consolidation of the Corporation with or into any corporation, nor any sale,
transfer or lease of all or part of the Corporation's assets, shall be deemed a
liquidation of the Corporation within the meaning of this paragraph (5).
(6) Conversion Rights. Any holder of shares of the Fourth Series
may convert any or all of such shares into fully paid and non-assessable shares
of Common Stock of the Corporation (hereafter called "Common Stock") on the
terms, at the times, and in the manner hereinafter set forth.
(a) Shares of the Fourth Series may be converted at any time
after January 1, 1996, or at such time that the number of shares of the
Company's authorized but unissued Common Stock are available to allow 100%
conversion of the entire issued and outstanding Fourth Series P Convertible
Participating Preferred Stock, into shares of Common Stock at the rate of ten
(10) shares of Common Stock for each share of the Fourth Series, such rate to be
subject to adjustment as hereinafter provided.
(b) Any holder of shares of the Fourth Series who elects to
convert them shall surrender the certificate therefor at the principal office of
any Transfer Agent, or the Corporation as the case may be, for such shares, with
the form of written notice endorsed on such certificate of his elections to
convert them completed. If necessary under the circumstances, such certificate
shall be endorsed for transfer or accompanied by executed instruments of
transfer, together with such other transfer papers as the transfer Agent may
reasonably require. The Corporation or such Transfer Agent, as the case may be,
may require, as a condition to the exercise of the conversion privilege, the
payment of any transfer tax or other governmental charge (but not any tax
payable upon the issue of stock deliverable upon such conversion) that may be
imposed upon any transfer incidental or prior to the conversion, or the
submission of proper proof that the same has been paid. The conversion privilege
shall be deemed to have been exercised, and the shares of Common Stock issuable
upon such conversion shall be deemed to have been issued, upon the date the
Transfer Agent, or the Corporation as the case may be, receives for conversion
the certificate representing such shares with the required terms for conversion
satisfied, except that as to any shares of such series which are surrendered for
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conversion on a date which is less than five business days preceding the date
fixed for the determination of holders of Common Stock entitled to received
rights to subscribe for or to purchase shares of Common Stock or other
securities of the Corporation convertible to Common Stock, the conversion
privilege shall be deemed to have been exercised on the business day next
succeeding the date fixed for such determination. Each person entitled to
receive the Common Stock issuable upon such conversion shall from the same date
be treated as the record holder of such Common Stock, and the person who
surrenders such shares for conversion shall on that date cease to be treated as
the record holder of the shares surrendered.
(c) The Corporation shall not issue in connection with the
conversion of shares of the Fourth Series certificates for a fraction of one
share of Common Stock, but in lieu thereof shall pay to any person who would
otherwise be entitled thereto an amount of case equal to such fraction
multiplied by the Market Price of the Common Stock on the last business day of
the week preceding the week in which the conversion privilege was deemed to have
been exercised. As used herein, "Market Price" means the last reported sale
price regular way on such day or, in case no such reported sale takes place on
such day, the reported closing bid price regular way, in either case on the
principal national securities exchange on which the Common Stock is then listed
or, if not listed on any national securities exchange, the closing bid price in
the over-the-counter market as reported by any New York Stock Exchange member
firm selected from time to time by the Board of Directors for that purpose.
(d) As soon as practicable after the effective date of conversion
of any shares of the Fourth Series, the Corporation shall deliver to the person
or persons entitled thereto, at the principal office of the Transfer Agent at
which such stock was surrendered for conversion, certificates representing the
shares of Common Stock and any cash to which such person or persons shall be
entitled on such conversion.
(e) The conversion rate set forth in subparagraph (a) of this
paragraph (6) shall be subject to adjustment as follows:
(i) if the Corporation subdivides the outstanding shares of
its Common Stock into a greater number of shares or combines them
into a smaller number of shares, the conversion rate in effect
immediately prior to such subdivision or combination shall be
proportionately increased or decreased effective at the opening
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of business on the day following the day upon which such
subdivision or combination becomes effective;
(ii) if the Corporation fixes a record date for the purpose
of determining the holders of shares of Common Stock, entitled to
receive any dividend in Common Stock, the conversion rate in
effect immediately prior to such record date shall be
proportionately increased effective at the opening of business on
the day following such record date, provided that if for any
reason the plan to pay such dividend in Common Stock is legally
abandoned before payment, then any adjustment made in the
conversion rate by reason of the passage of such record date
shall be canceled as of the date the plan is abandoned; and
(iii) the issuance to all holders of Common Stock of the
Corporation of rights to subscribe to Common Stock at a price
lower than 90% of the Market Price (defined above) thereof as of
the close of business on the last business day of the week
preceding such issuance of rights shall be deemed to constitute
the payment of a dividend in Common Stock to the holders of
shares of Common Stock (and the record date therefore shall be
deemed to have been fixed as the date of issuance of such rights)
of that number of shares which is determined by dividing the
Market price per share as of such time into the difference
between (a) the total Market Price as of such time of the number
of shares purchasable upon exercise of such rights and (B) the
total offering price of such shares.
(f) In case of
(i) any reclassification or change of the Common Stock of
the Corporation other than a change in its par value, a change
from par value to no par value or case provided for in
subparagraph (c) of this paragraph (6), or
(ii) a merger of consolidation in which the Corporation is
not the continuing corporation,
provisions shall be made so that the Fourth Series shall
thereafter have the right to convert each share thereof into the
kind and amount of shares of stock or other securities or
property receivable upon such reclassification, change, merger or
consolidation by a holder of the number and kind of shares of
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capital stock of the Corporation into which such shares of the
Fourth Series were convertible immediately prior thereto. In any
such case the Board of Directors shall determine the manner in
which the adjustments provided for in subparagraph (e) of the
paragraph (6) shall thereafter be made.
(g) Whenever the conversion rate is required to be adjusted:
(i) the Corporation shall file a certificate setting forth
such adjusted conversion rate and the facts upon which the
adjustment is based with the Transfer Agents for shares of the
Fourth Series and the Transfer Agents for the Common Stock and
thereafter (until further adjusted) the adjusted conversion rate
shall be as set forth in such certificate; and
(ii) the Corporation shall mail notice of such adjusted
conversion rate to each holder of shares of the Fourth Series.
(7) Voting Rights. Except as provided below, holders of shares of
the Fourth Series shall have the general power to vote in the election of
directors and for all other purposes, on the basis of ten (10) votes per share
of the Fourth Series. Holders of shares of the Fourth Series shall not have the
general power to vote on any matters on which they are entitled to vote as a
series or as part of the class of Preference Stock, regardless of series.
2. This instrument will become effective as of the beginning of business on
September 5, 1995.
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IN WITNESS WHEREOF, the Company has caused its corporate seal to be
hereunto affixed and this certificate to be signed by George S. Smith, its Chief
Executive Officer, and attested by Joann Furman, its Secretary/Treasurer, this
5th day of September, 1995.
DIMENSIONAL VISIONS GROUP, LTD.
By: /s/ George S. Smith
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George S. Smith
Chief Executive Officer
[CORPORATE SEAL]
Attest:
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Joann Furman
Secretary/Treasurer