EXHIBIT 3.3
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A PREFERRED STOCK
of
BOSTON LIFE SCIENCES, INC.
Pursuant to Section 151 of the
General Corporation Law of the
State of Delaware
We, S. David Hillson, President, and Joseph P. Hernon, Secretary, of
Boston Life Sciences, Inc. (the "Corporation"), organized and existing under the
General Corporation Law of the State of Delaware, in accordance with the
provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Amended and Restated Certificate of Incorporation of the Corporation, as
amended, the Board of Directors on June 28, 1999 adopted the following
resolution creating a series of 250,000 shares of Preferred Stock designated as
Series A Preferred Stock;
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its Amended
and Restated Certificate of Incorporation, as amended, a series of Preferred
Stock of the Corporation be and it hereby is created, and that the designation
and amount thereof and the voting powers, preferences, and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof, are as follows:
Section 1. Designation and Amount. The shares of such series shall be
----------------------
designated as "Series A Preferred Stock" and the number of shares constituting
such series shall be 250,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors, provided that (i) no increase
shall increase the number of shares of Series A Preferred Stock to a number
above the total number of authorized shares of Preferred Stock and (ii) no
decrease shall reduce the number of shares of Series A Preferred Stock to a
number less than the number of shares of Series A Preferred Stock then
outstanding plus the number of shares of Series A Preferred Stock reserved for
issuance upon the exercise of outstanding options, rights or
warrants, or the conversion of any outstanding securities, issued by the
Corporation exercisable for or convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
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(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the holders
of shares of Series A Preferred Stock, in preference to the shares of Common
Stock, par value $.01 per share, of the Corporation (the "Common Stock"), and
any other stock of the corporation ranking junior to the Series A Preferred
Stock with respect to dividends, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the 15th day of March, June,
September and December in each year (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
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) 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 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 Series A Preferred Stock. In the event the Corporation
shall at any time after September 26, 1991 (the "Rights Declaration Date") (i)
declare or pay any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a small number of shares, then in each such case the amount to
which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence 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; provided, however, that no such
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adjustment shall be made pursuant to this section with respect to the one-for-
ten reverse stock split of the Common Stock that was approved by the
stockholders of the Corporation on June 6, 1997.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock): provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
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(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Preferred Stock, 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 in a date after
the record date for the determination of holders of shares of Series A Preferred
Stock 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 shares of Series
A Preferred Stock in an amount less than the total amount of such 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. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 60 days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. In addition to any other voting rights
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required by law, the holders of shares of Series A Preferred Stock shall have
the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder thereof
to 100 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 Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the number of votes per share to which holders of shares of Series A Preferred
Stock 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, provided however, that no such
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adjustment shall be made pursuant to this section with respect to the one-for-
ten reverse stock split of the Common Stock that was approved by the
stockholders of the Corporation on June 6, 1997.
(B) Except as otherwise provided herein, in any other
Certificate of Designation, Preferences and Rights establishing a series of
Preferred Stock or any similar stock, or by law, the holders of shares of Series
A Preferred Stock and the holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote a stockholders of the
Corporation.
(C) (i) If at any time dividends on any Series A Preferred Stock
shall be in arrears in an amount equal to six quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and
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for the current quarterly dividend period on all shares of Series A Preferred
Stock then outstanding shall have been declared and paid or set apart for
payment. During each default period, all holders of Preferred Stock (including
holders of the Series A Preferred Stock) with dividends in arrears in an amount
equal to six quarterly dividends thereon, voting as a class, irrespective of
series, shall have the right to elect two Directors.
(ii) During any default period, such voting right of the holders
of Series A Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section 3(C) or at any annual
meeting of the stockholders, and thereafter at annual meetings of stockholders,
provided that neither such voting right nor the right of the holders of any
other series of Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the holders of ten
percent in number of shares of Preferred Stock outstanding shall be present in
person or by proxy. The absence of a quorum or the holders of Common Stock shall
not affect the exercise by the holders of Preferred Stock of such voting right.
At any meeting at which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they shall have the
right, voting as a class, to elect Directors to fill such vacancies, if any, in
the Board of Directors as may then exist up to two Directors or, if such right
is exercised at an annual meeting, to elect two Directors. If the number which
may be so elected at any special meeting does not amount to the required number,
the holders of the Preferred Stock shall have the right to make such increase in
the number of Directors as shall be necessary to permit the election by them of
the required number. After the holders of the Preferred Stock shall have
exercised their right to elect Directors in any default period and during the
continuance of such period, the number of Directors shall not be increased or
decreased except by vote of the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to or pari passu
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with the Series A Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or stockholders
owing in the aggregate not less than ten percent of the total number of shares
of Preferred Stock outstanding, irrespective of series, may request, the calling
of a special meeting of the holders of Preferred Stock, which meeting shall
thereupon be called by the President, a Vice President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at which holders
of Preferred Stock are entitled to vote pursuant to this paragraph (C)(iii)
shall be given to each holder of record of Preferred Stock by mailing a copy of
such notice to him at his last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or in default of the
calling of such meeting within 60 days after such order or request, such meeting
may be called on similar notice by any stockholder or stockholders owning in the
aggregate not less than ten percent of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of the
stockholders.
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(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Preferred
Stock shall have exercised their right to elect two Directors voting as a class,
after the exercise of which right (x) the Directors so elected by the holders of
the Preferred Stock shall continue in office until their successors shall have
been elected by such holders or until the expiration of the default period, and
(y) and vacancy in the Board of Directors may (except as provided in paragraph
(C)(ii) of this Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which elected
the Director whose office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill vacancies as provided in
clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred Stock
as a class shall terminate, and (z) the number of Directors shall be such number
as may be provided for in the Certificate of Incorporation or by-laws
irrespective of any increase made pursuant to the provisions of paragraph
(C)(ii) of this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the Certificate of Incorporation
of by-laws). Any vacancies in the Board of Directors effected by the provisions
of clauses (y) and (z) in the proceeding sentence may be filled by a majority of
the remaining Directors.
(D) Except as set forth herein, holders of Series A Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
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(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on or make any other distributions
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in
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arrears in proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
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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 shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein, in the Certificate
of Incorporation, or in any other Certificate of Designation, Preferences and
Rights establishing a series of Preferred Stock or any similar stock, or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
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liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of the Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or
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winding up) with the Series A Preferred Stock, except distributions made ratably
on the Series A Preferred Stock and all other such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time after the Rights Declaration Date declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1) of the
preceding sentence 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;
provided, however, that no such adjustment shall be made pursuant to this
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section with respect to the one-for-ten reverse stock split of the Common Stock
that was approved by the stockholders of the Corporation on June 6, 1997.
Section 7. 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 shares
of Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 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 or Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in share of Common Stock (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding 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 Stock 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; provided, however, that no such adjustment shall be made pursuant to this
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section with respect to the one-for-ten reverse stock split of the Common Stock
that was approved by the stockholders of the Corporation on June 6, 1997.
Section 8. No Redemption. The shares of Series A Preferred Stock
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shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank junior
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with respect to payment of dividends and on liquidation of all other series of
the Corporation's Preferred Stock except to the extent that any such other
series specifically provides that it shall rank on a parity with or junior to
the Series A Preferred Stock.
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Section 10. Amendment. The Certificate of Incorporation of the
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Corporation and these resolutions shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of a majority of the outstanding shares of Series A
Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Preferred Stock may be
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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 Stock.
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IN WITNESS WHEREOF, this certificate of Designation has been executed by
the Corporation by its President and Secretary as of this 30 day of Dec , 1999.
BOSTON LIFE SCIENCES, INC.
By: /s/ S. David Hillson
-------------------------
S. David Hillson
President
By: /s/ Joseph P. Hernon
-------------------------
Joseph P. Hernon
Vice President, Secretary and
Chief Financial Officer
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CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BOSTON LIFE SCIENCES, INC.
Pursuant to Section 242 of the
Delaware General Corporation Law
BOSTON LIFE SCIENCES, INC., (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1. That the Amended and Restated Certificate of Incorporation of the
Corporation was filed in the office of the Secretary of State of Delaware on
March 29, 1998 and amendments there to were subsequently duly filed and recorded
(the Amended and Restated Certificate of Incorporation together with such
amendments shall be hereinafter referred to as the "Certificate").
2. That the Board of Directors of the Corporation duly adopted
resolutions proposing and declaring advisable the following amendment (the
"Amendment") to the Certificate:
RESOLVED, the Board of Directors hereby approves and recommends
to the Company's stockholders that the first sentence of Article
FOURTH of the Certificate be, and hereby is, subject to
stockholder approval at the 2000 Annual Meeting of Stockholders
of the Corporation, amended in its entirety to read as follows:
"FOURTH: The aggregate number of shares which the corporation
shall have authority to issue is 41,000,000 to be divided into
(1) 40,000,000 shares of Common Stock, par value $.01 per share,
and (2) 1,000,000 shares of Preferred Stock, par value $.01 per
share, with the powers, preferences and other rights as described
in Exhibit A attached hereto and made a part thereof."
3. That thereafter a majority of the holders of the stock of the
Corporation entitled to vote thereon voted in favor of the Amendment at a
meeting of the stockholders duly held on June 13, 2000.
4. That the foregoing amendment to the Certificate of Incorporation
was duly adopted in accordance with the provisions of Section 242 of the General
Corporation Law.
IN WITNESS WHEREOF, said Boston Life Sciences, Inc. has caused this
Certificate to be executed by its duly authorized officers this 14th day of
June, 2000.
BOSTON LIFE SCIENCES, INC.
/s/ S. David Hillson
-------------------------------------
S. David Hillson
President and Chief Executive Officer
CERTIFICATE OF CORRECTION
TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BOSTON LIFE SCIENCES, INC.
BOSTON LIFE SCIENCES, INC. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
1. The name of the Corporation is Boston Life Sciences, Inc.
2. An Amended and Restated Certificate of Incorporation of the Corporation
was filed by the Secretary of the State of Delaware on March 29, 1996, and said
Certificate requires correction as permitted by subsection (f) of Section 103 of
The General Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said certificate to be corrected as
follows: the phrase "with the powers, preferences and other rights as described
in Exhibit A attached hereto and made a part thereof" contained in the eighth
through tenth lines of Section Fourth to the Certificate, should be deleted and
a period inserted in lieu thereof.
IN WITNESS WHEREOF, the undersigned Secretary has hereunto set his hand
this 14th day of March, 2001.
BY: /s/ Joseph P. Hernon
-------------------------------
Joseph P. Hernon
Secretary
CERTIFICATE OF ELIMINATION
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
BOSTON LIFE SCIENCES, INC.
BOSTON LIFE SCIENCES, INC. (the "Corporation"), a corporation organized and
existing under The General Corporation Law of the State of Delaware, does hereby
certify that pursuant to Sections 141 and 151 of the Delaware General
Corporation Law and the authority vested in the Board of Directors of the
Corporation by Article Fourth of the Corporation's Amended and Restated
Certificate of Incorporation, the Board of Directors of the Corporation, by
resolution at a meeting on March 1, 2001, did authorize and direct that the
number of authorized shares of Preferred Stock designated as Series A
Convertible Preferred Stock under any Series A Certificate of Designations,
Preferences and Rights filed prior to such date be reduced to 0, and did
authorize and direct that because none of the shares of such series are
outstanding and none will be issued subject to any such Series A Certificate of
Designations, Preferences and Rights, that such designation of Series A
Convertible Preferred Stock shall be eliminated pursuant to the authority
granted to them under Section 151(g) of the Delaware General Corporation Law.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be
signed by Joseph P. Hernon, its Secretary, this 14th day of March, 2001.
BY: /s/ Joseph P. Hernon
-------------------------------
Joseph P. Hernon
Secretary
CERTIFICATE OF ELIMINATION
OF
SERIES C CONVERTIBLE PREFERRED STOCK
OF
BOSTON LIFE SCIENCES, INC.
BOSTON LIFE SCIENCES, INC. (the "Corporation"), a corporation organized and
existing under The General Corporation Law of the State of Delaware, does hereby
certify that pursuant to Sections 141 and 151 of the Delaware General
Corporation Law and the authority vested in the Board of Directors of the
Corporation by Article Fourth of the Corporation's Amended and Restated
Certificate of Incorporation, the Board of Directors of the Corporation, by
resolution at a meeting on March 1, 2001, did authorize and direct that the
number of authorized shares of Preferred Stock designated as Series C
Convertible Preferred Stock be reduced to 0, and did authorize and direct that
because none of the shares of such series are outstanding and none will be
issued subject to the Series C Certificate of Designations, Preferences and
Rights, that such designation of Series C Convertible Preferred Stock shall be
eliminated pursuant to the authority granted to them under Section 151(g) of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be
signed by Joseph P. Hernon, its Secretary, this 14th day of March, 2001.
BY: /s/ Joseph P. Hernon
-------------------------------
Joseph P. Hernon
Secretary
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A CONVERTIBLE PREFERRED STOCK
of
BOSTON LIFE SCIENCES, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
BOSTON LIFE SCIENCES, INC., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), does hereby certify that,
pursuant to the authority conferred on the Board of Directors of the Corporation
by the Amended and Restated Certificate of Incorporation, as amended, of the
Corporation and in accordance with Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors of the Corporation adopted the
following resolution establishing a series of 25,000 shares of Preferred Stock
of the Corporation designated as "Series A Convertible Preferred Stock".
RESOLVED, That pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of its
Amended and Restated Certificate of Incorporation, a new series of
Preferred Stock of the Corporation, designated as "Series A Preferred
Stock", be and hereby is created, and that the amount thereof and the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series and the qualifications,
limitations or restrictions thereof, are as follows:
Series A Convertible Preferred Stock
------------------------------------
1. Designation and Amount. There shall be a series of Preferred
----------------------
Stock designated as "Series A Convertible Preferred Stock" and the number of
shares constituting such series shall be 25,000. Such series is referred to
herein as the "Series A Convertible Preferred Stock". Such number of shares may
be increased or decreased by resolution of the Board of Directors of the
Corporation; provided, however, that no decrease shall reduce the number of
shares of Series A Convertible Preferred Stock to less than the number of shares
then issued and outstanding.
2. Dividends. Subject to the prior and superior rights of the
---------
holders of any shares of any series of Preferred Stock ranking prior and
superior to the shares of Series A Convertible Preferred Stock with respect to
dividends and distributions, the holders of shares of Series A Convertible
Preferred Stock, shall be entitled to receive dividends and distributions, when,
as and if declared by the Board of Directors out of funds legally available for
such purpose. If the Corporation declares a dividend or distribution on the
common stock, par value $.01 per share (the "Common Stock"), of the Corporation,
the holders of shares of Series A Convertible Preferred Stock shall be entitled
to receive for each share of Series A Convertible Preferred Stock a dividend or
distribution in the amount of the dividend or distribution that would be
received by a holder of the Common Stock into which such share of Series A
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Convertible Preferred Stock is convertible on the record date for such dividend
or distribution. If the Corporation declares a dividend or distribution on any
other class or series of preferred stock, the holders of shares of Series A
Convertible Preferred Stock shall be entitled to receive a dividend or
distribution in an amount per share in proportion to the dividend or
distribution declared on a share of such other class or series based upon the
liquidation preference of a share of the Series A Convertible Preferred Stock
relative to that of a share of such other class or series, unless the holders of
at least 66-2/3% of the outstanding shares of Series A Convertible Preferred
Stock consent otherwise. In any such case, the Corporation shall declare a
dividend or distribution on the Series A Convertible Preferred Stock at the same
time that it declares a dividend or distribution on the Common Stock or such
other class or series of preferred stock and shall establish the same record
date for the dividend or distribution on the Series A Convertible Preferred
Stock as is established for such dividend or distribution on the Common Stock or
such other class or series of preferred stock. Each such dividend or
distribution will be payable to holders of record of the Series A Convertible
Preferred Stock as they appeared on the records of the Corporation at the close
of business on the record date declared for such dividend or distribution, as
shall be fixed by the Board of Directors. If the corporation declares or pays a
dividend or distribution on the Series A Convertible Preferred Stock as a result
of the declaration or payment of a dividend or distribution on the Common Stock
or any other class or series of preferred stock as described above, the holders
of the Series A Convertible Preferred Stock shall not be entitled to any
additional dividend or distribution solely because such first dividend or
distribution also required the declaration or payment of a dividend or
distribution on any other class or series of preferred stock. Any reference to
"distribution" contained in this Section 2 shall not be deemed to include any
distribution made in connection with any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary.
3. Liquidation Preference. (a) In the event of a (i) liquidation,
----------------------
dissolution or winding up of the Corporation, whether voluntary or involuntary
or (ii) a sale or other disposition of all or substantially all of the assets of
the Corporation (a "Liquidation Event"), after payment or provision for payment
of debts and other liabilities of the Corporation, the holders of the Series A
Convertible Preferred Stock then outstanding shall be entitled to be paid out of
the assets of the Corporation available for distribution to its shareholders,
whether such assets are capital, surplus, or earnings, before any payment or
declaration and setting apart for payment for any amount shall be made in
respect of the stock junior to the Series A Convertible Preferred Stock, an
amount equal to $130.00 per share plus an amount equal to all declared and
unpaid dividends thereon. If upon any Liquidation Event, whether voluntary or
involuntary, the assets to be distributed to the holders of the Series A
Convertible Preferred Stock shall be insufficient to permit the payment to such
shareholders of the full preferential amounts aforesaid, then all of the assets
of the Corporation to be distributed shall be so distributed ratably to the
holder of the Series A Convertible Preferred Stock on the basis of the number of
shares of Series A Convertible Preferred Stock held. A consolidation or merger
of the Corporation with or into another corporation shall not be considered a
liquidation, dissolution or winding up of the Corporation or a sale or other
disposition of all or substantially all of the assets of the Corporation. All
shares of Series A Convertible Preferred Stock shall rank as to payment upon the
occurrence of any of the events described in clauses (i) and (ii) above senior
to the Common Stock as provided herein and, unless the terms of such series
shall provide otherwise, senior to all other series of the Corporation's
preferred stock.
(b) After the payment or distribution to the holders of the Series A
Convertible Preferred Stock of the full preferential amounts aforesaid, the
holders of shares of the Common Stock and any other shares of participating
preferred stock then outstanding will be entitled to receive, pro rata, an
--- ----
amount per share equal to $13 plus accrued but unpaid dividends, if any, paid to
the holders of the Series A Convertible Preferred Stock. After the payment or
distribution pursuant to the immediately preceding sentence, the holders of
shares of the Series A Convertible Preferred Stock, the Common Stock and any
other shares of participating preferred stock then outstanding will share any
remaining assets of the Corporation on a pari passu, as converted basis.
---- -----
2
4. Conversion.
----------
(a) Right of Conversion. The shares of Series A Convertible Preferred
-------------------
Stock shall be convertible, in whole or in part, at the option of the holder
thereof and upon notice to the Corporation as set forth in paragraph (b) below,
into fully paid and nonassessable shares of Common Stock and such other
securities and property as hereinafter provided. The shares of Series A
Convertible Preferred Stock shall be convertible initially at the rate of
175.3771 shares of Common Stock for each full share of Series A Convertible
Preferred Stock and shall be subject to adjustment as provided herein. The
initial conversion price per share of Common Stock is $.5702 and shall be
subject to adjustment as provided herein. For purposes of this resolution, the
"conversion rate" applicable to a share of Series A Convertible Preferred Stock
shall be the number of shares of Common Stock and number or amount of any other
securities and property as hereinafter provided into which a share of Series A
Convertible Preferred Stock is then convertible and shall be determined by
dividing the then existing conversion prices into $100.00.
Subject to adjustment pursuant to the provisions of paragraph (c)
below, in the event that the conversion price in effect at the time of each
Interim Closing Date (as defined below) and the Final Closing Date (as defined
below) is greater than 85% of the average closing bid price of the Common Stock
for the thirty consecutive trading days immediately preceding (x) any interim
closing date of the issuance and sale of the Series A Convertible Preferred
Stock (each an "Interim Closing Date") or (y) the final closing date of the
issuance and sale of the Series A Convertible Preferred Stock (the "Final
Closing Date"), then the conversion price shall be adjusted to equal the lesser
of any such average closing bid price. If there is any change in the conversion
price as a result of the preceding sentence, then the conversion rate shall be
changed accordingly, and shall be determined by dividing the new conversion
price into $100.00. The Corporation shall prepare a certificate signed by the
principal financial officer of the Corporation setting forth the conversion rate
as the Final Closing Date, showing in reasonable detail the facts upon which
such conversion rate is based, and such certificate shall forthwith be filed
with the transfer agent of the Series A Convertible Preferred Stock.
Notwithstanding the provisions of subparagraph (vi) of paragraph (c) below, a
notice stating that the conversion rate has been adjusted pursuant to this
paragraph, or that no adjustment is necessary, and setting forth the conversion
rate in effect as of the Final Closing Date shall be mailed as promptly as
practicable after the Final Closing Date by the Corporation to all record
holders of the Series A Convertible Preferred Stock at their last addresses as
they shall appear in the stock transfer books of the Corporation.
Subject to adjustment pursuant to the provisions of paragraph (c)
below, the conversion price in effect immediately prior to the date that is 12
months after the Final Closing Date of the issuance and sale of the Series A
Convertible Preferred Stock (the "Reset Date") shall be adjusted and reset
effective as of the Reset Date if the average closing bid price of the Common
Stock for the 30 consecutive trading days immediately preceding the Reset Date
(the "12-Month Trading Price") is less than 130% of the then applicable
conversion price (a "Reset Event"). Upon the occurrence of a Reset Event, the
conversion price shall be reduced to be equal to the greater of (A) the 12-Month
Trading Price divided by 1.3, (B) 50% of the then applicable conversion price
and (C) $.375 (subject to a proportional adjustment in the event of an
adjustment to the conversion price pursuant to paragraph 4(c) below). If there
is any change in the conversion price as a result of the preceding sentence,
then the conversion rate shall be changed accordingly, and shall be determined
by dividing the new conversion price into $100.00. The Corporation shall
prepare a certificate signed by the principal financial officer of the
Corporation setting forth the conversion rate as of the Reset Date, showing in
reasonable detail the facts upon which such conversion rate is based, and such
certificate shall forthwith be filed with the transfer agent of the Series A
Convertible Preferred Stock. Notwithstanding the provisions of subparagraph
(vi) of paragraph (c) below, a notice stating that the conversion rate has been
adjusted pursuant to this paragraph, or that no adjustment is necessary, and
setting forth the conversion rate in effect as of the Reset Date shall be mailed
3
as promptly as practicable after the Reset Date by the Corporation to all record
holders of the Series A Convertible Preferred Stock at their last addresses as
they shall appear in the stock transfer books of the Corporation.
The "closing bid price" for each trading day shall be the reported
closing bid price on the NASDAQ Small-Cap Market or the NASDAQ National Market
System (collectively referred to as, "NASDAQ") or, if the Common Stock is not
quoted on NASDAQ, on the principal national securities exchange on which the
Common Stock is listed or admitted to trading (based on the aggregate dollar
value of all securities listed or admitted to trading) or, if not listed or
admitted to trading on any national securities exchange or quoted on NASDAQ, the
closing bid price in the over-the-counter market as furnished by an NASD member
firm selected from time to time by the Corporation for that purpose, or, if such
prices are not available, the fair market value set by, or in a manner
established by, the Board of Directors of the Corporation in good faith.
"Trading Day" shall mean a day on which the national securities exchange or
NASDAQ used to determine the closing bid price is open for the transaction of
business or the reporting of trades or, if the closing bid price is not so
determined, a day on which NASDAQ is open for the transaction of business.
(b) Conversion Procedures. Any holder of shares of Series A
---------------------
Convertible Preferred Stock desiring to convert such shares into Common Stock
shall surrender the certificate or certificates evidencing such shares of Series
A Convertible Preferred Stock at the office of the transfer agent for the Series
A Convertible Preferred Stock, which certificate or certificates, if the
Corporation shall so require, shall be duly endorsed to the Corporation or in
blank, or accompanied by proper instruments of transfer to the Corporation or in
blank, accompanied by irrevocable written notice to the Corporation that the
holder elects so to convert such shares of Series A Convertible Preferred Stock
and specifying the name or names (with address(es)) in which a certificate or
certificates evidencing shares of Common Stock are to be issued. The
Corporation need not deem a notice of conversion to be received unless the
holder complies with all the provisions hereof. The Corporation will instruct
the transfer agent (which may be the Corporation) to make a notation of the date
that a notice of conversion is received, which date shall be deemed to be the
date of receipt for purposes hereof.
The Corporation shall, as soon as practicable after such deposit of
certificates evidencing shares of Series A Convertible Preferred Stock
accompanied by the written notice and compliance with any other conditions
herein contained, deliver at such office of such transfer agent to the person
for whose account such shares of Series A Convertible Preferred Stock were so
surrendered, or to the nominee or nominees of such person, certificates
evidencing the number of full shares of Common Stock to which such person shall
be entitled as aforesaid, together with a cash adjustment of any fraction of a
share as hereinafter provided. Subject to the following provisions of this
paragraph, such conversion shall be deemed to have been made as of the date of
such surrender of the shares of Series A Convertible Preferred Stock to be
converted, and the person or persons entitled to receive the Common Stock
deliverable upon conversion of such Series A Convertible Preferred Stock shall
be treated for all purposes as the record holder or holders of such Common Stock
on such date; provided, however, that the Corporation shall not be required to
convert any shares of Series A Convertible Preferred Stock while the stock
transfer books of the Corporation are closed for any purpose, but the surrender
of Series A Convertible Preferred Stock for conversion during any period while
such books are so closed shall become effective for conversion immediately upon
the reopening of such books as if the surrender had been made on the date of
such reopening, and the conversion shall be at the conversion rate in effect on
such date. No adjustments in respect of any dividends on shares surrendered for
conversion or any dividend on the Common Stock issued upon conversion shall be
made upon the conversion of any shares of Series A Convertible Preferred Stock.
4
All notices of conversion shall be irrevocable; provided, however,
that if the Corporation has sent notice of an event pursuant to Section 4(g)
hereof, a holder of Series A Convertible Preferred Stock may, at its election,
provide in its notice of conversion that the conversion of its shares of Series
A Convertible Preferred Stock shall be contingent upon the occurrence of the
record date or effectiveness of such event (as specified by such holder),
provided that such notice of conversion is received by the Corporation prior to
such record date or effective date, as the case may be.
(c) Certain Adjustments of Conversion Rate. In addition to
--------------------------------------
adjustment pursuant to paragraph (a) above, the conversion rate (and the
corresponding conversion price) shall be subject to adjustment from time to time
as follows:
(i) In case the Corporation shall (A) pay a dividend in Common
Stock or make a distribution in Common Stock, (B) subdivide its outstanding
Common Stock, (C) combine its outstanding Common Stock into a smaller
number of shares of Common Stock or (D) issue by reclassification of its
Common Stock other securities of the Corporation, then in each such case
the conversion rate in effect immediately prior thereto shall be adjusted
so that the holder of any shares of Series A Convertible Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the kind
and number of shares of Common Stock or other securities of the Corporation
which such holder would have owned or would have been entitled to receive
immediately after the happening of any of the events described above had
such shares of Series A Convertible Preferred Stock been converted
immediately prior to the happening of such event or any record date with
respect thereto. Any adjustments made pursuant to this subparagraph (i)
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(ii) In case the Corporation shall issue or sell Common Stock or
rights, options, warrants or other securities convertible into Common
Stock, excluding those rights, options, warrants or other securities
convertible into Common Stock already outstanding and disclosed in the
Offering Memorandum, at a price per share which is lower than both (A) the
then effective conversion price and (B) the closing bid price (as defined
in Section 4) for the trading day immediately prior to such record date
(the "Current Market Price"), then the conversion rate shall be determined
by multiplying the conversion rate theretofore in effect by a fraction, of
which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such shares, rights,
options, warrants or convertible securities plus the number of additional
shares of Common Stock offered for subscription or purchase, and of which
the denominator shall be the number of shares of Common Stock outstanding
immediately prior to the issuance of such rights, options, warrants or
convertible securities plus the number of shares which the aggregate
offering price of the total number of shares offered would purchase at the
then effective conversion price. Such adjustment shall be made whenever
such rights, options, warrants, or convertible securities are issued, and
shall become effective immediately and retroactive to the record date for
the determination of stockholders entitled to receive such rights, options,
warrants or convertible securities.
(iii) In case the Corporation shall distribute to all or
substantially all holders of its Common Stock evidences of its indebtedness
or assets (excluding cash dividends or distributions out of earnings) or
rights, options, warrants or convertible securities containing the right to
subscribe for or purchase Common Stock (excluding those referred to in
subparagraph (ii) above), then in each case the conversion rate shall be
determined by multiplying the conversion rate theretofore in effect by a
fraction, of which the numerator shall be the then fair value as determined
in good faith by the Corporation's Board of Directors on the date of such
distribution, and of which the denominator shall be such fair value on such
date minus the then fair value (as
5
so determined) of the portion of the assets or evidences of indebtedness so
distributed or of such subscription rights, options, warrants or
convertible securities applicable to one share. Such adjustment shall be
made whenever any such distribution is made and shall become effective on
the date of distribution retroactive to the record date for the
determination of stockholders entitled to receive such distribution.
(iv) Upon the expiration of any rights, options, warrants or
conversion privileges, if such shall not have been exercised, the
conversion rate shall, upon such expiration, be readjusted and shall
thereafter be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case may be) on
the basis of (A) the fact that Common Stock, if any, actually issued or
sold upon the exercise of such rights, options, warrants or conversion
privileges, and (B) the fact that such shares of Common Stock, if any, were
issued or sold for the consideration actually received by the Corporation
upon such exercise plus the consideration, if any, actually received by the
Corporation for the issuance, sale or grant of all such rights, options,
warrants or conversion privileges whether or not exercised.
(v) No adjustment in the conversion rate shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such rate; provided, however, that the Corporation may make any such
adjustment at its election; and provided, further, that any adjustments
which by reason of this subparagraph (v) are not required to be made shall
be carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 4 shall be made to the nearest cent or to
the nearest one-hundredth of a share, as the case may be.
(vi) Whenever the conversion rate is adjusted as provided in any
provision of this Section 4:
(A) the Corporation shall compute (or may retain a firm of
independent public accountants of recognized national standing (which may
be any such firm regularly employed by the Corporation) to compute) the
adjusted conversion rate in accordance with this Section 4 and shall
prepare a certificate signed by the principal financial officer of the
Corporation (or cause any such independent public accountants to execute a
certificate) setting forth the adjusted conversion rate and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the transfer agent of the Series
A Convertible Preferred Stock; and
(B) a notice stating that the conversion rate has been
adjusted and setting forth the adjusted conversion rate shall forthwith be
required, and as soon as practicable after it is required, such notice
shall be mailed by the Corporation to all record holders of Series A
Convertible Preferred Stock at their last addresses as they shall appear in
the stock transfer books of the Corporation.
(vii) In the event that at any time, as a result of any adjustment
made pursuant to this Section 4, the holder of any shares of Series A
Convertible Preferred Stock thereafter surrendered for conversion shall
become entitled to receive any shares of the Corporation other than shares
of Common Stock or to receive any other securities, the number of such
other shares or securities so receivable upon conversion of any share of
Series A Convertible Preferred Stock shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions contained in this Section 4 with respect to the Common
Stock.
(d) No Fractional Shares. No fractional shares or scrip
--------------------
representing fractional shares of Common Stock shall be issued upon conversion
of Series A Convertible Preferred Stock. If more than
6
one certificate evidencing shares of Series A Convertible Preferred Stock shall
be surrendered for conversion at one time by the same holder, the number of full
shares issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of Series A Convertible Preferred Stock so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any shares of Series A Convertible
Preferred Stock, the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to the same fraction of the market price
per share of Common Stock (which shall be the closing price as defined in
Section 5) at the close of business on the day of conversion.
(e) Consolidation, Merger, Etc. If the Corporation shall enter into
---------------------------
any consolidation, merger, combination or other transaction in which shares of
Common Stock constituting in excess of 50% of the voting power of the
Corporation are exchanged for or changed into other stock or securities, cash
and/or any other property (a "Merger Transaction"), then in any such case the
shares of Series A Convertible Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to (i) the
conversion rate in effect at such time multiplied by (ii) the aggregate fair
market value, as determined in good faith by the Board of Directors of the
Corporation, 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 (the "Per Share Merger Consideration"); provided, however,
-------- -------
that if any stock of securities received in the Merger Transaction are traded on
a securities exchange or quotation system, the fair market value of such stock
or securities shall be the closing sales price of such stock or securities as
reported by the principal exchange or quotation system for such stock or
securities the business day immediately preceding the execution of the merger
agreement or other transaction agreement for such Merger Transaction, and if no
such trading market exists for such stock or securities, the aggregate fair
market value shall be as determined in good faith by the Board of Directors of
the Corporation; provided, further, however, that if any such Merger Transaction
-------- ------- -------
is effected on or before the Reset Date, and if the Per Share Merger
Consideration (assuming conversion of all outstanding convertible stock,
including the Series A Convertible Preferred Stock, at the conversion rate for
such stock in effect at the time of the execution and delivery of the merger
agreement relating to such Merger Transaction) is less than 130% of the then
applicable conversion price relating to the Series A Convertible Preferred
Stock, then the conversion price will be reduced to equal the greater of (x) the
Per Share Merger Consideration divided by 1.3, (y) 50% of the then applicable
conversion price and (x) $.375 (subject to a proportional adjustment in the
event of an adjustment to the conversion price pursuant to paragraph 4(c)
above).
(f) Reservation of Shares, Transfer Taxes, Etc. The Corporation shall
--------------------------------------------
at all times reserve and keep available, out of its authorized and unissued
stock, solely for the purpose of effecting the conversion of the Series A
Convertible Preferred Stock, such number of shares of its Common Stock free of
preemptive rights as shall from time to time be sufficient to effect the
conversion of all shares of Series A Convertible Preferred Stock from time to
time outstanding. The Corporation shall use its best efforts from time to
time, in accordance with the laws of the State of Delaware, to increase the
authorized number of shares of Common Stock if at any time the number of shares
of Common Stock not outstanding shall not be sufficient to permit the conversion
of all the then-outstanding shares of Series A Convertible Preferred Stock.
The Corporation shall pay any and all issue or other taxes that may be
payable in respect of any issue or delivery of shares of Common Stock on
conversion of the Series A 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 issue or delivery of Common Stock (or other securities
or assets) in a name other than that in which the shares of Series A
Convertible Preferred Stock so converted were registered, and no such issue or
delivery shall be made unless and until the person requesting such issue
7
has paid to the Corporation the amount of such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
Notwithstanding anything to the contrary herein, before taking any
action that would cause an adjustment reducing the conversion rate or before any
such adjustment is made as a result of a Reset Event, in either event, such that
the effective conversion price (for all purposes an amount equal to $100.00
divided by the conversion rate as in effect at such time) would be below the
then par value of the Common Stock, the Corporation shall take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and nonassessable shares of
Common Stock at the conversion rate as so adjusted.
(g) Prior Notice of Certain Events. In case:
-------------------------------
(i) the Corporation shall declare any dividend (or any other
distribution) on its Common Stock; or
(ii) the Corporation shall authorize the granting to the holders of
Common Stock of rights or warrants to subscribe for or purchase any shares
of stock of any class or of any other rights or warrants; or
(iii) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change in
par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Corporation is a
party and for which approval of any stockholders of the Corporation shall
be required, or of the sale or transfer of all or substantially all of the
assets of the Corporation or of any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
then the Corporation shall cause to be filed with the transfer agent for the
Series A Convertible Preferred Stock, and shall cause to be mailed to the
holders of record of the Series A Convertible Preferred Stock, at their last
addresses as they shall appear upon the stock transfer books of the Corporation,
at least 10 days prior to the applicable record date hereinafter specified, a
notice stating (x) the date on which a record (if any) is to be taken for the
purpose of such dividend, distribution or granting of rights or warrants or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or warrants are to
be determined and a description of the cash, securities or other property to be
received by such holders upon such dividend, distribution or granting of rights
or warrants or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, share exchange, dissolution, liquidation or winding up
is expected to become effective, the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such exchange,
dissolution, liquidation or winding up and the consideration, including
securities or other property, to be received by such holders upon such exchange;
provided, however, that no failure to mail such notice or any defect therein or
in the mailing thereof shall affect the validity of the corporate action
required to be specified in such notice.
(h) Other Changes in Conversion Rate. The Corporation from time to
---------------------------------
time may increase the conversion rate by any amount for any period of time if
the period is at least 20 days and if the increase is irrevocable during the
period. Whenever the conversion rate is so increased, the Corporation shall
mail to holders of record of the Series A Convertible Preferred Stock a notice
of the
8
increase at least 10 days before the date the increased conversion rate takes
effect, and such notice shall state the increased conversion rate and the period
it will be in effect.
The Corporation may make such increases in the conversion rate, in
addition to those required or allowed by this Section 4, as shall be determined
by it, as evidenced by a resolution of the Board of Directors, to be advisable
in order to avoid or diminish any income tax to holders of Common Stock
resulting from any dividend or distribution of stock or issuance or rights or
warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes.
(i) Ambiguities/Errors. The Board of Directors of the Corporation
-------------------
shall have the power to resolve any ambiguity or correct any error in the
provisions relating to the convertibility of the Series A Convertible Preferred
Stock, and its actions in so doing shall be final and conclusive.
5. Mandatory Conversion at Option of Corporation. At any time on or
---------------------------------------------
after the Reset Date, the Corporation, at its option, may cause the Series A
Convertible Preferred Stock to be converted in whole, or in part, on a pro rata
--- ----
basis, into fully paid and nonassessable shares of Common Stock and such other
securities and property as herein provided if the closing price of the Common
Stock shall have exceeded 150% of the then applicable conversion price for at
least 20 trading days in any 30 consecutive trading day period. Any shares of
Series A Convertible Preferred Stock so converted shall be treated as having
been surrendered by the holder thereof for conversion pursuant to Section 4 on
the date of such mandatory conversion (unless previously converted at the option
of the holder).
Not more than 60 nor less than 10 days prior to the date of any such
mandatory conversion, notice by first class mail, postage prepaid, shall be
given to the holders of record of the Series A Convertible Preferred Stock to be
converted, addressed to such holders at their last addresses as shown on the
stock transfer books of the Corporation. Each such notice shall specify the
date fixed for conversion, the place or places for surrender of shares of Series
A Convertible Preferred Stock, and the then effective conversion rate pursuant
to Section 4.
The "closing price" for each trading day shall be the reported last
sales price regular way or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
either case on the NASDAQ Small-Cap Market or the NASDAQ National Market System
(collectively referred to as, "NASDAQ") or, if the Common Stock is not quoted
on NASDAQ, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading (based on the aggregate dollar value of
all securities listed or admitted to trading) or, if not listed or admitted to
trading on any national securities exchange or quoted on NASDAQ, the average of
the closing bid and asked prices in the over-the-counter market as furnished by
any NASD member firm selected from time to time by the Corporation for that
purpose, or, if such prices are not available, the fair market value set by, or
in a manner established by, the Board of Directors of the Corporation in good
faith. "Trading day" shall have the meaning given in Section 4 thereof.
Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given by the Corporation on the date deposited in the
mail, whether or not the holder of the Series A Convertible Preferred Stock
received such notice; and failure properly to give such notice by mail, or any
defect in such notice, to the holders of the shares to be converted shall not
affect the validity of the proceedings for the conversion of any other shares of
Series A Convertible Preferred Stock. On or after the date fixed for conversion
as stated in such notice, each holder of shares called to be converted shall
surrender the certificate evidencing such shares to the Corporation at the place
designated in such notice for conversion. Notwithstanding that the certificates
evidencing any shares properly called for conversion shall not have been
surrendered, the shares shall no longer be deemed outstanding and all
9
rights whatsoever with respect to the shares so called for conversion (except
the right of the holders to convert such shares upon surrender of their
certificates therefor) shall terminate.
6. Voting Rights.
--------------
(a) General. Except as otherwise provided herein, in the Amended and
-------
Restated Certificate of Incorporation or by law, the holders of shares of Series
A Convertible Preferred Stock, the holders of shares of Common Stock and the
holders of any other class or series of shares entitled to vote with the Common
Stock shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation. In any such vote, each share of Series A
Convertible Preferred Stock shall entitle the holder thereof to cast the number
of votes equal to the number of votes which could be cast in such vote by a
holder of the Common Stock into which such share of Series A Convertible
Preferred Stock is convertible on the record date for such vote, or if no record
date has been established, on the date such vote is taken. Any shares of Series
A Convertible Preferred Stock held by the Corporation or any entity controlled
by the Corporation shall not have voting rights hereunder and shall not be
counted in determining the presence of a quorum.
(b) Class Voting Rights. In addition to any vote specified in
-------------------
paragraph (a) of this Section 6, so long as 50% of the shares of Series A
Convertible Preferred Stock (including those shares of Series A Convertible
Preferred Stock issued or issuable upon the exercise of the placement agent
warrants issued in connection with the offer and sale of the Series A
Convertible Preferred Stock) shall be outstanding, the Corporation shall not,
without the affirmative vote or consent of the holders of at least 66-2/3% of
all outstanding Series A Convertible Preferred Stock voting separately as a
class, (i) amend, alter or repeal any provision of the Amended and Restated
Certificate of Incorporation, as amended, or the Bylaws of the Corporation so
as adversely to affect the relative rights, preferences, qualifications,
limitations or restrictions of the Series A Convertible Preferred Stock, (ii)
declare any dividend or distribution on the Common Stock or any other class or
series of preferred stock or authorize the repurchase of any securities of the
Corporation or (iii) authorize or issue, or increase the authorized amount of,
any additional class or series of stock, or any security convertible into stock
of such class or series, (A) ranking prior to, or on a parity with, the Series A
Convertible Preferred Stock upon liquidation, dissolution or winding up of the
Corporation or a sale of all or substantially all of the assets of the
Corporation or (B) providing for the payment of any dividends or distributions.
A class vote on the part of the Series A Convertible Preferred Stock shall,
without limitation, specifically not be deemed to be required (except as
otherwise required by law or resolution of the Corporation's Board of Directors)
in connection with: (a) the authorization, issuance or increase in the
authorized amount of Common Stock, or of any shares of any other class or series
of stock ranking junior to the Series A Convertible Preferred Stock in respect
of distributions upon liquidation, dissolution or winding up of the Corporation;
(b) the authorization, issuance or increase in the amount of the Series A
Convertible Preferred Stock or any bonds, mortgages, debentures or other
obligations of the Corporation (other than bonds, mortgages, debentures or other
obligations convertible into or exchangeable for or having option rights to
purchase any shares of stock of the Corporation the authorization issuance or
increase in amount of which would require the consent of the holders of the
Series A Preferred Stock); or (c) any consolidation or merger of the Corporation
with or into another corporation, a sale or transfer of all or part of the
Corporation's assets for cash, securities or other property, or a compulsory
share exchange.
7. Outstanding Shares. For purposes of this Certificate of
------------------
Designations, all shares of Series A Convertible Preferred Stock shall be deemed
outstanding except (i) from the date, or the deemed date, or surrender of
certificates evidencing shares of Series A Convertible Preferred Stock, all
shares of Series A Convertible Preferred Stock converted into Common Stock, (ii)
from the date of registration of transfer, all shares of Series A Convertible
Preferred Stock held of record by the Corporation or any subsidiary of the
Corporation and (iii) any and all shares of Series A Convertible
10
Preferred Stock held in escrow prior to delivery of such stock by the
Corporation to the initial beneficial owners thereof.
8. Status of Acquired Shares. Shares of Series A Convertible
-------------------------
Preferred Stock received upon conversion pursuant to Section 4 or Section 5 or
otherwise acquired by the Corporation will be restored to the status of
authorized but unissued shares of Preferred Stock, without designation as to
class, and may thereafter be issued, but not as shares of Series A Convertible
Preferred Stock.
9. Preemptive Rights. The Series A Convertible Preferred Stock is
-----------------
not entitled to any preemptive or subscription rights in respect to any
securities of the Corporation.
10. Severability of Provisions. Whenever possible, each provision
--------------------------
hereof shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and valid under
applicable law.
11
IN WITNESS WHEREOF, this Certificate of Designation was executed on
behalf of the Corporation by its President and attested by its Secretary on
March 14, 2001.
By /s/ S. David Hillson
-------------------------------
S. David Hillson, President
Attest:
By /s/ Joseph P. Hernon
-------------------------------
Joseph P. Hernon, Secretary
12
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES D PREFERRED STOCK
of
BOSTON LIFE SCIENCES, INC.
Pursuant to Section 151 of the
General Corporation Law of the
State of Delaware
We, S. David Hillson, President, and Joseph P. Hernon, Secretary, of
Boston Life Sciences, Inc. (the "Corporation"), organized and existing under the
General Corporation Law of the State of Delaware, in accordance with the
provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Amended and Restated Certificate of Incorporation of the Corporation, as
amended, the Board of Directors on March 1, 2001, adopted the following
resolution creating a series of 500,000 shares of Preferred Stock designated as
Series D Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its Amended
and Restated Certificate of Incorporation, as amended, a series of Preferred
Stock of the Corporation be and it hereby is created, and that the designation
and amount thereof and the voting powers, preferences, and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof, are as follows:
Section 1. Designation and Amount. The shares of such series shall be
----------------------
designated as "Series D Preferred Stock" and the number of shares constituting
such series shall be 500,000. Such number of shares may be increased or
decreased by resolution of Board of Directors, provided that (i) no increase
shall increase the number of shares of Series D Preferred Stock to a number
above the total number of authorized shares of Preferred Stock and (ii) no
decrease shall reduce the number of shares of Series D Preferred Stock to a
number less than the number of shares of Series D Preferred Stock then
outstanding plus the number of shares of Series D Preferred Stock reserved for
issuance upon the exercise of outstanding options, rights or warrants, or the
conversion of any outstanding securities, issued by the Corporation exercisable
for or convertible into Series D Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series D Preferred Stock with respect to dividends, the holders
of shares of Series D Preferred Stock, in
preference to the shares of Common Stock, par value $.01 per share, of the
Corporation (the "Common Stock"), and any other stock of the Corporation ranking
junior to the Series D Preferred Stock with respect to dividends, shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on
the 15th day of March, June, September and December in each year (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 Series D Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) 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 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 Series D Preferred Stock. In the event the Corporation shall at any
time after September 26, 1991 (the "Rights Declaration Date") (i) declare or pay
any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding Common Stock into
a smaller number of shares, then in each such case the amount to which holders
of shares of Series D Preferred Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence 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 shares of Common Stock that were outstanding
immediately prior to such event; provided, however, that no such adjustment
-------- -------
shall be made with respect to the one-for-ten reverse stock split of the Common
Stock that was approved by the stockholders of the Corporation on June 6, 1997.
(B) The Corporation shall declare a dividend or distribution on the
Series D Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series D Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series D Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series D Preferred Stock, 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 shares of Series D Preferred Stock 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 shares of Series D Preferred Stock in
an amount less than the total amount of such 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. The Board of Directors may fix a record date for the determination
of holders of shares of Series D Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be no more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. In addition to any other voting rights
-------------
required by law, the holders of shares of Series D Preferred Stock shall have
the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series D Preferred Stock shall entitle the holder thereof to 100
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 Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the number of
votes per share to which holders of shares of Series D Preferred Stock 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; provided, however, that no such adjustment shall be made with
-------- -------
respect to the one-for-ten reverse stock split of the Common Stock that was
approved by the stockholders of the Corporation on June 6, 1997.
(B) Except as otherwise provided herein, in any other Certificate of
Designation, Preferences and Rights establishing a series of Preferred Stock or
any similar stock, or by law, the holders of shares of Series D Preferred Stock
and the holders of shares of Common Stock shall vote together as one class on
all matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, holders of Series D Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series D Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series D Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on or make any other
distributions on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series D Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series D Preferred
Stock, except dividends paid ratably on the Series D Preferred Stock and all
such parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series D Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series D Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series D Preferred Stock, or any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series D Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series D Preferred Stock
-----------------
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 shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein, in the Certificate
of Incorporation, or in any other Certificate of Designation, Preferences and
Rights establishing a series of Preferred Stock or any similar stock, or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
--------------------------------------
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series D
Preferred Stock unless, prior thereto, the holders of shares of Series D
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series D
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series D
Preferred Stock, except distributions made ratably on the Series D Preferred
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time after
the Rights Declaration Date declare or pay any dividend on Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser
number of shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series D Preferred Stock were entitled immediately
prior to such event under the proviso in Clause (1) of the preceding sentence
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; provided, however, that no
-------- -------
such adjustment shall be made with respect to the one-for-ten reverse stock
split of the Common Stock that was approved by the stockholders of the
Corporation on June 6, 1997.
Section 7. Consolidation, Merger, etc. In cases 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 shares of
Series D Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 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 Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding 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 D Preferred Stock 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; provided, however, that no such adjustment shall be made with respect to
-------- -------
the one-for-ten reverse stock split of the Common Stock that was approved by the
stockholders of the Corporation on June 6, 1997.
Section 8. No Redemption. The shares of Series D Preferred Stock
-------------
shall not be redeemable.
Section 9. Rank. The Series D Preferred Stock shall rank junior with
----
respect to payment of dividends and on liquidation to all other series of the
Corporation's Preferred Stock except to the extent that any such other series
specifically provides that it shall rank on a parity with or junior to the
Series D Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
---------
Corporation and these resolutions shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series D Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of a majority of the outstanding shares of Series D
Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series D Preferred Stock 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 D Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designation was executed on behalf
of the Corporation by its President and attested by its Secretary on March 14,
2001.
By /s/ S. David Hillson
-------------------------------
S. David Hillson, President
Attest:
By /s/ Joseph P. Hernon
-------------------------------
Joseph P. Hernon, Secretary