EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
UMDN, INC.
For the purpose of incorporating a corporation under the General
Corporation Law of the State of Delaware, the undersigned does hereby certify as
follows:
ARTICLE I
The name of the corporation is UMDN, Inc.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington,
Delaware 19801, in the City of Wilmington, County of New Castle.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the corporation laws of the State
of Delaware.
ARTICLE IV
A. The corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the corporation is authorized to issue is Fifteen Million
(15,000,000) shares. Ten Million (10,000,000) shares shall be Common Stock,
$.0001 par value per share; and Five Million (5,000,000) shares shall be
Preferred Stock, par value $.0001 per share. The Common Stock shall have
unlimited voting rights, with each share being entitled to one vote, and the
rights to receive the net assets of the corporation upon dissolution, with each
share participating on a stated or, if not stated, pro rata basis.
B. The Board of Directors is hereby authorized from time to time, without
shareholder action, to provide for the issuance of shares of Preferred Stock in
one or more series not exceeding in the aggregate the number of shares of
Preferred Stock authorized by this Certificate of Incorporation, as amended from
time to time, and to determine with respect to each such series the voting
powers, if any (which voting powers, if granted, may be full or limited),
designations, preferences and relative, participating, optional or other special
rights and the qualifications, limitations or restrictions relating thereto.
C. Before the corporation shall issue any shares of Preferred Stock of any
series, a Certificate fixing the voting powers (if any), designations,
preferences, and the relative, participating, optional or other rights, if any,
and the qualifications, limitations and restrictions, if any, relating to the
shares of such series and the number of shares of such series authorized by the
Board of Directors to be issued shall be filed with the Secretary of State in
accordance with the General Corporation Law and shall become effective without
any shareholder action. The Board of Directors is further authorized to increase
or decrease (but not below the number of such shares of such series then
outstanding) the number of shares of any series subsequent to the issuance of
shares of that series.
ARTICLE V
The following provisions are inserted for the management of the business
and for the conduct of the affairs of the corporation, and for further
definition, limitation and regulation of the powers of the corporation and of
its directors and stockholders:
(1) The number of directors of the corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the By-Laws.
Election of directors need not be by ballot unless the By-Laws so provide.
(2) The Board of Directors shall have power without the consent or
vote of the stockholders:
(a) To make, alter, amend, change, add to or repeal all By-Laws
of the corporation not adopted by the stockholders; to fix and vary
the amount of shares to be reserved for any proper purpose; to
authorize and cause to be executed mortgages and liens upon all or any
part of the property of the corporation; to determine the use and
disposition of any surplus or net profits and to fix the times for the
declaration and payment of dividends.
(b) To determine from time to time whether, to what extent, at
what times and places and under what conditions the accounts and books
of the corporation (other than the stock ledger), or any of them,
shall be open to the inspection of the stockholders.
(3) The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders or at any
other meeting of the stockholders called for the purpose of considering any such
act or contract, and any contract or act that shall be approved or be ratified
by the vote of the holders of a majority of the stock of the corporation which
is represented in person or by proxy at such meeting and entitled to vote
thereat (provided that a lawful quorum of stockholders be there represented in
person or by proxy) shall be as valid and as binding upon the corporation and
upon all the stockholders as though it had been approved or ratified by every
stockholder of the corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors' interest, or for any
other reason.
(4) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, this Certificate of Incorporation and to any By-Laws from
time to time made by the stockholders; provided, however, that no By-Laws so
made shall invalidate any prior act of the directors which would have been valid
if such By-Laws had not been made.
ARTICLE VI
No director shall be liable to the corporation or any of its stockholders
for monetary damages for breach of fiduciary duty as a director, except with
respect to (1) a breach of the director's duty of loyalty to the corporation or
its stockholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) liability under
Section 174 of the General Corporation Law or (4) a transaction from which the
director derived an improper personal benefit, it being the intention of the
foregoing provision to eliminate the liability of the corporation's directors to
the corporation or its stockholders to the fullest extent permitted by Section
102(b)(7) of the General Corporation Law, as amended from time to time. The
corporation shall indemnify to the fullest extent permitted by Sections
102(b)(7) and 145 of the General Corporation Law, as amended from time to time,
each person that such Sections grant the corporation the power to indemnify.
ARTICLE VII
Whenever a compromise or arrangement is proposed between the corporation
and its creditors or any class of them and/or between the corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the corporation under Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for the corporation under Section 279 of
Title 8 of the Delaware Code, order a meeting of the creditors or class of
creditors and/or of the stockholders or class of stockholders of the
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors and/or of the stockholders or class of
stockholders of the corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors and/or on
all the stockholders or class of stockholders, of the corporation, as the case
may be, and also on the corporation.
ARTICLE VIII
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by law; and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power.
The undersigned has executed this Certificate of Incorporation this th
--
day of August, 2000.
/s/ Christopher P. O'Connell
---------------------------------------
Christopher P. O'Connell
Incorporator
333 South Hope Street
27th Floor
Los Angeles, CA 90071-1488
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
UMDN, INC.
The undersigned, being the sole incorporator of UMDN, Inc., a
corporation duly incorporated and existing under the laws of the State of
Delaware (the "corporation"), does hereby certify as follows:
FIRST: The corporation has not received any payment for any of its
stock.
SECOND: The Certificate of Incorporation of the corporation is hereby
amended by deleting Article IV, Paragraph A. therefrom and substituting therefor
the following:
A. The corporation is authorized to issue two classes of stock
to be designated, respectively, "Common Stock" and "Preferred
Stock." The total number of shares which the corporation is
authorized to issue is Fifty Million (50,000,000) shares.
Forty Million (40,000,000) shares shall be Common Stock, par
value $.0001 per share; and Ten Million (10,000,000) shares
shall be Preferred Stock, par value $.0001 per share. The
Common Stock shall have unlimited voting rights, with each
share being entitled to one vote, and the rights to receive
the net assets of the corporation upon dissolution, with each
share participating on a stated or, if not stated, pro rata
basis.
THIRD: This amendment to the Certificate of Incorporation of the
corporation has been duly adopted in accordance with Section 241 of the Delaware
General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment of the Certificate of Incorporation of the corporation this ninth day
of January, 2001.
/s/
----------------------------------------------
Christopher P. O'Connell, Incorporator
Parker, Milliken, Clark, O'Hara & Samuelian, a
professional corporation
27th Floor
333 South Hope Street
Los Angeles, California 90071
UMDN, INC.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
UMDN, Inc. (the "Company"), a corporation organized and existing
under the General Corporation Law of the State of Delaware, does hereby certify
that, pursuant to Section 242 of the General Corporation Law of the State of
Delaware, the Certificate of Incorporation of the Company, as heretofore amended
prior to the date hereof, is hereby further amended as follows:
FIRST: The 14,504,444 shares of the Common Stock, par value $.0001
per share, of the Company outstanding on the date hereof are hereby combined
into 3,500,000 shares of such Common Stock at the ratio of .241305354 shares to
be outstanding immediately following such combination for each share outstanding
immediately prior thereto, with the balance of such shares reverting to the
status of authorized but unissued shares. Fractions of shares greater than
one-half are rounded up to the next whole number and fractions of shares less
than one-half are rounded down to the next whole number. The foregoing
combination shall not affect the capital of the Company.
SECOND: This amendment to the Certificate of Incorporation of the
Company has been approved by the written consent of the holders of a majority of
the outstanding shares of the Common Stock of the Company, which was the only
class of capital stock of the Company outstanding on the date of such approval,
in accordance with Section 228 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Company has caused this Certificate of
Amendment to its Certificate of Incorporation to be executed by Kent Keith, its
President, and Starla Keith, its Secretary, this fifth day of April, 2001.
UMDN, INC.
By:/s/
------------------------
Kent Keith, President
By:/s/
------------------------
Starla Keith, Secretary
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
UMDN, INC.
UMDN, INC. (the "Company"), a corporation organized and existing
under the General Corporation Law of the State of Delaware, does hereby certify
that, pursuant to authority conferred upon the Board of Directors of the Company
by the Articles of Incorporation, as amended, of the Company, and pursuant to
Section 151 of the General Corporation Law of the State of Delaware, the Board
of Directors of the Company adopted resolutions on April 5, 2001, providing for
the designations, preferences, voting rights and relative, participating,
optional or other rights, and the qualifications, limitations or restrictions
thereof, of one million fifty thousand (1,050,000) shares of Series A
Convertible Preferred Stock, par value $.0001 per share, as follows:
RESOLVED, that, pursuant to the authorization expressly granted
to and vested in the Board of Directors by the Certificate of
Incorporation of the Company, as amended, the Board of Directors hereby
authorizes the issuance of one million fifty thousand (1,050,000)
shares of Series A Convertible Preferred Stock, par value $.0001 per
share (the "Series A Preferred Shares"), having the following powers,
designations, preferences and other special rights:
I. DIVIDENDS. If the Company declares, pays or sets aside for
payment any dividend on the shares of its outstanding Common Stock, the
Company shall, simultaneously therewith, declare, pay or set aside for
payment, as the case may be, a dividend on each Series A Preferred
Share then outstanding in an amount equal to the dividend that would
have been declared, paid or set aside for payment, as the case may be,
had such Series A Preferred Share been converted into Common Stock
immediately prior to such declaration, payment or setting aside for
payment at the then current Conversion Ratio (as such term is defined
below) irrespective of whether the Series A Preferred Shares are then
convertible. No distributions may be declared or paid upon any shares
of the capital stock of the Company ranking junior to the Series A
Preferred Shares ("Junior Shares") other than its Common Stock without
the prior written consent of the holders of a majority of the then
outstanding Series A Preferred Shares. The Company shall not redeem any
Junior Shares without the prior written consent of the holders of a
majority of the then outstanding Series A Preferred Shares.
II. CONVERSION. The holders of any of the Series A Preferred
Shares may, at their option, convert such shares into shares of Common
Stock on the following terms and conditions:
(a) Each Series A Preferred Share is convertible at any time
into ten fully paid and nonassessable shares of Common Stock of the
Company (such ratio of ten shares of Common Stock for one Series A
Preferred Share is referenced herein as the "Conversion Ratio"). Every
reference herein to the Common Stock of the Company (unless a different
intention is expressed) shall be to the shares of the Common Stock of
the Company, $.0001 par value per share, as such stock exists
immediately after the issuance of the Series A Preferred Shares
provided for hereunder, or to stock into which such Common Stock may be
changed from time to time thereafter.
(b) Notwithstanding the foregoing, no Series A Preferred
Shares may be converted into Common Stock unless and until any one of
the following events shall have occurred: (i) the total number of
shares of Common Stock of the Company outstanding or subject to then
currently exercisable options, warrants or conversion rights
outstanding exceeds seven million five hundred thousand (7,500,000);
(ii) the Company has obtained five hundred thousand dollars ($500,000)
in equity financing from sales of the shares of its Common Stock; (iii)
the shares of the Common Stock of the Company become publicly traded in
compliance with the provisions of the Securities Act of 1933, as
amended, or of the Securities Exchange Act of 1934, as amended; (iv) a
majority of the outstanding shares of the Common Stock are no longer
owned, of record or beneficially, by the holders of a majority of the
outstanding shares of such Common Stock on the date hereof or by other
persons to whom the holders of a majority of the outstanding Series A
Preferred Shares have consented in writing.
(c) (i) If at any time, or from time to time, the Company
shall subdivide the outstanding shares of Common Stock into a greater
number of shares, or reduce the number of outstanding Series A
Preferred Shares by combining any of such shares into a smaller number
of respective shares, the Conversion Ratio of such shares in effect at
the time of the taking of a record date for such dividend or the taking
of such other action shall be proportionately increased as of such
time, and conversely (ii) if at any time, or from time to time, the
Company shall reduce the outstanding shares of Common Stock to a
smaller number of shares, or subdivide the number of outstanding Series
A Preferred Shares into a greater number of respective shares, the
Conversion Ratio in effect at the time of the taking of a record date
for such dividend or the taking of such other action shall be
proportionately decreased as of such time. Likewise, if at any time, or
from time to time, the Company shall subdivide the outstanding shares
of Common Stock into a greater number of shares or reduce the
outstanding shares of Common Stock to a smaller number of shares, then
the number of shares of Common Stock referenced in clause (i) of II(b)
above shall be proportionately increased or decreased, respectively.
(d) Subject to the provisions of Section IV hereof, if the
Company consolidates or merges with or into any other corporation or
other business entity or reclassifies its outstanding shares of Common
Stock (other than by way of subdivision or reduction of such shares),
each Series A Preferred Share shall thereafter be convertible into the
number of shares of stock or other securities or property of the
Company, or of the entity resulting from such consolidation or merger,
to which a holder of the number of shares of Common Stock delivered
upon conversion of such Series A Preferred Share would have been
entitled upon such consolidation or merger or reclassification, had the
holder of such Series A Preferred Share exercised the right of
conversion and had such Common Stock been issued and outstanding and
had such holder been the holder of record of such Common Stock at the
time of such consolidation, merger or reclassification; and the Company
shall make lawful provision therefor as a part of such consolidation,
merger or reclassification.
(e) On presentation and surrender to the Company or at any
office or agency maintained for the transfer of the Company's
securities of the certificates representing Series A Preferred Shares
to be converted, duly endorsed in blank for transfer or accompanied by
proper instruments of assignment or transfer in blank, the holder of
such Series A Preferred Shares shall be entitled, subject to the
limitations herein contained, to receive, and the Company shall issue
and deliver to such holder, in exchange therefor a certificate or
certificates for fully paid and nonassessable shares of Common Stock on
the foregoing basis. The shares so delivered shall be deemed to have
been converted and the person converting the same to have become the
holder of record of Common Stock, for the purpose of receiving
dividends and for all other purposes, as of the presentation and
surrender to the Company of the certificate or certificates
representing the Series A Preferred Shares to be converted. If a holder
of record surrenders a certificate or certificates representing Series
A Preferred Shares and does not convert all of such shares, the Company
shall deliver to such holder a new certificate representing the
remaining unconverted Series A Preferred Shares. The Company shall not
be required to make any such conversion, and no surrender of the Series
A Preferred Shares shall be effective for such purpose, while the books
for the transfer of any such surrendered shares or the Common Stock are
closed for any purpose, but the surrender of such Series A Preferred
Shares for conversion during any period while any of such respective
books are closed shall become effective for all purposes of conversion
immediately upon the reopening of the respective books, as if the
conversion had been made on the date such Series A Preferred Shares
were surrendered. The Company shall not close its stock transfer books
except in connection with a merger, consolidation, liquidation or
dissolution of the Company on notice to each holder of Series A
Preferred Shares not later than thirty days prior to the closing of its
stock transfer books, which shall not occur until the record date for
any such merger, consolidation, liquidation or dissolution.
(f) The Company shall, so long as any of the Series A
Preferred Shares are outstanding, reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of
effecting the conversion of the Series A Preferred Shares, such number
of shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all of the Series A Preferred Shares then
outstanding.
(g) The Company shall pay any and all taxes which may be
imposed upon it with respect to the issuance and delivery of Common
Stock upon the conversion of the Series A Preferred Shares as herein
provided. The Company shall not be required in any event to pay any
transfer or other taxes by reason of the issuance of such Common Stock
in names other than those in which the certificates surrendered for
conversion are registered on the Company's records, and no such
conversion or issuance of Common Stock shall be made unless and until
the person requesting such issuance has paid to the Company the amount
of any such tax, or has established to the satisfaction of the Company
and its transfer agent, if any, that such tax has been paid.
III. VOTING RIGHTS. Except as and to the extent required by the
General Corporation Law of the State of Delaware or as expressly
provided herein, none of the Series A Preferred Shares shall entitle
the holders thereof to vote on any matters submitted to the
shareholders of the Company. So long as any of the Series A Preferred
Shares remain outstanding, (i) the Board of Directors of the Company
shall consist of no more than three members, of which the holders of
the Series A Preferred Shares, voting as a separate class, shall be
entitled to elect two members; (ii) the Company shall not merge into,
permit to be merged into it, or consolidate with any other corporation
or other business entity without the approval of the holders of a
majority of the outstanding Series A Preferred Shares voting as a
separate class; and (iii) the Company shall not sell or otherwise
dispose of all or substantially all of its assets without the approval
of the holders of a majority of the outstanding Series A Preferred
Shares voting as a separate class.
IV. LIQUIDATION, DISSOLUTION, WINDING UP. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Company, the Company shall so notify the holders of the Series A
Preferred Shares not later than thirty (30) calendar days prior to the
effective date thereof; and such holders shall be entitled to receive
in such liquidation, dissolution or winding up the same amount they
would have received had all the then outstanding Series A Preferred
Shares been converted into Common Stock immediately prior to such
liquidation, dissolution or winding up at the then current Conversion
Ratio irrespective of whether the Series A Preferred Shares are then
convertible. The purchase, redemption or conversion by the Company of
stock of any class, in any manner permitted by law, shall not, for the
purposes hereof, be regarded as a liquidation, dissolution or winding
up of the Company.
V. PREFERRED RANK. The rights of the shares of Common Stock and
all shares of Preferred Stock of the Company other than the Series A
Preferred Shares shall be subject and subordinate to the dividend,
redemption and liquidation preferences and relative rights of the
Series A Preferred Shares.
VI. VOTE TO CHANGE PREFERRED SHARES. The affirmative vote at a
meeting duly called for such purpose, or the written consent without a
meeting, of the holders of not less than a majority of the then
outstanding Series A Preferred Shares, voting as a separate class,
shall be required to amend, alter, change or repeal any of the powers,
designations, preferences and rights of the Series A Preferred Shares
or to authorize the creation of any Series of Preferred Stock of the
Company senior in any respect to such Series of Preferred Shares or the
issuance of a greater number of shares than theretofore authorized of
any theretofore created Series of Preferred Shares senior to the Series
A Preferred Shares.
VII. NOTICES. Any notice required by the provisions of this
Certificate to be given to the holders of Series A Preferred Shares
shall be deemed given if deposited in the United States mail, postage
prepaid, and addressed to each holder of record at the respective
address of such holder as the same shall appear on the stock transfer
books of the Company.
IN WITNESS WHEREOF, the Company has caused this certificate to be
executed by Kent Keith, its President, and Starla Keith, its Secretary, as of
this fifth day of April, 2001, and to be filed in accordance with the General
Corporation Law of the State of Delaware.
UMDN, INC.
By: /s/
------------------------------------
Kent Keith, President
By: /s/
------------------------------------
Starla Keith, Secretary
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
UMDN, INC.
UMDN, INC. (the "Company"), a corporation organized and existing under
the General Corporation Law of the State of Delaware, does hereby certify that,
pursuant to authority conferred upon the Board of Directors of the Company by
the Articles of Incorporation, as amended, of the Company, pursuant to Section
151 of the General Corporation Law of the State of Delaware, and pursuant to the
consent of a majority of the holders of a majority of the outstanding shares of
Series A Convertible Preferred Stock, par value $.0001 per share, of the
Company, the Certificate of Designations, Preferences and Rights of Series A
Convertible Preferred Stock of the Company is hereby amended by deleting Article
II thereof and substituting therefor the following:
"II. Conversion. The Company and the holders of the Series A Preferred
Shares may, at its or their option, convert such shares into shares of
Common Stock on the following terms and conditions:
(a) Each Series A Preferred Share is convertible at any time
into ten fully paid and nonassessable shares of Common Stock of the
Company (such ratio of ten shares of Common Stock for one Series A
Preferred Share is referenced herein as the "Conversion Ratio"). Every
reference herein to the Common Stock of the Company (unless a different
intention is expressed) shall be to the shares of the Common Stock of
the Company, $.0001 par value per share, as such stock exists
immediately after the issuance of the Series A Preferred Shares
provided for hereunder, or to stock into which such Common Stock may be
changed from time to time thereafter.
(b) The Series A Preferred Shares may be converted into Common
Stock as provided for above at the discretion of the Company or of the
Series A Preferred Shareholders.
(c) (i) If at any time, or from time to time, the Company
shall subdivide the outstanding shares of Common Stock into a greater
number of shares, or reduce the number of outstanding Series A
Preferred Shares by combining any of such shares into a smaller number
of respective shares, the Conversion Ratio of such shares in effect at
the time of the taking of a record date for such dividend or the taking
of such other action shall be proportionately increased as of such
time, and conversely (ii) if at any time, or from time to time, the
Company shall reduce the outstanding shares of Common Stock to a
smaller number of shares, or subdivide the number of outstanding Series
A Preferred Shares into a greater number of respective shares, the
Conversion Ratio in effect at the time of the taking of a record date
for such dividend or the taking of such other action shall be
proportionately decreased as of such time. Likewise, if at any time, or
from time to time, the Company shall subdivide the outstanding shares
of Common Stock into a greater number of shares or reduce the
outstanding shares of Common Stock to a smaller number of shares, then
the number of shares of Common Stock referenced in clause (i) of II(b)
above shall be proportionately increased or decreased, respectively.
(d) Subject to the provisions of Section IV hereof, if the
Company consolidates or merges with or into any other corporation or
other business entity or reclassifies its outstanding shares of Common
Stock (other than by way of subdivision or reduction of such shares),
each Series A Preferred Share shall thereafter be convertible into the
number of shares of stock or other securities or property of the
Company, or of the entity resulting from such consolidation or merger,
to which a holder of the number of shares of Common Stock delivered
upon conversion of such Series A Preferred Share would have been
entitled upon such consolidation or merger or reclassification, had the
holder of such Series A Preferred Share exercised the right of
conversion and had such Common Stock been issued and outstanding and
had such holder been the holder of record of such Common Stock at the
time of such consolidation, merger or reclassification; and the Company
shall make lawful provision therefor as a part of such consolidation,
merger or reclassification.
(e) The Company may exercise its right to convert the Series A
Preferred Shares into Common Stock at any time by giving notice of such
conversion to the holders of all outstanding Series A Preferred Shares;
provided, however, that the Company may only convert all then
outstanding Series A Preferred Shares as a single action and may not
convert an amount less than the total then outstanding Series A
Preferred Shares. If the Company exercises its right to convert the
Series A Preferred Shares into Common Stock as provided herein, such
conversion shall be effective as of the date of the notice provided by
the Company to all of the holders of the Series A Preferred Shares, and
the certificates which formerly represented Series A Preferred Shares
shall then and thereafter represent solely the Common Stock into which
such Series A Preferred Shares shall have been so converted. On
presentation and surrender to the Company or at any office or agency
maintained for the transfer of the Company's securities of the
certificates representing Series A Preferred Shares so converted, duly
endorsed in blank for transfer or accompanied by proper instruments of
assignment or transfer in blank, the Company or such office or agency
shall issue and deliver, in exchange therefor, certificates
representing the shares of Common Stock into which such Series A
Preferred Shares shall have been so converted.
(f) On presentation and surrender to the Company or at any
office or agency maintained for the transfer of the Company's
securities by any holder thereof exercising his right to convert the
same of the certificates representing Series A Preferred Shares to be
converted, duly endorsed in blank for transfer or accompanied by proper
instruments of assignment or transfer in blank, the holder of such
Series A Preferred Shares shall be entitled, subject to the limitations
herein contained, to receive, and the Company shall issue and deliver
to such holder, in exchange therefor a certificate or certificates for
fully paid and nonassessable shares of Common Stock on the foregoing
basis. If a holder of record surrenders a certificate or certificates
representing Series A Preferred Shares and does not convert all of such
shares, the Company shall deliver to such holder a new certificate
representing the remaining unconverted Series A Preferred Shares. The
Company shall not be required to make any such conversion, and no
surrender of the Series A Preferred Shares shall be effective for such
purpose, while the books for the transfer of any such surrendered
shares or the Common Stock are closed for any purpose, but the
surrender of such Series A Preferred Shares for conversion during any
period while any of such respective books are closed shall become
effective for all purposes of conversion immediately upon the reopening
of the respective books, as if the conversion had been made on the date
such Series A Preferred Shares were surrendered. The Company shall not
close its stock transfer books except in connection with a merger,
consolidation, liquidation or dissolution of the Company on notice to
each holder of Series A Preferred Shares not later than thirty days
prior to the closing of its stock transfer books, which shall not occur
until the record date for any such merger, consolidation, liquidation
or dissolution. Any Series A Preferred Shares so surrendered by the
holder thereof for conversion shall be deemed to have been converted
and the person converting the same to have become the holder of record
of Common Stock as of the presentation and surrender to the Company of
the certificate or certificates representing the Series A Preferred
Shares to be converted.
(g) The Company shall, so long as any of the Series A
Preferred Shares are outstanding, reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of
effecting the conversion of the Series A Preferred Shares, such number
of shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all of the Series A Preferred Shares then
outstanding.
(h) The Company shall pay any and all taxes which may be
imposed upon it with respect to the issuance and delivery of Common
Stock upon the conversion of the Series A Preferred Shares as herein
provided. The Company shall not be required in any event to pay any
transfer or other taxes by reason of the issuance of such Common Stock
in names other than those in which the certificates surrendered for
conversion are registered on the Company's records, and no such
conversion or issuance of Common Stock shall be made unless and until
the person requesting such issuance has paid to the Company the amount
of any such tax, or has established to the satisfaction of the Company
and its transfer agent, if any, that such tax has been paid."
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed by Kent Keith, its President, and Starla Keith, its Secretary,
effective as of this first day of February, 2002, and to be filed in accordance
with the General Corporation Law of the State of Delaware.
UMDN, INC.
By: /s/
------------------------------------
Kent Keith, President
By: /s/
------------------------------------
Starla Keith, Secretary
CERTIFICATE OF RETIREMENT OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
UMDN, INC.
UMDN, INC. (the "Company"), a corporation organized and existing under
the General Corporation Law of the State of Delaware, does hereby certify that,
pursuant to authority conferred upon the Board of Directors of the Company by
the Articles of Incorporation, as amended, of the Company and pursuant to
Section 151 of the General Corporation Law of the State of Delaware, the Board
of Directors of the Company adopted resolutions on February 1, 2002, providing
for the retirement of the Series A Convertible Preferred Stock of UMDN, Inc. as
follows:
RESOLVED, that no shares of the Series A Convertible Preferred Stock of
UMDN, Inc. are currently outstanding and none thereof shall be issued in the
future pursuant to the Certificate of Designations, Preferences and Rights of
Series A Convertible Preferred Stock previously filed on April 6, 2001, and
amended as of February 1, 2002; that the shares that were subject to that
Certificate, all of which were converted into shares of Common Stock, shall
resume their status as authorized but unissued shares of Preferred Stock, par
value $.0001 per share; and that the Certificate of Designations, Preferences
and Rights of Series A Convertible Preferred Stock, as so amended, is hereby
eliminated.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed by Kent Keith, its President, and Starla Keith, its Secretary,
effective as of this first day of February, 2002, and to be filed in accordance
with the General Corporation Law of the State of Delaware.
UMDN, INC.
By: /s/
------------------------------------
Kent Keith, President
By: /s/
------------------------------------
Starla Keith, Secretary