AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THERMOGENESIS CORP.
THERMOGENESIS CORP., a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
1. This corporation was originally incorporated under the name of
Refrigeration Systems International on July 3, 1986, upon filing its certificate
of incorporation with the Secretary of State of the State of Delaware.
2. Pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, on December 23, 1998, the corporation filed the Certificate
of Designation whereby designating a segment of the Preferred Stock, $.001 par
value, as Series A Convertible Preferred Stock;
3. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Certificate of
Incorporation to remove the repurchase provision for Series A Convertible
Preferred Stock as approved by the stockholders pursuant to Section 242.
4. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated and further amended to read in its
entirety as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is THERMOGENESIS CORP.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is 1013
Centre Road, Wilmington, DE 19805, County of New Castle; and the name of
the registered agent of the Corporation in the State of Delaware at such
address is The Prentice-Hall Corporation System, Inc.
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 the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is Fifty-Two Million (52,000,000) consisting
of Two Million (2,000,000) shares of Preferred Stock, par value $.001 per
share, and Fifty Million (50,000,000) shares of Common Stock, par value
$.001 per share.
The Preferred Stock may be issued, from time to time, in one or more
series, with such designations, preferences and relative, participating,
optional or other rights, qualifications, limitations or restrictions
thereof as shall be stated and expressed in the resolution or resolutions
providing for the issue of such series adopted by the Board of Directors
from time to time, pursuant to the authority herein given, a copy of which
resolution or resolutions shall have been set forth in a Certificate made,
executed, acknowledged, filed and recorded in the manner required by the
laws of the State of Delaware in order to make the same effective. Each
series shall consist of such number of shares as shall be stated and
expressed in such resolution or resolutions providing for the issuance of
the stock of such series. All shares of any one series of Preferred Stock
shall be alike in every particular.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: 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
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
(3/4) 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 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, 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.
SEVENTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and of its
stockholder or any class thereof, as the case may be, it is further
provided:
1. The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the entire Board of Directors
shall be fixed by, or in the manner provided in, the Bylaws, which
number has been set initially at not less than three nor more than nine,
with the specific number set by the Board of Directors from time to time,
and provided further that the number of directors constituting the entire
Board shall be six until otherwise fixed by a majority of the entire Board
of Directors. The phrase "entire Board of Directors" and the phrase "total
number of directors" shall be deemed to have the same meaning, to wit, the
total number of directors which the Corporation would have if there were no
vacancies. No election of directors need be by written ballot.
2. After the original or other Bylaws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware and, after the Corporation has received any payment for any of its
stock, the power to adopt, amend, or repeal the Bylaws of the Corporation
may be exercised by the Board of Directors of the Corporation; provided,
however, that any provision for the classification of directors of the
Corporation for staggered terms pursuant to the provisions of subsection
(d) of section 141of the General Corporation Law of the State of Delaware
shall be set forth in the initial Bylaws or in Bylaws adopted by the
stockholders entitled to vote of the Corporation unless provisions for such
classification shall be set forth in this certificate of incorporation.
3. Whenever the Corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the Corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of this Certificate of Incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (b)(2) of Section 242 of the General
Corporation Law of the State of Delaware shall otherwise require; provided,
that no share of any such class which is otherwise denied voting power
shall entitle the holder thereof to vote upon the increase or decrease in
the number of authorized shares of said class.
EIGHTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by subsection (7) of
subsection 9b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented.
NINTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State 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 the indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his 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 a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
TENTH: SERIES A CONVERTIBLE PREFERRED STOCK
Section 1. Designation and Amount.
The shares of such series shall be designated as Series A Convertible
Preferred Stock, par value $.001 per share (the "Series A Convertible
Preferred Stock") and the initial number of shares constituting such series
shall be 1,200,000.
Section 2. Dividend Rights.
The holders of shares of Series A Convertible Preferred Stock shall be
entitled to receive out of any funds legally available noncumulative
dividends at the same rate and at the same time as any dividends declared
on the Corporation's Common Stock, when, as and if declared by the Board of
Directors; provided that, for the purposes of this Section 2 only, the
holders of the Series A Convertible Preferred Stock shall be deemed to own
the number of shares of Common Stock into which such shares of Series A
Convertible Preferred Stock are convertible at the time such dividend is
declared.
Section 3. Voting Rights.
(a) General. Except as otherwise required by law or expressly provided
in this Section 3, the holders of Series A Convertible Preferred Stock
shall be entitled to notice of any shareholders' meeting and to vote upon
any matter submitted to shareholders for a vote, at any time on the
following basis:
(i) Each holder of Series A Convertible Preferred Stock shall be
entitled for each share of Series A Convertible Preferred Stock held
by such holder to the number of votes equal to the highest number of
full shares of Common Stock to which each share of Series A
Convertible Preferred Stock is convertible pursuant to Section 5
hereof at the record date for the determination of shareholders
entitled to vote on such matters; and
(ii) Except as otherwise required by law or expressly provided
herein, the holders of Series A Convertible Preferred Stock and Common
Stock shall vote together and not as separate classes.
(b) Right to Elect Directors.
(i) So long as in excess of 35% of the Aggregate Original Amount (as
defined in Section 8) of Series A Convertible Preferred Stock remains
outstanding, the holders of the Series A Convertible Preferred Stock shall
be entitled, voting as a separate class, to elect one
(1) director, who shall be one (1) of the authorized number of
directors of the Corporation. In the case of a vacancy in the office of the
director elected by the holders of Series A Convertible Preferred Stock, a
successor shall be elected to hold office for the unexpired term of such
director by the affirmative vote of the holders of a majority of the Series
A Convertible Preferred Stock given at a special meeting of such
shareholders duly called for that purpose, or by written consent of the
holders of record of a majority of the Series A Convertible Preferred
Stock. Any director who shall have been elected by the holders of the
Series A Convertible Preferred Stock may be removed during his term of
office, either for or without cause, by a majority of the Series A
Convertible Preferred Stock given at a special meeting of such shareholders
duly called for that purpose, or by written consent of the holders of
record of a majority of the Series A Convertible Preferred Stock. Any
vacancy created thereby may be filled by the holders of Series A
Convertible Preferred Stock represented at such meeting or by written
consent by holders of a majority of the Series A Convertible Preferred
Stock.
(c) Series A Convertible Preferred Stock - Special Voting Rights.
Provided that at least 35% of the Aggregate Original Amount of the Series A
Convertible Preferred Stock remains outstanding, the Corporation shall not
without first obtaining the approval (by vote or written consent) of the
holders of at least a majority of the shares of the Series A Convertible
Preferred Stock from time to time outstanding:
(i) take any action that would result in (A) a sale, conveyance
or other disposition or distribution of all or substantially all of
the assets of the Corporation or (B) merger, consolidation, or similar
transaction with any other corporation or entity where the Corporation
is not the survivor.
(ii) declare any dividends or any other distributions on, or
redeem or repurchase any, Equity Securities (as defined in Section 8)
of the Corporation of any nature (except for any dividends,
redemptions or repurchases required by the terms of the governing
instrument for the related equity securities which have been approved
by the holders of the Series A Convertible Preferred Stock pursuant to
Section 3(c)(iii) below);
(iii) issue or authorize the issuance of any shares of Preferred
Stock or any warrant, right, option, convertible security or other
security which has liquidation, redemption or dividend preference
rights which are senior to or on a parity with the preferences or
rights afforded to the Series A Convertible Preferred Stock, or which
has redemption, repurchase, put or similar rights;
(iv) amend the Corporation's Certificate of Incorporation or
Bylaws; or
(v) make or hold any direct or indirect investment in any
corporation, investment in the debt or equity securities of any
corporation, or loans or guaranties to one or more corporations
involved in another business in excess of $1,000,000 in the aggregate.
Section 4. Liquidation Preference.
In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation (any such event a
"Liquidation Event") then, and in that event, the holders of Series A
Convertible Preferred Stock shall be entitled to receive with respect to
any such Liquidation Event prior and in preference to any distribution of
any of the assets of the Corporation to the holders of Common Stock or to
the holders of any other series of preferred stock by reason of their
ownership thereof, an amount in cash or equivalent value in securities or
other consideration equal to the "liquidation preference" herein. If the
amount of such distribution is insufficient to permit full payment of the
"liquidation preference" herein, then such distribution shall be
distributed ratably to the holders of the Series A Convertible Preferred
Stock on the basis of the number of shares of Series A Convertible
Preferred Stock held. After payment in full of the "liquidation preference"
owed to the holders of the Series A Convertible Preferred Stock, the
holders of the Common Stock shall be entitled, to the exclusion of the
holders of the Series A Convertible Preferred Stock, to share in all
remaining assets of the Corporation in accordance with their respective
interests.
For the purposes this Section 4, the term "liquidation preference"
shall mean, with respect to the Series A Convertible Preferred Stock, an
amount equal to $6.25 per share (the Basic Preference Amount") which Basic
Preference Amount shall increase at the rate of eight percent (8%) per
share per year, compounded annually on each subsequent anniversary of the
Series A Original Issue Date (in the event of a Liquidation Event between
any such anniversaries, the Basic Preference Amount increase for such year
shall be prorated accordingly);
Section 5. Conversion Rights.
(a) Right to Convert Series A Convertible Preferred Stock. Each share
of Series A Convertible Preferred Stock shall be convertible, without the
payment of any additional consideration and at the option of the holder
thereof, at any time after the Series A Original Issue Date at the office
of the Corporation (or any transfer agent for the Series A Convertible
Preferred Stock) into shares of Common Stock at the then effective Series A
Conversion Rate (as defined in Section 5(c) hereof) and adjusted on a per
share basis giving effect to any adjustments required by Section 5 hereof.
(b) Automatic Conversion. Each share of Series A Convertible Preferred
Stock may, at the option of the Corporation, be converted into shares of
Common Stock at the then effective Series A Conversion Rate (as defined in
Section 5(c) hereof) and adjusted on a per share basis giving effect to any
adjustments required by Section 5 hereof provided that the shares of the
Corporation's Common Stock trade at an Average Price equal to or greater
than $5.00 per share (subject to any adjustments for events set forth in
Section 5(e) through (i)) for 30 consecutive trading days. The Corporation
shall give at least 20 days prior written notice to the holders of the
Series A Convertible Preferred Stock as to any automatic conversion
pursuant to this Section 5(b), such conversion being effective no later
than the twenty (20) days following
receipt by the holders of the Series A Convertible Preferred Stock of
such notice; provided, however, that nothing shall prohibit holders of the
Series A Convertible Preferred Stock at any time, including after such time
as the Corporation has given notice under this Section 5(b), to convert
their Series A Convertible Preferred Stock into shares of Common Stock
pursuant to Section 5(a).
(c) Series A Conversion Rate. Subject to the adjustments provided in
subsections (e) through (i) of this Section 5, each share of Series A
Convertible Preferred Stock shall be convertible into five (5) shares of
Common Stock
(d) Mechanics of Conversion. Before any holder of Series A Convertible
Preferred Stock shall be entitled to convert the same into full shares of
Common Stock pursuant to Section 5(a) hereof, the holder shall surrender
the certificate or certificates therefor, duly endorsed, at the office of
the Corporation or of any transfer agent for the Series A Convertible
Preferred Stock and shall give written notice to the Corporation at such
office that such holder elects to convert the same and shall state therein
such holder's name or the name or names of the nominees in which such
holder wishes the certificate or certificates for shares of Common Stock to
be issued. The Corporation shall, as soon as practicable thereafter but in
no event later than four (4) business days after the Corporation receives
all documents, including notice and certificates, necessary to effect the
conversion or, with respect to conversion pursuant to Section 5(b) on the
date specified in the notice (unless converted earlier), issue and deliver
at the address of such holder on the books and records of the Corporation,
or to such holder's nominee or nominees, a certificate or certificates for
the number of shares of Common Stock to which such holder shall be entitled
as aforesaid, together with cash in lieu of any fractional shares. Except
as otherwise set forth in Section 5(b) above, such conversion shall be
deemed to occur immediately prior to the close of business on the date of
surrender of the shares of Series A Convertible Preferred Stock to be
converted, and the person or persons entitled to receive the shares of
Common Stock issuable upon conversion shall be treated for all purposes as
the record holder or holders of such shares of Common Stock on such date.
Notwithstanding anything to the contrary contained herein, if any
holder of Series A Convertible Preferred Stock elects to convert such
holder's shares at any time prior to the record date for any vote,
dividend, redemption, liquidation, dissolution or winding up, or other
actions for which a record date is set and the holder receives prior notice
pursuant to Section 6, or prior to the effective date of any such event for
which either no record date is set or respecting which notice pursuant to
Section 6 is not received, then for all purposes such conversion shall be
treated as having occurred prior to such date or effective date and the
holder shall be treated as the owner of the Common Stock into which such
Series A Convertible Preferred Stock is convertible for all purposes.
(e) Adjustments for Subdivisions and Combinations. If the Corporation
shall at any time, or from time to time after the Series A Original Issue
Date, effect a subdivision of the outstanding Common Stock, the Series A
Conversion Rate then in effect immediately before
such subdivision shall be proportionately increased, and conversely,
if the Corporation shall at any time or from time to time after the Series
A Original Issue Date combine the outstanding shares of Common Stock, the
Series A Conversion Rate then in effect immediately before such combination
shall be proportionately decreased. Any adjustment under this Section 5(e)
shall become effective at the close of business on the date such
subdivision or combination becomes effective.
(f) Adjustments for Certain Dividends and Distributions. In the event
the Corporation at any time, or from time to time after the Series A
Original Issue Date, shall make or issue or fix a record date for the
determination of holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock, then and
in each such event the Series A Conversion Rate then in effect shall be
increased as of the time of such issuance or, in the event such a record
date shall have been fixed, as of the close of business on such record
date, by multiplying the Series A Conversion Rate then in effect by a
fraction:
(i) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such dividend
or distribution; and
(ii) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date;
provided, however, if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made
on the date fixed therefor, the Series A Conversion Rate shall be
recomputed accordingly as of the close of business on such record date
and thereafter the Series A Conversion Rate shall be adjusted pursuant
to this Section 5(f) as of the time of actual payment of such
dividends or distributions.
(g) Adjustment for Other Dividends and Distributions. In the event the
Corporation at any time, or from time to time after the Series A Original
Issue Date shall make or issue, or fix a record date for the determination
of holders of Common Stock entitled to receive, a dividend or other
distribution payable in securities of the Corporation other than shares of
Common Stock (but including securities convertible into Common Stock), then
and in each such event provisions shall be made so that the holders of
Series A Convertible Preferred Stock shall receive upon conversion thereof,
in addition to the number of shares of Common Stock receivable thereupon,
the amount and type of securities of the Corporation that they would have
received on a per share basis had their Series A Convertible Preferred
Stock been converted into Common Stock on the date of such event and had
such holders thereafter, during the period from the date of such event to
and including the conversion date, retained such securities receivable by
them as aforesaid during such period giving application to all adjustments
called for during such period under this Section 5 with respect to the
rights of the holders of the Series A Convertible Preferred Stock.
(h) Adjustments for Reclassification, Exchange or Substitution. If the
Common Stock issuable upon the conversion of the Series A Convertible
Preferred Stock shall be changed into the same or a different number of
shares of any class or classes of stock of the Corporation, whether by
capital reorganization, reclassification or otherwise (other than by a
subdivision, a combination or a stock dividend as provided for elsewhere in
this Section 5), then and in each event the holder of each share of Series
A Convertible Preferred Stock shall have the right thereafter to convert
such share into the kind and amount of shares of stock or other securities
and property receivable upon such reorganization, reclassification or other
change by the holders of the number of shares of Common Stock into which
each such share of Series A Convertible Preferred Stock might have been
converted immediately prior to such reorganization, reclassification or
other change, all subject to further adjustment as provided elsewhere in
this Section 5.
(i) Sale of Shares Below Dilution Price. For purposes of this
Section 5(i), the Dilution Price shall be initially equal to one
dollar and twenty-five cents ($1.25)..
(a) If at any time after the Series A Original Issue Date,
the Corporation shall issue for cash or other consideration
shares of Common Stock or any security convertible into or
exchangeable or exercisable for shares of Common Stock at a price
per share of Common Stock calculated by including the aggregate
proceeds per share to the Corporation upon issuance and any
additional consideration per share payable to the Corporation
upon any such conversion, exchange or exercise (in each case
before deduction of any per share discounts, commissions, fees
and other expenses of issuance and marketing), (the "New Issue
Price), that is less than the Dilution Price then in effect, the
Dilution Price shall be automatically adjusted down to the new
Issue Price and the aggregate number of shares of Common Stock
issuable upon the conversion of each share of Series A Preferred
Stock shall be automatically adjusted to equal the result
obtained by dividing the initial Purchase Price of $6.25 for each
share of Series A Preferred Stock by the New Issue Price. In the
event that this Section 5(i) applies, the Series A Conversion
Rate shall determined by this Section 5(i)(a).
For example, assume that (i) the Series A Conversion Rate
was five (5) shares of Common Stock for each share of Preferred
Stock; (ii) the initial Purchase Price was $6.25 per share, and
(iii) the Purchaser had acquired 100 shares of Series A Preferred
Stock for an aggregate purchase price of $625.00. If the New
Issue Price is $.50 per share, the new Dilution Price would be
$.50 per share and each share of Series A Preferred Stock would
be convertible into 12.5 shares of Common Stock.
(b) For the purpose of this Section 5(i), the issuance by
the Corporation of securities convertible into or exchangeable or
exercisable for Common Stock shall be deemed to involve the
immediate issuance of the maximum number of shares of Common
Stock issuable upon the conversion, exchange or exercise of such
securities for a consideration equal to the minimum aggregate
consideration receivable by the Corporation upon such conversion,
exchange or exercise. In the event that securities are issued by
the Corporation that result in an adjustment to
the Series A Conversion Rate pursuant to this Section 5(i)
and such securities are not converted, exchanged or exercised
prior to the expiration of the right of the holders of such
securities to effect any such action, then immediately upon such
expiration of the right of the holders of such securities to
effect any such action, the Series A Conversion Rate and Dilution
Price shall be recomputed (but such redetermination shall not
affect the Series A Conversion Rate of any shares of Series A
Preferred Stock that have been converted prior to such
expiration) and effective immediately upon such expiration the
Dilution Price and Series A Conversion Rate shall be increased to
the ratio which it would have been (but reflecting and other
adjustments in the Series A Conversion Rate made pursuant to
other provisions of this Section 5 after the issuance of such
securities) had such adjustments to the Series A Conversion Rate
and Dilution Price not been made.
(j) Issue Taxes. The Corporation shall pay any and all issue
and other taxes that maybe payable in respect of any issue or
delivery of shares of Common Stock on conversion of shares of
Series A Convertible Preferred Stock, excluding any tax or other
charge imposed in connection with any transfer involved in the
issue and delivery of shares of Common Stock in a name other than
that in which the shares of Series A Convertible Preferred Stock
so converted were registered, which tax or charge shall be borne
by the transferor.
(k) Reservation of Stock. The Corporation shall at all times
reserve and keep available out of its authorized but unissued
shares of Common Stock solely for the purpose of effecting the
conversion of the shares of the Series A Convertible Preferred
Stock one and one-half times the number of its shares of Common
Stock as shall from time to time be sufficient to effect any
conversion of any or all outstanding shares of the Series A
Convertible Preferred Stock. If at any time the number of
authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding
shares of the Series A Convertible Preferred Stock, the
Corporation shall take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purpose.
(l) Fractional Shares. No fractional share shall be issued
upon the conversion of any share or shares of Series A
Convertible Preferred Stock. All shares of Common Stock
(including fractions) issuable upon conversion of more than one
share of Series A Convertible Preferred Stock by a holder of such
stock shall be aggregated for purposes of determining whether the
conversion would result in the issuance of any fractional share,
if, after aggregation, the conversion would result in the
issuance of a fractional share of Common Stock, the Corporation
shall, in lieu of issuing any fractional share, pay the holder
otherwise entitled to such fraction a sum in cash equal to the
fair market value of such fraction on the date of conversion (as
determined in good faith by the Board of Directors).
(m) Successive Changes. The above provisions of this Section
5 shall similarly apply to successive combinations, subdivisions,
dividends and distributions on or of the Common Stock after the
Series A Original Issue Date.
(n) Subsequent Events. On the Series A Original Issue Date,
and thereafter, from time to time, within ten (10)
Business Days of the occurrence of any event which
would have the result of changing the Series A
Conversion Rate, the Corporation shall notify the
holders of the Series A Convertible Preferred Stock of
the nature of such event and of the newly calculated
figures resulting from such change and the calculation
in reasonable detail.
Section 6. Notices of Record Date.
In the event of (i) any taking by the Corporation of a record of the
holders of any class or series of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution or (ii) any reclassification or recapitalization of the
capital stock of the Corporation or any voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Corporation,
the Corporation shall send by (1) personal delivery to such holder, (2)
first class mail addressed, postage prepaid, and addressed to the holder at
the address appearing on the books of the Corporation, or (3) facsimile to
such holder at the facsimile number provided by such holder to the
Secretary of the Corporation, at least ten (10) days prior to the record
date specified therein, a notice specifying (A) the date on which any such
record is to be taken for the purpose of such dividend or other
distribution and a description of such dividend or distribution, (B) the
date on which any such reorganization, reclassification, dissolution,
liquidation or winding up is expected to become effective, and (C) the
time, if any is to be fixed, as to when the holders of record of Series A
Convertible Preferred Stock shall be entitled to exchange their Series A
Convertible Preferred Stock for securities or other property deliverable
upon such reorganization, reclassification, dissolution, liquidation or
winding up. For purposes of this notice provision, notice shall be deemed
to have been given (1) the next day in the case of notice by a national
courier service, or (2) in the case of facsimile, upon sending the
facsimile.
Section 7. Reacquired Shares.
Any shares of Series A Convertible Preferred Stock converted,
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof, and,
if necessary to provide for the lawful purchase of such shares, the capital
represented by such shares shall be reduced in accordance with the General
Corporation Law of the State of Delaware. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock,
$.001 par value, of the Corporation and may be reissued as part of another
series of Preferred Stock, $.001 par value, of the Corporation.
Section 8. Certain Definitions.
Under the context otherwise required for the purposes of this
resolution, the terms defined in this Section 8 shall have the meanings
herein specified.
"Series A Original Issue Date" means the effective date of a written
agreement by the Corporation for the initial sale of the Series A Convertible
Preferred Stock.
"Aggregate Original Amount" means the aggregate number of shares of
Series A Convertible Preferred Stock issued on the Series A Original Issue Date
plus any amount of shares issued pursuant to subsequent sales of Series A
Convertible Preferred Stock by the Corporation, from and after the date of
issuance thereof all such shares as adjusted pursuant to this Certificate of
Designation.
"Equity Securities" means any and all shares of corporate stock,
including each class or series of common or preferred stock.
"Average Price" with respect to Common Stock means, on any day, the
trade weighted average of the sales prices for such shares as reported on
Bloomberg News Services (i) on the largest national securities exchange (based
on the aggregate dollar value of securities listed) on which such shares are
listed or traded or (ii) if such shares are not listed on any national
securities exchange, then the prices at which transactions are effected through
the NASDAQ National Market as reported by NASDAQ or, (iii) if such shares shall
not be listed thereon, the trade weighted average of all transactions in Common
Stock in an over-the-counter market.
ELEVEN: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
certificate of incorporation are granted subject to the provisions of this
Article ELEVEN.
DATED: July ____, 1999
----------------------------
Philip H. Coelho, President
and Chief Executive Officer
ATTEST:
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David Adams, Secretary