Exhibit No. 3/ AFGL International, Inc./ Form S-3
SERIES A CONVERTIBLE PREFERRED STOCK
CERTIFICATE OF DESIGNATION
FOR
21st CENTURY HOLDINGS, INC.
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
21st CENTURY HOLDINGS
Pursuant to Section 78.195 of the
Nevada General Corporation Law
21st CENTURY HOLDINGS, INC., a corporation organized and
existing under the laws of the State of Nevada (the
"Corporation"), in accordance with Section 78.195 of the Nevada
Corporate Law, DOES HEREBY CERTIFY:
1. The Certificate of Incorporation of the Corporation,
as amended (the "Certificate of Incorporation"), fixes the total
number of shares of all classes of capital stock which the
Corporation shall have the authority to issue at Twenty-Five
Million (25,000,000) shares, of which Five Million (5,000,000)
shares shall be shares of Preferred Stock, par value $.001 per
share (herein referred to as "Preferred Stock"), and Twenty
Million (20,000,000) shares shall be shares of Common Stock, par
value $.01 per share (herein referred to as "Common Stock").
2. The Certificate of Incorporation expressly grants to
the Board of Directors of the Corporation authority to provide
for the issuance of said Preferred Stock in one or more series,
with such voting powers, full or limited but not to exceed one
vote per share, or without voting powers, and with such
designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the
resolution or revolutions providing for the issue thereof adopted
by the Board of Directors and as are not stated and expressed in
the Certificate of Incorporation.
3. Pursuant to authority conferred upon the Board of
Directors by the Certificate of Incorporation, the Board of
Directors, on Aug. 11, 1993, [by unanimous written consent], duly
authorized and adopted the following resolutions providing for an
issue of a series of its Preferred Stock to be designated "Series
A Convertible Preferred Stock."
"RESOLVED, that an issue of a series of Preferred Stock,
$.001 par value per share, of the Corporation (the Preferred
Stock of the Corporation being herein referred to as "Preferred
Stock", which term shall include any additional shares of
Preferred Stock of the same class hereafter authorized to be
issued by the Corporation), consisting of Ten Thousand (10,000)
shares is hereby provided for, and the voting power, designation,
preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or
restrictions thereof, of such series shall be as set forth below:
Designation: Number of Shares.
(a) The designation of such series of Preferred Stock shall
be "Series A Convertible Preferred Stock" (hereinafter referred
to as the "Convertible Preferred Stock") and the number of
authorized shares constituting the Convertible Preferred Stock is
Ten Thousand (10,000). The Convertible Preferred Stock shall be
deemed a separate class of Preferred Stock apart from any other
series of Preferred Stock.
Part 1. Dividends.
1A. Entitlement. The holders of Convertible Preferred
Stock shall be entitled to receive cumulative cash dividends when
and as declared by the Corporation's Board of Directors out of
funds available therefor under applicable law. Such dividends
shall be paid to the holders of record at the close of business
on the date specified by the Board of Directors at the time such
dividend is declared; provided, however, that such date shall not
be more than sixty (60) days nor less than ten (10) days prior to
each respective Dividend Payment Date (as defined below).
1B. Accrual Rate. Dividends on each share of Convertible
Preferred Stock shall accrue cumulatively on a daily basis at the
rate of 8.00% per annum of the Liquidation Value (as defined
below) thereof, but not including such portion of the Liquidation
Value, if any, which constitutes accrued and unpaid dividends,
from and including the date of issuance of such share to and
including the date on which the Redemption Price (as defined
below) of such share is paid or the date on which such share in
converted into Common Stock. Such dividends shall accrue whether
or not they have been declared and whether or not there are
profits, surplus or other funds of the Corporation legally
available for the payment of dividends. The date on which the
Corporation initially issues any share of the Convertible
Preferred Stock will be deemed to be its "date of issuance"
regardless of the number of times transfer of any such share is
made on the stock records maintained by or for the Corporation
and regardless of the number of certificates which may be issued
to evidence any such share.
1C. Dividend Payment Dates. Dividends on the Convertible
Preferred Stock shall be payable semi-annually on June 30 and
December 31 of each year (the "Dividend Payment Dates"). All
dividends which have accrued on each share of Convertible
Preferred Stock outstanding during the six-month period ending
upon each such Dividend Payment Date will be added to the
Liquidation Value of such share and will remain a part thereof
until such dividends are paid.
1D. Certain Restrictions. The Corporation shall not,
without the prior written consent of the holders of a majority of
Convertible Preferred Stock, (i) declare, order or pay any
dividend (other than dividends payable solely in shares of stock)
on any Junior Securities or (ii) redeem any shares of Junior
Securities, unless and until the Corporation shall have redeemed
all of the outstanding Convertible Preferred Stock in accordance
with Part 3 below.
1E. Distribution of Partial Dividend Payments; Fractional
Shares. If at any time the Corporation pays less than the total
amount of dividends then accrued with respect to the Convertible
Preferred Stock, such payment will be distributed ratably among
the holders of such Convertible Preferred Stock based upon the
aggregate accrued but unpaid dividends on such Convertible
Preferred Stock held by each holder. Each fractional share of
Convertible Preferred Stock outstanding, if any, shall be
entitled to a ratably proportionate amount of all dividends to
which each outstanding full share of such Convertible Preferred
Stock is entitled hereunder.
Part 2. Liquidation.
Upon any liquidation, dissolution or winding up of the
Corporation, the holders of Convertible Preferred Stock will be
entitled to be paid, before any distribution or payment is made
upon any Junior Securities, an amount in cash equal to the
aggregate Liquidation Value of all shares of Convertible
Preferred Stock outstanding, and the holders of Convertible
Preferred Stock will not be entitled to any further payment. If
upon any such liquidation, dissolution or winding up of the
Corporation, the Corporation's assets to be distributed among the
holders of Convertible Preferred stock are insufficient to permit
payment to such holders of the aggregate amount which they are
entitled to be paid, then the entire assets to be distributed
will be distributed ratably among such holders based upon the
aggregate Liquidation Value of the Convertible Preferred Stock
held by each such holder. The Corporation will mail written
notice of such liquidation, dissolution or winding up not less
than 30 days prior to the payment date stated therein, to each
record holder of Convertible Preferred Stock. Neither the
consolidation or merger of the Corporation into or with any other
corporation or corporations, nor the sale or transfer by the
Corporation of all or any part of its assets, nor the reduction
of the capital stock of the Corporation, will be deemed to be a
liquidation, dissolution or winding up of the Corporation within
the meaning of this Part 2.
Part 3. Redemptions.
3A. For each share of Convertible Preferred Stock which is
to be redeemed, the Corporation will be obligated on the
Redemption Date (as defined below) to pay to the holder thereof
(upon surrender by such holder at the Corporation's principal
office or to the corporation's transfer agent of the
certificate(s) representing such shares of Convertible Preferred
Stock) an amount in immediately available funds equal to the
Liquidation Value thereof. If the funds of the Corporation
legally available for redemption of Convertible Preferred Stock
on any Redemption Date are insufficient to redeem the total
number of shares of Convertible Preferred Stock to be redeemed on
such date, those funds which are legally available will be used
to redeem the maximum. possible number of shares of Convertible
Preferred Stock ratably among the holders of the Convertible
Preferred Stock to be redeemed based upon the Liquidation Value
of such Convertible Preferred Stock held by each such holder. At
any time thereafter when additional funds of the Corporation are
legally available for the redemption of convertible Preferred
Stock, such funds will immediately be used to redeem the balance
of the Convertible Preferred Stock which the Corporation has
become obligated to redeem on any Redemption Date but which it
has not redeemed.
3B. Notice of Redemption. The Corporation will mail
written notice of each redemption of Convertible Preferred Stock
to each record holder of Convertible Preferred Stock not more
than sixty (60) nor less then twenty (20) days prior to the date
on which such redemption in to be made. In case fewer than the
total number of shares of Convertible Preferred Stock represented
by any certificate are redeemed, a new certificate representing
the number of unredeemed shares of Convertible Preferred Stock
will be issued to the holder thereof without cost to such holder
within ten business days after surrender of the certificate
representing the redeemed Convertible Preferred Stock.
3C. Redemption Date. On the date on which the Liquidation
value of any Convertible Preferred Stock is paid all rights,
including, but not limited to any right of conversion, of the
holder of such Convertible Preferred Stock will cease, and such
Convertible Preferred Stock will not be deemed to be outstanding.
3D. Redeemed or Otherwise Acquired Shares. Any shares of
Convertible Preferred Stock which are redeemed or otherwise
acquired by the Corporation shall be canceled and may not be
reissued.
3E. Optional Redemption and Mandatory Conversion. The
Corporation may at any time redeem all or any portion of the
Convertible Preferred Stock at a price per share equal to the
Liquidation Value thereof, including any accrued and unpaid
dividends. In the event the Corporation elects to redeem
Convertible Preferred Stock under certain circumstances contained
herein, the holders of such Convertible Preferred Stock shall be
required to convert Convertible Preferred Stock into Common Stock
as provided in Part 6D below.
3F. Redemptions upon Certain Voluntary Corporate Actions.
Upon the occurrence of a (i) breach by the Corporation of the
Registration Agreement (as herein defined) (ii) breach by the
Corporation of Section 6.5 or Section 6.6 of the Debt
Restructuring Agreement (as herein defined), or (iii) Fundamental
Change, the Corporation shall redeem all of the outstanding
Convertible Preferred Stock at a price per share equal to the
Liquidation Value thereof including any accrued and unpaid
dividends to the Redemption Date. The term "Fundamental Change"
means (a) a sale or transfer of all or substantially all of the
assets of the Corporation on a consolidated basis in any
transaction or series of related transactions (other than sales
in the ordinary course of business) and (b) any merger or
consolidation to which the Corporation is a party, except for a
merger in which the Corporation is the surviving corporation and,
after giving effect to such merger, the holders of the
Corporation's outstanding capital stock (on a fully-diluted
basis) immediately prior to such merger will own the
Corporation's outstanding capital stock (on a fully-diluted
basis) having a majority of the ordinary voting power to elect
the Corporation's board of directors.
Part 4. Events of Noncompliance
4A. Definition. An Event of Noncompliance will be deemed
to have occurred if:
(i) the Corporation fails to make any redemption payment
with respect to the Convertible Preferred Stock which it is
obligated to make hereunder, whether or not such payment in
legally permissible;
(ii) the Corporation breaches or otherwise fails to perform
or observe any covenant or agreement set forth herein or an Event
of Default occurs under the Debt Restructuring Agreement; or
(iii) the Corporation fails to pay dividends to the holders
of Convertible Preferred Stock for two (2) consecutive Dividend
Payment Dates; or
(iv) any representation or warranty contained in the Debt
Restructuring Agreement, or any information contained in writing
furnished by the Corporation or any subsidiary of the Corporation
to any holder of Convertible Preferred Stock, is false or
misleading in any material respect on the date made or furnished;
or
(v) the Corporation makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts
generally as they become due; or an order, judgment or decree is
entered adjudicating the Corporation bankrupt or insolvent; or
any order for relief with respect to the Corporation is entered
under the Federal Bankruptcy Code; or the Corporation petitions
or applies to any tribunal for the appointment of a custodian,
trustee, receiver or liquidator of the Corporation or of any
substantial part of the assets of the Corporation, or commences
any proceeding relating to the, Corporation under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction or any such
petition or application is filed, or any such proceeding is
commenced, against the Corporation and either (a) the Corporation
by any act indicates its approval thereof, consent thereto or
acquiescence therein or (b) such petition, application or
proceeding is not dismissed within sixty (60) days.
4B. Consequences of Certain Events of Noncompliance.
(i) If an Event of Noncompliance has occurred and continued
for a period of 30 days, the holder or holders of a majority of
the Convertible Preferred Stock then outstanding may demand (by
written notice delivered to the Corporation) (a) immediate
acceleration of the right to convert the Convertible Preferred
Stock into shares of Common Stock under Part 6B below such that
100% of the Convertible Preferred Stock shall be vested in such
holder or holders and eligible for conversion into Common Stock
on the date of such written notice, which notice may include a
written notice of conversion of all or a portion of such shares
pursuant to Part 6A below. In the event that the holder or
holders of Convertible Preferred Shares thereafter convert(s)
shares of Convertible Preferred Stock into shares of Common
Stock, the Corporation shall also be required to issue to such
holder or holders that number of additional shares of Common
Stock into which the shares of Convertible Preferred Stock so
converted would have otherwise been convertible under Part 6C
below had such shares of Convertible Preferred Stock not been so
converted. The obligation of the Corporation under the preceding
sentence to issue additional shares shall rise at any time as
such shares of Convertible Preferred Stock would have been
convertible into additional shares of Common Stock, and at any
such time, the Corporation shall immediately deliver to such
holder or holders a new certificate for such additional shares of
Common Stock. The Corporation will convert all or any portion of
such holder or holders' Convertible Preferred Stock into Common
Stock in accordance with the conversion procedure set forth in
Part 6A below.
(ii) If an Event of Noncompliance has occurred and
continued for a period of 30 days, the holder or holders of a
majority of the Convertible Preferred Stock then outstanding (the
"Holder") may also demand that the Board of Directors be deemed
dissolved and all positions vacated. In this connection, the
Holder may schedule a meeting of all stockholders of the
Corporation upon at least twenty-four (24) hours advance notice
either in writing, telegram or by a telephonic communication to
all stockholders at which meeting a new Board of Directors shall
be elected. Notwithstanding anything to the contrary in the Debt
Restructuring Agreement, herein or in the Corporation's By-laws,
it is expressly agreed that the Holder acting in person or by
proxy may elect a majority of the members of the Board of
Directors. The remaining members of the Board of Directors may
be elected or designated by holders of a majority of the Common
Stock. Upon such election, the Board of Directors, by majority
vote, may conduct the business and affairs of the Corporation and
may also terminate the employment of any employee of the
Corporation or his or her official position with the Corporation,
or both, subject to any existing employment agreements. The
Holders' directors shall serve as directors until such time as
the Event of Noncompliance has been remedied or the Convertible
Preferred Stock converted entirely to Common Stock or redeemed in
full, at which time such directors shall resign.
(iii) If any Event of Noncompliance exists, each Holder
will also have any other rights which such holder may have been
afforded under any contract or agreement at any time and any
other rights which such Holder may have pursuant to applicable
law.
Part 5. Voting Rights. The voting powers of the holders of
Convertible Preferred Stock include:
(i) the right, as a class, to elect two (2) directors to
the Corporation's Board of Directors. At least one such director
elected by the holders of Convertible Preferred Stock shall be a
standing member of each committee of the Board of Directors of
the Corporation, unless the holders otherwise agree; and
(ii) the exclusive right, as a class, to approve any
enlargement of the Corporation's Board of Directors in excess of
nine (9) directors.
Except an otherwise provided herein and as otherwise
provided by law, the Convertible Preferred Stock will have no
other voting rights.
Part 6. Conversion Rights.
6A. Conversion Procedure. Subject to the provisions set
forth below, each share of Convertible Preferred Stock shall be
convertible at the option of the holder thereof, in the manner
hereinafter set forth, into that number of fully paid and
nonassessable shares of Common Stock determined as set forth
below. The number of shares of Common Stock into which each
share of Convertible Preferred Stock may be converted shall be
increased in certain instances as provided in Part 6C below or
decreased in certain circumstances as provided in Part 6 below.
Any holder of Convertible Preferred Stock desiring to
convert such shares into shares of Common Stock shall surrender
the certificate or certificates for the shares being converted,
duly endorsed or assigned to the Corporation or in blank, at the
principal office of the Corporation or at a bank or trust company
appointed by the Corporation for that purpose, accompanied by a
written notice of conversion specifying the number of shares of
Convertible Preferred Stock to be converted and the name or names
in which such holder wishes the certificate or certificates for
shares of Common Stock to be issued; in case such notice shall
specify a name or names other than that of such holder, such
notice shall be accompanied by payment of all transfer taxes
payable upon the issue of shares of Common Stock in such name or
names. After receipt of such notice of conversion, the
Corporation shall either:
(i) within sixty (60) days after receipt of such notice,
issue and deliver or cause to be issued and delivered to such
holder a certificate or certificates for shares of Common Stock
resulting from such conversion; or
(ii) within sixty (60) days after receipt of such notice,
redeem all or any portion of the Convertible Preferred Stock
specified in the aforementioned notice at an amount in
immediately available funds equal to the Liquidation Value
thereof, including any accrued and unpaid dividends.
In case less than all of the shares of Convertible Preferred
Stock represented by a certificate are to be converted by a
holder, upon such conversion the Corporation shall also deliver
or cause to be delivered to such holder a certificate or
certificates for the shares of Convertible Preferred Stock not so
converted.
6B. Basic Conversion Rights. The right to convert the
Convertible Preferred Stock into shares of Common Stock shall
vest over a four-year period in annual increments, as set forth
below:
Date Percentage of Cumulative Percentage
Convertible Preferred of
Stock Becoming Convertible Preferred
Eligible for Eligible for
Conversion on Such Conversion
Date on and after Such Date
1st Anniversary 30% 30%
of Effective
Date
2nd Anniversary 20% 50%
of Effective
Date
3rd Anniversary 25% 75%
of Effective
Date
4th Anniversary 25% 100%
of Effective
Date
Subject to Parts 6C and 6D below, each share of Convertible
Preferred Stock is convertible into 325 newly issued shares of
Common Stock of the Corporation. The Cumulative Percentage of
Convertible Preferred Stock Eligible for Conversion at any time
shall be reduced by the percentage of Convertible Preferred Stock
previously redeemed under Part 6D below. If shares of Cumulative
Preferred Stock are held by more than one holder, each such
holder shall be entitled to convert only the applicable
percentage of such shares held by such holder.
6C. Additional Conversion Rights. If the Corporation
receives $2,000,000 of proceeds from equity financing during the
twelve (12) month period ending on the first anniversary date of
the Effective Date, each share of Convertible Preferred Stock
will be convertible into an additional number of shares of Common
Stock equal in the aggregate to 40% of the Plan Stock issuable
from time to time under the Plans as described in Section 7.09 of
the Agreement and Plan of Merger, such conversion rights to be
allocated proportionately to each share of Convertible Preferred
Stock issued and outstanding upon the date shares of Plan Stock
become issuable. If the Corporation fails to raise $2,000,000
from equity financing within such period each share of
Convertible Preferred Stock shall be convertible into an
additional 300 shares of Common Stock pursuant to the Plans.
6D. Mandatory Conversion. In the event the Corporation
redeems shares of Convertible Preferred Stock in certain minimum
amounts described below on or prior to June 30, 1994, Convertible
Preferred Stock shall be automatically converted into Common
Stock at the Adjusted Conversion Rate (as hereinafter defined) as
follows: (i) if the Corporation redeems at least 2,000 shares of
Convertible Preferred Stock by December 31, 1993, one (1) share
of Convertible Preferred Stock will be converted into Common
Stock at the Adjusted Conversion Rate for each five (5) shares of
Convertible Preferred Stock so redeemed (up to a maximum of 6,000
shares so redeemed); (ii) if the Corporation redeems at least
2,000 shares of Convertible Preferred Stock by March 31, 1994,
one (1) share of Convertible Preferred Stock will be converted
into common Stock at the Adjusted Conversion Rate for each five
(5) shares of Convertible Preferred Stock so redeemed; and (iii)
if the Corporation redeems at least 4,000 shares of Convertible
Preferred Stock by June 30, 1994, one (1) share of Convertible
Preferred Stock will be converted into Common Stock at the
Adjusted Conversion Rate for each 5 shares of Convertible
Preferred Stock so redeemed (up to a maximum of 6,000 shares so
redeemed). Notwithstanding the foregoing, in no event shall more
than 1,200 shares of Convertible Preferred Stock be converted
into Common Stock at the Adjusted Conversion Rate. The Adjusted
Conversion Rate means 2.5 shares of Common Stock for each share
of Convertible Preferred Stock automatically converted under this
Part 6D. In the event the mandatory conversion set forth in this
Part 6D is effectuated, the holder or holders of the Convertible
Preferred Stock being converted shall promptly surrender the
certificate or certificates for the shares being converted. Upon
receipt of such certificate or certificates, the Corporation
shall promptly issue and deliver or cause to be issued and
delivered to such holder or holders a certificate or certificates
for shares of Common stock resulting from such conversion and, if
less than all of the shares of Convertible Preferred Stock
represented by a certificate are to be converted under this Part
6D, the Corporation shall also deliver or cause to be delivered
to such holder a certificate or certificates for the shares of
Convertible Preferred Stock not so converted.
6E. Fundamental Changes. In case the Corporation shall
effect any capital reorganization of the Common Stock or shall
consolidate, merge or engage in a statutory share exchange with
or into any other corporation (other than a consolidation, merger
or share exchange in which the Corporation is the surviving
corporation and each share of Common Stock outstanding
immediately prior to such consolidation or merger is to remain
outstanding immediately after such consolidation or merger) or
shall sell or transfer all or substantially all its assets to any
other corporation, lawful provision shall be made as a part of
the terms of such transaction whereby the holders of shares of
the Convertible Preferred Stock shall receive upon conversion
thereof, in lieu of each share of Common Stock which would have
been issuable upon conversion of such stock if converted
immediately prior to the consummation of such transaction, the
same kind and amount of stock (or other securities, cash or
property, if any) as may be issuable or distributable in
connection with such transaction with respect to each share of
Common Stock outstanding at the effective time of such
transaction.
6F. Conversion Date. Conversion shall be deemed to have
been made as of the date of surrender of certificates for the
shares of Convertible Preferred Stock to be converted, and the
giving of written notice, as prescribed in Part 6A, or as
otherwise prescribed by Part 4B(i) or Part 6D above, and the
person entitled to receive the Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder
of such Common Stock on such date. The Corporation shall not be
required to deliver certificates for shares of its Common Stock
while the stock transfer books for such stock or for the
Convertible Preferred Stock are duly closed for any purpose, but
certificates for shares of Common Stock shall be issued and
delivered as soon an practicable after the opening of such books.
6G. Converted Shares and Common Stock Held for Conversion.
Any shares of Convertible Preferred Stock which at any time have
been converted shall be canceled and may not be reissued. The
Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock, for the
purpose of issuance upon conversion of shores of Convertible
Preferred Stock, the full number of shares of Common Stock then
issuable or which may become issuable upon the conversion of all
shares of Convertible Preferred Stock then outstanding and shall
take all action necessary so that shares of Common Stock so
issued will be validly issued, fully paid and nonassessable.
6H. Taxes. The Corporation will pay any and all stamp or
similar taxes that may be payable in respect of the issuance or
delivery of shares of Common Stock on conversion of shares of
Convertible Preferred Stock. The Corporation shall not, however,
be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of shares of
Common Stock in a name other than that in which the shares of
Convertible Preferred Stock so converted were registered, and no
such issuance or delivery shall be made unless and until the
person requesting such issuance has paid to the Corporation the
amount of any such tax or has established to the satisfaction of
the Corporation that such tax has been paid.
Part 7. Definitions.
"Agreement and Plan of Merger" means that certain Agreement
and Plan of Merger, dated as of June 7, 1993, by and among the
Corporation, Whitney Partners, Inc. and AFGL International,
Inc., as such agreement was in effect at August 20, 1993.
"Business Day" shall mean a day other than a Saturday,
Sunday or other day on which commercial banks in New York, New
York or Chicago, Illinois are authorized or required by law to
close.
"Common Stock" means the Common Stock, $0.01 par value per
share, of the Corporation and any capital stock of any class of
the Corporation hereafter authorized which is not limited to a
fixed sum or percentage of par or stated value in respect to the
rights of the holders thereof to participate in dividends or in
the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation.
"Debt Restructuring Agreement" means that certain Debt
Restructuring Agreement, dated as of Aug. 11, 1993, by and among
the Corporation, Whitney Partners, Inc., AFGL International, Inc.
and Foote, Cone & Belding Communications, Inc. as such agreement
may from time to time be amended in accordance with its terms.
"Effective Date" shall have the meaning set forth in Section
8.03 of the Agreement and Plan of Merger.
"Junior Securities" means any of the Corporation's equity
securities other than the Convertible Preferred Stock.
"Liquidation Value" of any Convertible Preferred Stock as of
any particular date will be equal to $250 per share plus all
unpaid cumulative dividends on the Convertible Preferred Stock.
"Person" means an individual, a partnership, a corporation,
an association, a joint stock company, a trust, a joint venture,
an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Plans" shall refer to one or more compensation plans or
arrangements adopted by the Corporation's Board of Directors
pursuant to Section 7.09 of the Agreement and Plan of Merger.
"Plan Stock" shall refer to the up to 5,000,000 shares of
the Corporation's Common Stock which may be issued to the
officers, directors and key employees of the Corporation, Whitney
Partners, Inc. and AFGL Inc. under one or more Plans adopted by
the Corporation's Board of Directors pursuant to Section 7.09 of
the Agreement and Plan of Merger.
"Registration Agreement" means that certain Registration
Agreement, dated as of August 24 1993, by and between the
Corporation and Foote, Cone & Belding Communications, Inc., as
such agreement may from time to time be amended in accordance
with its terms.
"Redemption Date" as to any Convertible Preferred Stock
means the date specified in the notice of any redemption at the
Corporation's option or the applicable date specified herein in
the case of any other redemption; provided that no such date will
be a Redemption Date unless the applicable Liquidation Value is
actually paid in full on such date, and, if not so paid in full,
the Redemption Date will be the date on which Such Liquidation
Value is fully paid.
Part 8. Amendment and Waiver. No amendment, modification or
waiver will be binding or effective with respect to any provision
hereof without the prior written consent of the holders of a
majority of. the Convertible Preferred Stock outstanding at the
time such action is taken; provided that no such action will
change the amount payable on redemption of the Convertible
Preferred Stock or the times at which redemption of the
Convertible Preferred Stock is to occur, or the percentage
required to approve such change, without the prior written
consent of the holders of at least two-thirds of the Convertible
Preferred Stock then outstanding; and, provided further, that no
change in the terms hereof may be accomplished by merger or
consolidation of the Corporation with another corporation unless
the Corporation has obtained the prior written consent of the
holders of the applicable percentage of the Convertible Preferred
Stock then outstanding.
Part 9. Notices. All notices or communications, unless
otherwise specified in these resolutions, shall be sufficiently
given if in writing and given in accordance with Section 8.1 of
the Debt Restructuring Agreement.
Part 10. Ranking. For purposes hereof, all Junior Securities
shall be deemed to rank junior to the Convertible Preferred Stock
as to dividends or distribution of assets upon liquidation,
dissolution or winding up.
Part 11. Captions. The captions and headings set forth in these
resolutions are for convenience of reference only and are not a
part of, nor shall they affect the interpretation or construction
of, these resolutions.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be executed by Gary Goldstein, its President, and
attested to by Barry Roseman, its Secretary, this 19th day of
August, 1993.
21st Century Holdings, Inc.
By: /s/
Gary Goldstein
Its President
ATTEST
By: /s/
Barry Roseman
Its Secretary
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss
COUNTY OF NEW YORK )
I, Gary Goldstein, hereby certify that I am the duly elected
and qualified President of 21st Century Holdings, Inc., that the
foregoing instrument is the act and deed of the Corporation and
the facts stated therein are true.
By: /s/
Gary S. Goldstein,
President
Subscribed and sworn to before me the undersigned, a Notary
Public in and for said county and state.
Notary Public