CERTIFICATE OF DETERMINATION OF PREFERENCES
OF PREFERRED SHARES OF
ACCESSPOINT CORPORATION,
a Nevada Corporation
The undersigned, James W. Bentley and Tom M. Djokovich, certify that:
1. They are the duly elected or duly acting President and Secretary,
respectively, of Accesspoint Corporation, a Nevada corporation
("Corporation").
2. Pursuant to authority given by the Corporation's Articles of
Incorporation, the Board of Directors of the Corporation has duly
adopted the following recitals and resolutions:
WHEREAS, the Articles of Incorporation of this Corporation provide for
a class of shares known as Preferred Stock, issuable from time to time
in one or more series; and
WHEREAS, the Board of Directors of this Corporation is authorized to
determine or alter the rights, preferences, privileges, and
restrictions granted to or imposed upon any wholly unissued series of
Preferred Stock, to fix the number of shares constituting any such
series, and to determinate the designation thereof, or any of them;
WHEREAS, at the time of adoption of this resolution one or more classes
or series of outstanding shares, singly or in the aggregate, are
entitled to full voting rights; the common shares of this Corporation
are entitled to full voting rights;
WHEREAS, at the time of adoption of this resolution, one or more
classes or series of outstanding shares, singly or in the aggregate,
are entitled to unlimited dividend and liquidation rights;
WHEREAS, this Corporation has not issued any shares of Preferred Stock
and the Board of Directors of this Corporation desires, pursuant to its
authority, to determine and fix the rights, preferences, privileges,
and restrictions relating to the initial series of Preferred Stock and
the number of shares constituting and the designation of the series;
NOW, THEREFORE, BE IT RESOLVED, the Board of Directors hereby fixes and
determines the designation of, the number of shares constituting, and
the rights, preferences, privileges, and restrictions relating to, the
initial series of Preferred Stock as follows:
(a) DESIGNATION. The initial series of Preferred Stock shall be
designated "Preferred shares, Series A."
(b) NUMBER.The number of shares constituting the Preferred shares,
Series A, shall be 2,500,000 shares.
(c) VOTING. Preferred Shares, Series A, shall be non-voting shares
as a class and the holders of the outstanding Preferred Shares, Series
A, shall not vote on any of the Corporation's matters.
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(d) RESTRICTIONS. The holders of the outstanding Preferred Shares,
Series A, may not dispose of any Preferred Shares, Series A, whether by
sale, exchange, assignment, transfer, gift, devise, bequest, mortgage,
pledge, encumbrance or otherwise, except in accordance with the terms
and conditions of this Section (d), and holders may not take or omit
any action which will impair the absolute and unrestricted right,
power, authority and capacity of the Corporation to enforce the
restrictions set forth in this Certificate of Determination.
Any purported transfer of any Preferred Shares, Series A, by
any holder of outstanding Preferred Shares, Series A, that violates any
provision of this Section (d) shall be wholly void and ineffectual and
shall give to the Corporation or its designee the right to purchase
from the holder all but not less than all of the Preferred Shares,
Series A, then owned by holder for a period of 90 days from the date
the Corporation first learns of the purported transfer at the Agreement
Price and on the Agreement Terms (as those terms are defined in
subsections (7) and (8), respectively, of this Section (d)). If the
Shares are not purchased by the Corporation or its designee, the
purported transfer thereof shall remain void and ineffectual and they
shall continue to be subject to this Certificate of Determination.
The Corporation shall not cause or permit the transfer of any
Preferred Shares, Series A, to be made on its books except in
accordance with the terms hereof.
(1) Permitted Transfers.
(i) The holder of any Preferred Shares, Series A, may sell,
assign or transfer any Preferred Shares, Series A, held by
such holder but only by complying with the provisions of
subsection (4) of this Section (d).
(ii) The holder of any Preferred Shares, Series A, may sell,
assign or transfer any Preferred Shares, Series A, held by
such holder without complying with the provisions of
subsection (4) by obtaining the prior written consent of the
Corporation's shareholders owning 50% of the then issued and
outstanding shares of the Corporation's common voting stock
(determined on a fully diluted basis) or a majority of the
members of the Board of Directors of the Corporation, provided
that the transferee agrees in writing to be bound by the
provisions of any separate shareholder agreement between the
Corporation and the transferor and the transfer is made in
accordance with any other restrictions or conditions contained
in the written consent and in accordance with applicable
federal and state securities laws.
(iii) Upon the death of any holder of Preferred Shares, Series
A, the Preferred Shares, Series A, held by the deceased holder
may be transferred to the personal representative of the
deceased holder's estate without complying with the provisions
of subsection (4). Shares so transferred shall be subject to
the other
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provisions of this Section (d), including in particular,
and without limitation, subsection (6).
(2) No Pledge. Unless a majority of the members of the Board of
Directors consent, Preferred Shares, Series A, may not be pledged,
mortgaged or otherwise encumbered to secure indebtedness for money
borrowed or any other obligation for which the holder thereof is
primarily or secondarily liable.
(3) Stock Certificate Legend. Each stock certificate representing
Preferred Shares, Series A, shall have conspicuously written, printed,
typed or stamped upon the face thereof, or upon the reverse thereof
with a conspicuous reference on the face thereof, one or both of the
following legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE NON-VOTING SHARES AND
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN ANY
MANNER EXCEPT IN ACCORDANCE WITH AND SUBJECT TO THE TERMS OF A
CERTIFICATE OF DETERMINATION PERTAINING THERETO, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. UNLESS A MAJORITY OF THE
MEMBERS OF THE BOARD OF DIRECTORS CONSENT, SUCH CERTIFICATE OF
DETERMINATION PROHIBITS ANY PLEDGE, MORTGAGE OR OTHER ENCUMBRANCE OF
SUCH SHARES TO SECURE ANY OBLIGATION OF THE HOLDER HEREOF. EVERY
CREDITOR OF THE HOLDER HEREOF AND ANY PERSON ACQUIRING OR PURPORTING TO
ACQUIRE THIS CERTIFICATE OR THE SHARES HEREBY EVIDENCED OR ANY INTEREST
THEREIN IS HEREBY NOTIFIED OF THE EXISTENCE OF SUCH CERTIFICATE OF
DETERMINATION, AND ANY ACQUISITION OR PURPORTED ACQUISITION OF THIS
CERTIFICATE OR THE SHARES HEREBY EVIDENCED OR ANY INTEREST THEREIN
SHALL BE SUBJECT TO ALL RIGHTS AND OBLIGATIONS SET FORTH IN THE
CERTIFICATE OF DETERMINATION.
(4) Sales of Preferred Shares, Series A.
(i) Corporation's Right of First Refusal. In the event that
the holder of any Preferred Shares, Series A, shall desire to
sell, assign or transfer any Preferred Shares, Series A, to
any other person (the "Offered Shares") and shall be in
receipt of a bona fide offer to purchase the Offered Shares
("Offer"), the following procedure shall apply. The holder of
Preferred Shares, Series A, shall give to the Corporation
written notice containing the terms and conditions of the
Offer, including, but not limited to (a) the number of Offered
Shares; (b) the price per share for the Offered Shares; (c)
the method of payment; and (d) the name(s) of the proposed
purchaser(s).
(ii) An offer shall not be deemed bona fide unless the holder
of Preferred Shares, Series A, has informed the prospective
purchaser of the obligation under this Certificate of
Determination and the prospective purchaser has agreed to
become a party to any stock restriction agreements between the
Corporation and the holder of Preferred Shares, Series A, and
to be bound thereby. The
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Corporation shall be entitled to take such steps, as it
reasonably may deem necessary to determine the validity and
bona fide nature of the Offer.
(iii) Until 30 days after such notice is given, the
Corporation or its designee shall have the right to purchase
all of the Offered Shares at the price offered by the
prospective purchaser and specified in such notice. Such
purchase shall be on the Agreement Terms, as defined in
subsection (8).
(5) Failure of Corporation or its Designee to Purchase Offered
Shares. If all of the Offered Shares are not purchased by the
Corporation and/or its designee within the 30-day period granted for
such purchases, then any remaining Offered Shares may be sold, assigned
or transferred pursuant to the Offer; provided, that the Offered Shares
are so transferred within 30 days of the expiration of the 30-day
period to the person or persons named in, and under the terms and
conditions of, the bona fide Offer described in the notice to the
Corporation; and provided further, that such persons acknowledge to the
reasonable satisfaction of the Corporation that they shall then be
bound by the terms and conditions of this Certificate of Determination
and agree to be bound by the terms and conditions of any shareholder
agreement or similar restrictive agreement between the Corporation and
the transferor.
(6) Manner of Exercise. Any right to purchase hereunder shall be
exercised by giving written notice of election to the holder of
Preferred Shares, Series A, the holder's personal representative or any
other selling person, as the case may be, prior to the expiration of
such right to purchase.
(7) Agreement Price. The "Agreement Price" shall be the higher of
(a) the fair market value of the Preferred Shares, Series A, to be
purchased determined in good faith by the Board of Directors of the
Corporation and (b) the conversion price, if any, of the Preferred
Shares, Series A, to be purchased.
(8) Agreement Terms. "Agreement Terms" shall mean and include the
following:
(i) Delivery of Shares and Closing Date. At the closing, the
holder of Preferred Shares, Series A, the holder's personal
representative or such other selling person, as the case may
be, shall deliver certificates representing the Preferred
Shares, Series A, properly endorsed for transfer, and with the
necessary documentary and transfer tax stamps, if any,
affixed, to the purchaser of such Preferred Shares, Series A.
Payment of the purchase price therefor shall concurrently be
made to the holder, the holder's personal representative or
such other selling person, as provided in subsection (ii) of
this subsection (8). Such delivery and payment shall be made
at the principal office of the Corporation or at such other
place as the Board of Directors may determine.
(ii) Payment of Purchase Price. The purchase price may be paid
by the Corporation in cash or cash equivalent or shares of
common voting stock of the Corporation. The shares of common
voting stock of the Corporation shall be valued at the fair
market value on the day of closing as may be determined in
good faith by the Board of Directors. The Corporation shall
pay the purchase
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price to the holder of Preferred Shares, Series A, at the
closing.
(9) Right to Purchase Upon Certain Other Events. The Corporation
or its designee shall have the right to purchase all, but not less than
all, of the Preferred Shares, Series A, held by any holder thereof at
the Agreement Price and on the Agreement Terms for a period of 90 days
after any of the following events:
(i) an attempt by a creditor to levy upon or sell any of the
Preferred Shares, Series A;
(ii) the filing of a petition by the holder of Preferred
Shares, Series A, under the U.S. Bankruptcy Code or any
insolvency laws;
(iii) the filing of a petition against the holder of Preferred
Shares, Series A, under any insolvency or bankruptcy laws by
any creditor of the holder if such petition is not dismissed
within 30 days of filing;
(iv) the entry of a decree of divorce between the holder of
Preferred Shares, Series A, and the spouse of such holder; or
(v) if the holder of Preferred Shares, Series A, is an
employee or consultant of the Corporation or any of its
subsidiaries, the termination of the holder's services as an
employee or consultant..
The holder of Preferred Shares, Series A, shall provide the
Corporation with written notice of the occurrence of any such
event within 30 days of such event.
(10) Termination. The provisions of this Section (d)shall terminate
and all rights and obligations of the Corporation and of each holder of
Preferred Shares, Series A, set forth in this Section (d) shall cease
with regard to the Preferred Shares, Series, A, (except for those
similar or other rights and obligations which shall have theretofore
accrued pursuant to separate agreement) upon the occurrence of any of
the following events:
(i) cessation of the Corporation's business;
(ii) bankruptcy, receivership or dissolution of the
Corporation;
(iii) ownership of all of the issued and outstanding Preferred
Shares, Series A, by a single shareholder;
(iv) written consent or agreement of the shareholders of the
Corporation holding 50% of the then issued and outstanding
common voting shares of the Corporation (determined on a fully
diluted basis);
(v) consent or agreement of a majority of the members of the
Board of Directors of the Corporation; or
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(vi) registration of the Preferred Shares, Series A, as class
of equity securities of the Corporation pursuant to Section 12
of the Securities Exchange Act of 1934, as amended.
(11) Amendment. To the fullest extent allowed by applicable law,
this Section (d) may be modified or amended in whole or in part by a
written instrument signed by shareholders of the Corporation holding
50% of the outstanding shares of Common Stock (determined on a fully
diluted basis) or a majority of the members of the Board of Directors
of the Corporation.
(e) DIVIDENDS. The holders of the outstanding Preferred Shares,
Series A, shall be entitled to receive, when and as declared by the
Board of Directors of the Corporation, out of any assets at the time
legally available, dividends at the annual rate determined by the board
of directors in its sole and unreviewable discretion, and no more,
payable in such form and at such time as the Board of Directors may so
determine to holders of Preferred Shares, Series A, of record on a date
not more than 60 nor fewer than 10 days preceding each respective
payment date as specified by the Board of Directors or, if not so
specified, as provided by law. Dividends shall not accrue on any
Preferred Share, whether or not earned or declared. Dividends shall not
be accumulative, if declared, and not paid. The Preferred Shares,
Series A, shall be deemed noncumulative, nonparticipating. The right to
dividends on Preferred Shares, Series A, shall not be cumulative, and
no right shall accrue to holders of Preferred Shares, Series A, by
reason of the fact that dividends on those shares are not declared in
any prior year, nor shall any undeclared or unpaid dividend bear or
accrue interest.
(f) CONVERSION. Subject to the provisions of applicable law to any
applicable restrictions on the rights of a corporation to convert its
own securities, the Corporation, at the option of the Board of
Directors, may at any time or from time to time convert the whole or
any part of the outstanding Preferred Shares, Series A, to common
voting shares issued by this Corporation. The Board of Directors may,
subject to terms and conditions of this Certificate of Determination,
establish by agreement with the individual holders of Preferred Shares,
Series A, or any of them individually, from time to time, certain
redemption eligibility criteria, terms and conditions not otherwise
inconsistent with this Certificate of Determination. The Preferred
Shares, Series A, shall be converted into fully paid and nonassessable
common shares of the Corporation, at the rate of one common share for
each preferred share, subject to limited adjustment as set forth
herein. No adjustment shall be made with respect to dividends that may
be accrued and unpaid at the date of surrender for conversion. The
holders of the Preferred Shares, Series A, shall surrender the
certificate or certificates for those shares at the time and place so
directed by the Corporation. The Corporation may determine that the
Preferred Shares, Series A, shall be surrendered at any place where the
Corporation shall maintain a transfer agent for its common shares or
its preferred shares of any class or series.
At least ten (10) days previous notice by mail, postage
prepaid, shall be given to the holders of record of the Preferred
Shares, Series A, to be converted as of the date of mailing or as of a
record date lawfully fixed. Such notice shall be addressed to each such
shareholder at the address of that holder appearing on the books of the
Corporation or given by that holder to the Corporation for the purpose
of notice or if no such address
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appears or is so given, at the place where the principal office of the
Corporation is located. The notice shall state the date fixed for
conversion, the conversion ratio and shall call upon that holder to
surrender to the Corporation the date fixed and at the place designated
in the notice the holder's certificate or certificates representing the
shares to be converted if those shares are certificated. On or after
the date fixed for conversion and stated in that notice, each holder of
Preferred Share, Series A, called for conversion shall if those shares
are certificated, surrender the certificate evidencing the shares to
the Corporation at the place designated in the notice and shall
thereupon be entitled to receive common shares of the Corporation at
the conversion ratio. The certificate or certificates representing the
Preferred Shares, Series A, to be converted shall be surrendered duly
endorsed in blank or accompanied by proper instruments of transfer, at
the office of the Corporation or of any transfer agent for the
Preferred Shares. If less than all the shares represented by any such
surrendered certificate are converted, a new certificate shall be
issued representing the unconverted shares.
If the notice of conversion shall have been duly given then,
notwithstanding that the certificates evidencing any Preferred Shares,
Series A, so called for conversion shall not have been surrendered, all
rights with respect to the shares so called for conversion shall after
that date cease. Conversion shall be deemed to have been made on the
date fixed for the conversion by the Board of Directors whether or not
certificates representing Preferred Shares, Series A, shall have been
surrendered and the person or persons entitled to receive the common
shares issuable upon conversion shall be treated for all purposes as
the record holder or holders of the common shares on that date. The
Board of Directors may order any holders of outstanding certificates
for Preferred Shares, Series A, to surrender them for certificates
evidencing common shares. The order may provide that a holder of
certificates so to be exchanged is not entitled to vote or to receive
dividends or to exercise any other rights of a shareholder, if any,
until the holder has complied with the order, but the order shall be
operative only after notice and only until compliance.
The number of common shares into which Preferred Shares may be
converted shall be subject to limited adjustment from time to time in
certain cases as follows:
(1) If the Corporation shall subdivide or combine its outstanding
common shares into a greater or smaller number of shares, then in each
such case the number of common shares into which Preferred Shares may
be converted shall be increased or reduced in the same proportion;
(2) If there occurs any capital reorganization or any
reclassification of the capital stock of the Corporation, the
consolidation or merger of the Corporation with or into another
corporation, or the sale or conveyance of all or substantially all of
the assets of the Corporation to another corporation, each Preferred
Share, Series A, shall thereafter be convertible into the same kind and
amounts of securities (including shares of stock) or other assets, or
both, issuable or distributable to the holders of outstanding preferred
shares of the Corporation upon reorganization, reclassification,
consolidation, merger, sale, or conveyance; and in any such case,
appropriate adjustments (as determined by the Board of Directors) shall
be made applying the provisions herein set forth with respect to the
rights and interests thereafter of the holders of the Preferred Shares,
Series A, to the end that the provisions set forth (including
provisions with respect to changes in, and
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other adjustments of, the conversion rate) shall thereafter be
applicable, as nearly as reasonably may be, in relation to the
Preferred Shares, Series A.
(3) Immediately upon adjustment of the amount of common shares or
other securities deliverable upon the conversion of Preferred Shares,
Series A, the Corporation shall file, at its principal executive office
and with any transfer agent or agents for Preferred Shares and for
common shares, a statement, signed by the Chairman of the Board,
President, or one of the Vice Presidents of the Corporation, and by its
Chief Financial Officer or one of its Assistant Treasurers, stating the
adjusted amount of its commons shares or other securities deliverable
per Preferred Share, Series A, calculated to the nearest one
one-hundredth and setting forth in reasonable detail the method of
calculation and the facts requiring the adjustment and upon which the
calculation is based. Each adjustment shall remain in effect until a
subsequent adjustment hereunder is required.
The Corporation shall at all times reserve and keep available
out of its authorized but unissued common shares the full number of
common shares deliverable upon the conversion of all the then
outstanding Preferred Shares, Series A, and shall take all action and
obtain all permits or orders that may be necessary to enable the
Corporation lawfully to issue common shares upon the conversion of
Preferred Shares, Series A.
No fractions of common shares shall be issued upon conversion.
In lieu thereof nondividend bearing, nonvoting scrip (exchangeable for
full shares) shall be issued in (form bearer or registered), and
denominations, expiring after a reasonable time and containing such
other terms and provisions, as the Board of Directors of the
Corporation may from time to time determine prior to the issue thereof.
The Corporation may, however, at its option, in lieu of issuing scrip,
make equitable provision for the stock holders otherwise entitled to
receive scrip as the Board of Directors may determine, including
payment of cash, or sale or stock to the extent of that scrip and
distribution of the net proceeds or otherwise.
(g) REDEMPTION. Subject to the provisions of applicable law and
to any applicable restriction on the right of a corporation to redeem
its own shares, the Corporation, at the option of the Board of
Directors, may at any time or from time to time redeem the whole or any
part of the outstanding Preferred Shares, Series A. The Board of
Directors may, subject to terms and conditions of this Certificate of
Determination, establish by agreement with the individual holders of
Preferred Shares, Series A, or any of them individually, from time to
time, certain redemption eligibility criteria, terms and conditions not
otherwise inconsistent with this Certificate of Determination. Upon
redemption, the Corporation shall pay each share redeemed cash in the
amount of 10/100 Dollars ($0.10) per share plus an amount equal to all
dividends thereon declared but unpaid on the date of fixed for
redemption. The total amount payable per share is payable is called
"the Redemption Price" below. In case of the redemption of a part only
of the outstanding Preferred Shares, Series A, the Corporation shall
designate pro rata or by lot or other criteria the shares to be
redeemed.
At least ten (10) days previous notice by mail, postage
prepaid, shall be given to the holders of record of the Preferred
Shares, Series A, to be redeemed as of the date of mailing or as of a
record date lawfully fixed. Such notice shall be addressed to each such
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shareholder at the address of that holder appearing on the books of the
Corporation or given by that holder to the Corporation for the purpose
of notice, or if no such address appears or is so given, at the place
where the principal office of the Corporation is located. The notice
shall state the date fixed for redemption and the redemption price and
shall call upon that holder to surrender to the Corporation on the date
fixed and at the place designated in the notice the holder's
certificate or certificates representing the shares to be redeemed if
those shares or certificated. On or after the date fixed for redemption
dated in that notice, the holder of Preferred Shares, Series A, called
for redemption shall, if those shares are certificated, surrender the
certificate evidencing the shares of the Corporation at the place
designated in the notice and shall thereupon be entitled to receive
payment of the redemption price. If less than all the shares
represented by any such surrendered certificates are redeemed, a new
certificate shall be issued representing the unredeemed shares. If the
notice of redemption shall have been duly given, and if on the date
fixed for redemption funds necessary for redemption shall be available
to pay the redemption price, then, notwithstanding that the
certificates evidencing any Preferred Shares, Series A, so called for
redemption shall not have been surrendered, all rights with respect to
the shares so called for redemption shall after that date cease, except
only the right of holder to receive the redemption price without
interest upon surrender of their certificates, if those Preferred
Shares, Series A, are certificated.
On or prior to any date fixed for redemption of Preferred
Shares, Series A, the Corporation may, but shall not be obligated to,
deposit with any bank or trust company in California, as a trust fund:
(1) a sum sufficient to redeem on the date fixed for redemption,
the shares called for redemption;
(2) in the case of redemption of any uncertificated securities,
an officer's certificate setting forth the holders thereof, registered
on the books of the Corporation and the number of shares held by each;
(3) instructions and authority to the bank or trust company to
give the notice of redemption (or to complete the giving of notice if
commenced) and to pay, on or after the date fixed for redemption or
prior thereto the redemption price of the shares to their respective
holders upon the surrender of their share certificates; in the case of
uncertificated securities, then from and after the date of deposit
(although prior to the date fixed for redemption) the shares so called
shall be redeemed and dividends on those shares shall be redeemed.
As used in this section, "officer's certificate" shall mean a
certificate signed and verified by the chairman of the board or the
president or the chief executive officer or any vice president and by
the secretary, the chief financial officer, the treasurer, or any
assistance secretary or assistant treasurer of the Corporation. The
deposit, if any, shall constitute full payment of the shares to their
holders and from and after the date of deposit, the shares shall no
longer be outstanding and the holders thereof shall cease to be
shareholders with the respect to those shares and shall have no rights
with respect to them except the right to receive from the bank or trust
company payment of the redemption price of the shares without interest,
upon the surrender of their certificates the shares
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redeemed are certificated and without surrender if the shares redeemed
are uncertificated as above. Any interest accrued on any funds so
deposited shall be the property of, and paid to, the Corporation. If
the holders of Preferred Shares, Series A, so called for redemption
shall not, at the end of three (3) years from the date fixed for
redemption, have claimed any funds so deposited, the bank or trust
company shall thereupon pay over to the Corporation the unclaimed
funds, and the bank or trust company shall thereafter be relieved of
all responsibility to the holders, and those holders shall look only to
the Corporation, for payment of the redemption price.
So long as any of the Preferred Shares, Series A, shall be
outstanding, the Corporation, as a sinking fund for the purchase or
redemption thereof (herein after "the Sinking Fund") may, but shall not
be obligated to, set aside in cash out of any monies legally available
therefore, after full payment or provision for payment of dividends on
the Preferred Shares, Series A, and all other shares of the Corporation
ranking prior to or on a parity with the Preferred Shares, Series A,
for all prior periods through the end of the last preceding quarterly
dividend period for those shares. The Corporation, at its option, may
make additional payments to, and make purchases or redemption of
Preferred Shares, Series A, pursuant to, the Sinking Fund.
(h) LIQUIDATION. In the event of a voluntary or involuntary
liquidation, dissolution, or winding up of the Corporation, the holders
of Preferred Shares, Series A, shall be entitled to receive out of the
assets of the Corporation, whether those assets are capital or surplus
of any nature, an amount equal to $1.00 per Preferred Share, and a
further amount equal to any dividends thereon declared and unpaid on
the date of that distribution and no more, before any payment shall be
made or any assets distributed to the holders of common shares.
After payment or distribution to the holders of Preferred
Shares, Series A, of the full preferential amounts, the holders of
common shares shall be entitled to receive ratably, all remaining
assets of the Corporation.
A consolidation or merger of the Corporation with or into any
other corporation or corporations, or other entity or the sale of all
or substantially all of the assets of the Corporation, shall not be
deemed to be a liquidation, dissolution, or winding up, within the
meaning of this Section.
RESOLVED FURTHER, that the Chairman of the Board, the President or any
Vice President, and the Secretary, the chief financial officer, the
Treasurer, or any Assistant Secretary or Assistant Treasurer of this
Corporation are each authorized to execute, verify, and file a
certificate of determination of preferences in accordance with
California law.
3. The authorized number of shares of Preferred Stock of the Corporation
is 5,000,000, and the number of shares constituting Series A, none of
which has been issued, is 2,500,000.
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IN WITNESS WHEREOF, the undersigned have executed this certificate on APRIL 11,
2000.
By: /s/ James W. Bentley
-----------------------------
James W. Bentley,
President
By: /s/ Tom M. Djokovich
-----------------------------
Tom M. Djokovich,
Secretary
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VERIFICATION
State of California )
) ss.
County of Orange )
On April 11, 2000, before me, MaryAnn Bentley, personally appeared James W.
Bentley and Tom M. Djokovich, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
By: /s/ MaryAnn Bentley
- --------------------------------------
MaryAnn Bentley,
Notary Public
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