NEW JERSEY DIVISION OF REVENUE
RESTATED CERTIFICATE OF INCORPORATION
of
DYNASIL CORPORATION OF AMERICA
To: Treasurer, State of New Jersey
Pursuant to the provisions of Sections 14A:7-2(4) and 14A:9-5,
Corporations, General, of the New Jersey Statutes, the
undersigned corporation hereby executes the following Restated
Certificate of Incorporation:
Dated: May 6, 2005
1. The name of the corporation is Dynasil Corporation of America.
2. The purposes for which the Corporation is organized are to
engage in any and all activities within the purposes for which
corporations may be organized under the New Jersey Business
Corporation Act.
3. The Corporation is authorized to issue an aggregate of
35,000,000 shares, consisting of two classes, as follows: One
class of stock shall be 25,000,000 authorized shares of Common
Stock, par value $0.0005 per share. The other class of stock
shall be 10,000,000 authorized shares of Preferred Stock, par
value $0.001. The Preferred Stock, or any series thereof, shall
have such designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations
or restrictions thereof as shall be expressed in the resolution
or resolutions providing for the issue of such stock adopted be
the board of directors and may be made dependent upon facts
ascertainable outside such resolution or resolutions of the board
of directors, provided that the matter in which such facts shall
operate upon such designations, preferences, rights and
qualifications; limitations or restrictions of such class or
series of stock is clearly and expressly set forth in the
resolution or resolutions providing for the issuance of such
stock by the board of directors and filed pursuant to Section
14A:7-2(4) of the New Jersey Business Corporation Act.
4. The registered office of the Corporation is Dynasil
Corporation of America, Cooper Road and Taunton Avenue, West
Berlin Township, Camden County, New Jersey 08009 and the
registered agent of the Corporation is Craig T. Dunham.
5. The Board of Directors at the effective date of this Restated
Certificate of Incorporation consists of three (3) members
elected by the Shareholders of the Corporation for a term of one
(1) year and until their respective successors are duly elected
and qualified. The names and addresses of the Board of Directors
at the effective date of this Restated Certificate of
Incorporation are:
James Saltzman 1508 Gypsy Hill Road, Gwynedd, PA 19437
Craig T. Dunham 385 Cooper Road, West Berlin, NJ 08091
David Manzi 315 Richard Mine Road, Wharton, NJ 07885
6. The duration of the Corporation is and shall be perpetual.
7. Any directorship to be filled by reason of an increase in the
number of Directors may be filled either by the Board of
Directors or by the Shareholders at an annual meeting or at a
special meeting of Shareholders called for that purpose.
8. The Board of Directors shall have the power to remove
Directors for cause and to suspend Directors pending a final
determination that cause exists for removal.
9. Advance notice of shareholder nominations for the election of
Directors shall be given in the manner provided in the Bylaws of
the Corporation. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80 percent of the voting power of
all the shares of the Corporation entitled to vote generally in
the election of directors, voting together as a single class,
shall be required to alter, amend or repeal this Article 9 to
adopt any provision inconsistent therewith.
10. Any action required or permitted to be taken by the holders
of the Common Stock of the Corporation must be effected at a duly
called annual or special meeting of such holders and may not be
effected by any consent in writing by such holders. Except as
otherwise required by law, special meetings of shareholders of
the Corporation may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the entire
Board of Directors or as otherwise provided in the Bylaws of the
Corporation. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80 percent of the voting power of
all the shares of the Corporation entitled to vote generally in
the election of directors voting together as a single class,
shall be required to alter, amend or repeal this Article 10 or to
adopt any provision inconsistent therewith.
11. The vote of shareholders of the Corporation required to
approve any Business Combination shall be as set forth in this
Article 11. The term "Business Combination" shall have the
meaning ascribed to it in (a)(B) of this Article; each other
capitalized term used in this Article shall have the meaning
ascribed to it in (c) of this Article.
(a)(A) In addition to any affirmative vote required by law or the
Certificate of Incorporation, and except as otherwise expressly
provided in (b) of this Article 11, a Business Combination shall
not be consummated without the affirmative vote of the holders of
at least 80 percent of the combined voting power of the then
outstanding shares of stock of all classes and series of the
Corporation entitled to vote generally in the election of
directors ("Voting Stock"), in each case voting together as a
single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a
lesser percentage may be specified, by law or by the Certificate
of Incorporation or in any agreement with any national securities
exchange or otherwise.
(B) The term "Business Combination" as used in this Article 11
shall mean:
(1) any merger or consolidation of the Corporation or any
Subsidiary with (i) any Interested Shareholder or (ii) any other
corporation or entity (whether or not itself an Interested
Shareholder) which is, or after each merger or consolidation
would be, an Affiliate of an Interested Shareholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any
Affiliate of any Interested Shareholder of all or a Substantial
Part of the assets of the Corporation or any Subsidiary; or
(3) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate of any Interested Shareholder in
exchange for cash, securities or other property (or a combination
thereof), other than the issuance of securities upon the
conversion of convertible securities of the Corporation or any
Subsidiary which were not acquired by such Interested Shareholder
(or such Affiliate) from the Corporation or a Subsidiary; or
(4) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of any Interested
Shareholder; or
(5) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or
into or otherwise involving an Interested Shareholder) which in
any such case has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of
any class or series of stock or securities convertible into stock
of the Corporation or any Subsidiary which is directly or
indirectly beneficially owned by any Interested Shareholder or
any Affiliate of any Interested Shareholder;
(b) The provision of (a) of this Article 11 shall not be
applicable to any Business Combination in respect of which all of
the conditions specified in either of the following paragraphs A
and B are met, and such Business Combination shall require only
such affirmative vote as is required by law and any other
provision of the Certificate of Incorporation:
(A) Such Business Combination shall have been approved by a
majority of the Disinterested Directors, which term, in this
Article, refers to the Disinterested Director if there is only
one;
(B) Each of the six conditions specified in the following clauses
(1) through (6) shall have been met:
(1) the aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination (the
"Consummation Date" of any consideration other than cash to be
received by holders of Common Stock in such Business Combination
shall be at least equal to the higher of the following: (i) (if
applicable) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid in
order to acquire any shares of Common Stock beneficially owned by
the Interested Shareholder which were acquired beneficially by
such Interested Shareholder (x) within the two year period
immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Shareholder,
whichever is higher (adjusted to reflect the occurrence of any
reclassification, recapitalization, stock split, reverse stock
split, stock dividend or other adjustment in the number of
outstanding shares of Common Stock between the date of
acquisition by the Interested Shareholder and the Consummation
Date); or (ii) the Fair Market Value per share of Common Stock on
the Announcement Date or on the date on which the Interested
Shareholder became an Interested Shareholder (the Determination
Date), whichever is higher; and
(2) the aggregate amount of the cash and the Fair Market Value as
of the Consummation Date of any consideration other than cash to
be received per share by holders of shares of any other class or
series of Voting Stock shall be at least equal to the highest of
the following (it being intended that the requirements of this
clause (B)(2) shall be required to be met with respect to every
class and series of such outstanding Voting Stock, whether or not
the Interested Shareholder beneficially owns any shares of a
particular class or series of Voting Stock): (i) (if applicable)
the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid in order to
acquire any shares of such class or series of Voting Stock
beneficially owned by the Interested Shareholder which were
acquired beneficially by such Interested Shareholder (x) within
the two-year period immediately prior to the Announcement Date or
(y) in the transaction in which it became an Interested
Shareholder, whichever is higher; (ii) (if applicable) the
highest preferential amount per share to which the holders of
shares of such class or series of Voting Stock are entitled in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; and (iii) the Fair
Market Value per share of such class or series of Voting Stock on
the Announcement Date or the Determination Date, whichever is
higher; and
(3) the consideration to be received by holders of a particular
class or series of outstanding Voting Stock (including Common
Stock) shall be in cash or in the same form as was previously
paid in order to acquire beneficially shares of such class or
series of Voting Stock that are beneficially owned by the
Interested Share holder and if the Interested Shareholder
beneficially owns shares of any class or series of Voting Stock
that were acquired with varying forms of consideration, the form
of consideration to be received by holders of such class or
series of Voting Stock shall be either cash or the form used to
acquire beneficially the largest number of shares of such class
or series of Voting Stock beneficially acquired by it prior to
the Announcement Date; and
(4) after such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination: (i) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to
declare and pay at the regular dates therefore the full amount of
any dividends (whether or not cumulative) payable on any class or
series of stock having a preference over the Common Stock as to
dividends or upon liquidation; (ii) there shall have been (x) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the
Disinterested Directors, and (y) an increase in such annual rate
of dividends (as necessary to prevent any such reduction ) in the
event of any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure so to
increase such annual rate was approved by a majority of the
Disinterested Directors; and (iii) such Interested Shareholder
shall not have become the beneficial owner of any additional
shares of Voting Stock except as part of the transaction in which
it became an Interested Shareholder; and
(5) after such Interested Shareholder has become an Interested
Shareholder such Interested Shareholder shall not have received
the benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or
other financial assistance or tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise; and
(6) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1984 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed to public shareholders of
the Corporation at least 30 days prior to the consummation of
such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such
Act or subsequent provisions).
(c) For the purposes of this Article 11:
(A) A "person" shall mean any individual, firm, corporation or
other entity.
(B) "Interested Shareholder" shall mean any person (other than
the Corporation or any Subsidiary and except as provided below)
who or which: (1) is the beneficial owner, directly or
indirectly, of more than 20 percent of the combined voting power
of the then outstanding shares of Voting Stock; or (2) is an
Affiliate of the Corporation and at any time within the two-year
period immediately prior to the date in question, except as
provided below, was the beneficial owner, directly or indirectly,
of 20 percent or more of the combined voting power of the then
outstanding shares of Voting Stock; or (3) is an assignee of any
shares of Voting Stock that were at any time within the two-year
period immediately prior to the date in question, except as
provided below, beneficially owned by any Interested Shareholder,
if such assignment shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
Notwithstanding the above, a person who or which would otherwise
be an Interested Shareholder within the meaning of subparagraphs
(1), (2), or (3) of this paragraph (B), shall not be deemed to be
an Interested Shareholder if that person was the beneficial owner
of 10 percent or more of the combined voting power of the then
outstanding shares of voting stock on the effective date of this
Article 11.
(C) A person shall be a "beneficial owner" of any Voting Stock:
(1) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or (2) which such
person or any of its Affiliates or Associates has (a) the right
to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or
(b) the right to vote or direct the vote pursuant to any
agreement, arrangement or understanding; or (3) which are
beneficially owned, directly or indirectly, by an other person
with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting
Stock.
(D) For the purposes of determining whether a person is an
Interested Shareholder pursuant to (c)(B) of this Article 11, the
number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of (c)(C) of this
Article but shall not include any other shares of Voting Stock
that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(E) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1984,
as in effect on February 1, 1986.
(F) "subsidiary" means any corporation of which more than 50
percent of the combined voting power of the then outstanding
shares of stock entitled to vote generally in the election of
directors is owned, directly or indirectly, by the Corporation or
by a Subsidiary or by the Corporation and one or more
Subsidiaries; provided, however, that for the purpose of the
definition of Interested Shareholder set forth in (c)(B) of this
Article 11, the term "Subsidiary" shall mean only a corporation
of which a majority of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the
election of directors is owned, directly or indirectly, by the
Corporation.
(G) "Disinterested Director" means any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a
nominee of, the Interested Shareholder and was a member of the
Board prior to the time that the Interested Shareholder became
and Interested Shareholder, and any successor of a Disinterested
Director who is unaffiliated with, and not a nominee of, the
Interested Shareholder and who is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors
then on the Board of Directors.
(H) "Fair Market Value" means: (1) in the case of stock, the
highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
principal United States securities exchange registered under the
Securities Exchange Act of 1984 on which such stock is listed,
or, if such stock is not listed on any such exchange, the highest
closing sales price or bid quotation with respect, to a share of
such stock during the 30-day period preceding the date in
question as quoted by the National Association of Securities
Dealers. Inc. Automated Quotations System or any system then in
use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as
determined by a majority of the Disinterested Directors in good
faith; and (2) in the case of stock of any class or series which
is not traded on any United States registered securities exchange
nor in the over the counter market or in the case of property
other than cash or stock the fair market value of such property
on the date in question as determined by a majority of the
Disinterested Directors in good faith. The Fair Market Value of
stock of any class of the Corporation shall be adjusted to
reflect the occurrence of any reclassification, recapitalization,
stock split, reverse stock split, stock dividend or other
adjustment in the number of shares outstanding between the date
in question and the Consummation Date.
(I) In the event of any Business Combination in which the
Corporation survives, the phrase "other consideration to be
received" as used in (b)(B)(1) and (2) of this Article 11 shall
include the shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock retained by the holders of such
shares.
(J) "Announcement Date" means the date of first public
announcement of the proposed Business Combination.
(K) "Determination Date" means the date on which the Interested
Shareholder became an Interested Shareholder.
(L) "Substantial Part" means more than 10 percent of the book
value of the total assets of the entity in question, as of the
end of its most recent fiscal year ending prior to the
Consummation Date.
(d) A majority of the Disinterested Directors of the Corporation
shall have the right and power to determine, on the basis of
information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article 11 including,
without limitation (A) whether a person is an Interested
Shareholder, (B) the number of shares of Voting Stock
beneficially owned by any person (C) whether a person is an
Affiliate or Associate of another person and (D) whether the
requirements of (b) of this Article 11 have been met with respect
to any Business Combination. The good faith determination of a
majority of the Disinterested Directors on such matters shall be
conclusive and binding for all purposes of this Article 11.
(e) Nothing contained in this Article 11 shall be construed to
relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
(f) Notwithstanding anything contained in the Certificate of
Incorporation to the contrary, the affirmative vote of the
holders of at least 80 percent of the voting power of the Voting
Stock, voting together as a single class, shall be required to
alter, amend, or repeal this Article 11 or to adopt any provision
inconsistent herewith.
12. A director or officer of the Corporation shall not be
personally liable to the Corporation or its shareholders for
damages for breach of any duty owed to the Corporation or its
shareholders, except that this Article 12 shall not relieve a
director or officer from liability for any breach of duty based
upon an act or omission (i) in breach of such person's duty of
loyalty to the Corporation or its shareholders, or (ii) not in
good faith or involving a knowing violation of law, or (iii)
resulting in receipt by such person of an improper personal
benefit. If the New Jersey Business Corporation Act is amended
after approval by the shareholders of this Article 12 to
authorize corporate action further eliminating or limiting the
personal liability of directors or officers, then the liability
of a director and/or officer of the Corporation, as the case may
be, shall, without further corporate action, be eliminated or
limited to the fullest extent permitted by the New Jersey
Business Corporation Act as so amended. Any repeal or
modification of the foregoing paragraph by the shareholders of
the Corporation or otherwise shall not adversely affect any right
or protection of a director or officer of the Corporation
existing at the time of such repeal or modification.
13. Article 13 A director of the Corporation may not be removed
without cause.
14. Anything in paragraphs 14A:9-2(4)(c), 14A:10-3(2), 14A:10-
11(1)(c), 14A:12-4(4) or elsewhere in the New Jersey Business
Corporation Act (the "Act" to the contrary notwithstanding, the
Corporation hereby adopts the majority voting requirement
prescribed in paragraph 14A:5-11 of the Act as that which shall
be required to authorize any action, other than the election of
directors, that is to be taken by vote of the shareholders of the
Corporation.
15. Series A 10% Cumulative Convertible Preferred Stock
A series of cumulative convertible preferred shares designated
"Series A 10% Cumulative Convertible Preferred Stock" is
established. The Series A 10% Cumulative Convertible Preferred
Stock shall have a par value of $.001 per share. When issued for
a price in excess of that amount, the shares of Series A 10%
Cumulative Convertible Preferred Stock shall be fully paid and
nonassessable. The Series A 10% Cumulative Convertible Preferred
Stock shall consist of 700,000 preferred shares, which the Board
of Directors may increase only in connection with a stock split
or decrease from time to time but not below the number of shares
of Series A 10% Cumulative Convertible Preferred Stock then
outstanding. On redemption, conversion, or other reacquisition of
any of the Series A 10% Cumulative Convertible Preferred Stock,
the reacquired shares shall be cancelled and shall become part of
the authorized and unissued preferred stock but shall not be
authorized and unissued Series A 10% Cumulative Convertible
Preferred Stock. The rights, preferences, designations and
limitations of the Series A 10% Cumulative Convertible Preferred
Stock are as follows:
Priority
(a) The Series A 10% Cumulative Convertible Preferred Stock shall
be senior to any other class or series of preferred shares in
respect of (1) payment of dividends; (2) payment on dissolution,
liquidation or winding up and (3) redemption, except for any
class or series that the Board of Directors shall specifically
state is on a parity with shares of the Series A 10% Cumulative
Convertible Preferred Stock.
Dividend Rate and Payment Dates
(b) Holders of shares of Series A 10% Cumulative Convertible
Preferred Stock shall be entitled to receive dividends when, as
and if declared by the Board of Directors at the rate of ten
percent (10%) per annum of the amount paid for each share, and no
more. Except for the first dividend, dividends shall be payable
quarterly on the last day of March, June, September and December
in each year for the quarterly period ending on that date. The
first dividend shall be payable on June 30, 2005 and shall be the
sum of the dividend payable for the quarter ended on that date
and a dividend prorated at such annual rate for the period from
the date of issue and March 31, 2005.
Priority and Cumulative Rights
(c) Dividends on the Series A 10% Cumulative Convertible
Preferred Stock shall be cumulative from the date of issuance;
provided, however, that accumulations of dividends shall not bear
interest. In no event, so long as any shares of the Series A 10%
Cumulative Convertible Preferred Stock are outstanding, shall the
Corporation pay or declare any cash or property dividends,
distribute any of its assets, or purchase or acquire for value
any shares of the Corporation unless and until all dividends on
the Series A 10% Cumulative Convertible Preferred Stock for all
prior periods and for the then current quarterly period have been
paid or have been declared and a sum sufficient for payment has
been set apart. This subparagraph shall not prohibit the
declaration and payment of any dividend on Common Stock payable
in Common Stock.
Preferences on Dissolution, Liquidation, or Winding Up
(d) On any voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Corporation, before any payment
or other distribution, whether in cash, property or otherwise,
shall be made to the holders of any other shares of the
Corporation, the holders of the Series A 10% Cumulative
Convertible Preferred Stock shall be entitled to receive for each
share of Series A 10% Cumulative Convertible Preferred Stock they
hold the sum of $1.00 plus an amount equal to all unpaid
dividends accrued to the date established for payment of the
distribution, and no more. For the purpose of this Subparagraph
(d), dividends shall be deemed to accrue on a daily basis. The
merger or consolidation of the Corporation into or with any other
corporation, the merger of any other corporation into the
Corporation, or the sale, lease, or conveyance of all or
substantially all of the property or business of the Corporation
shall not be deemed to be a dissolution, liquidation, or winding
up for purposes of this Subparagraph (d). If, on any voluntary or
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, the assets of the Corporation are
insufficient to permit full payment to the holders of the Series
A 10% Cumulative Convertible Preferred Stock as provided in this
Subparagraph, then the holders of the Series A 10% Cumulative
Convertible Preferred Stock shall share ratably in any
distribution of assets in proportion to the full amounts to which
they would otherwise be respectively entitled.
Redemption
(e) The Corporation shall not redeem or repurchase any other
class or series of Preferred Stock or Common Stock unless and
until all shares of the Series A 10% Cumulative Convertible
Preferred Stock have been redeemed. Commencing on and after the
second anniversary of their issuance, shares of Series A 10%
Cumulative Convertible Preferred Stock may be redeemed at any
time or periodically, in whole or in part, at the option of the
Corporation by the vote of its Board of Directors. The shares of
the Series A 10% Cumulative Convertible Preferred Stock shall be
redeemed on the following conditions:
Redemption Price
(1) The redemption price shall be $1.00 per share plus any
accrued and unpaid dividends to the redemption date. For the
purpose of this Subparagraph, dividends shall be deemed to accrue
on a daily basis.
Partial Redemption
(2) If the Corporation redeems less than all of the outstanding
shares of Series A 10% Cumulative Convertible Preferred Stock,
the redemption may be pro rata, by lot or in any equitable manner
that the Board of Directors in its discretion shall determine.
Notice
(3) Written notice of redemption shall be given to each holder of
record of the shares of Series A 10% Cumulative Convertible
Preferred Stock to be redeemed. The notice of redemption shall be
given by first class mail to each holder's address as it shall
appear on the stock books of the Corporation. In addition, the
Corporation may give notice by any other method or in any other
fashion, including by telephone, facsimile, email or the like, as
the Board of Directors shall deem necessary, appropriate,
convenient or reasonable under the circumstances. Such notice of
redemption shall be given at least thirty (30) days and not more
than sixty (60) days before the date fixed for redemption. Each
notice shall specify the shares of stock to be redeemed, the
redemption price, the date fixed for redemption, the place for
payment of the redemption price and for surrender of the
certificate representing the shares to be redeemed, and, if less
than all of the shares of the holder are to be redeemed, the
number of the holder's shares to be redeemed. No defect in the
notice nor any defect in the mailing of it shall alone affect the
validity of the proceedings for redemption except as to any
holder to whom the Corporation has failed to mail the notice.
Deposit
(4) On or before the date fixed for the redemption of any shares
of Series A 10% Cumulative Convertible Preferred Stock, the
Corporation shall deposit sums sufficient to redeem the shares in
a trust fund or escrow account for the benefit of the respective
holders of the shares. This deposit shall be made with one or
more banks or trust companies, each having capital and surplus of
at least $ 5,000,000 and doing business in any city in the United
States in which the Corporation or any of its subsidiaries shall
have an office or conduct operations, with any bank, trust
company or other person, firm or entity in the United States duly
appointed and acting as transfer agent for any shares of the
capital stock the Corporation or with any other person, firm or
entity the Board of Directors reasonably believes capable of
assisting the Corporation in effecting the redemption (singly, a
"depositary"). The deposit shall be accompanied by irrevocable
instructions authorizing the depositary to (a) deliver in the
Corporation's name, place and stead the notice of redemption, or
to complete the delivery if previously commenced, and (b) pay on
or after the date fixed for redemption to the holders of the
shares being redeemed the redemption price of the shares on
surrender of the certificates representing those shares. From and
after the time of the deposit those shares shall be considered
redeemed. The holders who are entitled to payment for the
redemption of their shares shall be evidenced by a list certified
by the President or Vice President and the Secretary or an
Assistant Secretary of the Corporation. Dividends on the shares
being redeemed shall cease to accrue after the date of
redemption. The deposit shall constitute full payment of the
redemption price to the holders of the shares being redeemed.
Those shares shall no longer be considered outstanding, and the
holders of them shall cease to be shareholders with respect to
those shares. The holders of the shares being redeemed shall have
no rights with respect to the shares except the right to receive
from the depositary (or its successor) payment of the redemption
price of the shares, without interest, on surrender of the
certificates representing those shares. Funds deposited that are
not required for redemption of the shares because of the
conversion of those shares prior to the date fixed for conversion
shall be returned to the Corporation. Funds deposited and
unclaimed at the end of six years shall be repaid to the
Corporation, and any holder of shares of Series A 10% Cumulative
Convertible Preferred Stock called for redemption shall
subsequently look only to the Corporation for payment.
Certificates for Unredeemed Shares
(5) If less than all of the shares of Series A 10% Cumulative
Convertible Preferred Stock are redeemed, the Corporation shall
issue one or more new certificates representing the
unredeemed shares.
No Sinking Fund
(f) The Corporation shall not be obligated to make payments into
or to maintain any sinking fund for shares of the Series A 10%
Cumulative Convertible Preferred Stock.
Conversion Rights
(g) At any time after issuance and prior to the date fixed for
their redemption, the holder of any shares of Series A 10%
Cumulative Convertible Preferred Stock may convert the shares
Series A 10% Cumulative Convertible Preferred Stock into shares
of the Corporation's common stock. Shares of Series A 10%
Cumulative Convertible Preferred Stock shall be convertible on
the following terms:
Conversion Ratio and Conversion Price
(1) On exercise of the option to convert, the holder shall be
entitled to receive 2.2222 shares of Common Stock for each share
of Series A 10% Cumulative Convertible Preferred Stock converted
(the "Conversion Ratio"). The Conversion Ratio is intended to be
the equivalent of a conversion exercise price of $.45 per share
(the "Conversion Price")
Exercise of Conversion Rights
(2) The conversion rights may be exercised at any time from and
after the date of issuance and prior to the close of business on
the day fixed for redemption. The holder of the convertible
shares shall exercise the option to convert by delivering a
written notice electing to convert the shares to common shares
and surrendering the share certificate or certificates for the
shares of Series A 10% Cumulative Convertible Preferred Stock to
be converted to the Corporation's office, the depositary or the
office of the transfer agent for shares of the Corporation's
common stock. The certificates surrendered shall be duly endorsed
or assigned to the Corporation. Conversion of the shares shall be
deemed effective immediately before the close of business on the
date on which the shares are surrendered, which shall be the
conversion date. On the conversion date, or as soon as
practicable after that date, the Corporation shall deliver to the
holder of the shares surrendered, or to another person designated
by the holder in writing, a certificate for the number of full
shares of Common Stock deliverable on the conversion as provided
herein plus a certificate for any fractional share of Common
Stock that is deliverable or an amount of cash instead of the
fractional share as provided below.
Antidilution Provision
(3) The number of shares of Common Stock to be issued as provided
in this Subparagraph shall be adjusted by appropriate amendment
to account for any and all increases or reductions in the number
of outstanding shares of Common Stock that may have accrued since
the date of the first issuance of shares of the Series A 10%
Cumulative Convertible Preferred Stock because of a split, share
dividend, combination, reclassification, merger, consolidation,
other capital change or reorganization or other transaction
affecting the number of outstanding common shares. This
adjustment shall be made to fairly and equitably preserve as far
as reasonably possible the original conversion rights of the
Series A 10% Cumulative Convertible Preferred Stock. If an
adjustment is required, no notice of redemption shall be given
until the amendment and adjustment has been accomplished. On
payment of a dividend, any adjustment made pursuant to this
subparagraph shall become effective immediately after the opening
of business on the day following the record date for the
determination of shareholders entitled to receive the dividend.
In the case of a subdivision, combination, reclassification or
other transaction an adjustment made pursuant to this
subparagraph shall become effective immediately after the opening
of business on the day following the day on which the respective
action becomes effective. Any adjustment required by this
subparagraph shall be made so that the holder of any share of
Series A 10% Cumulative Convertible Preferred Stock subsequently
surrendered for conversion shall be entitled to receive the
number of shares of Common Stock or other securities of the
Corporation that the holder would have owned or been entitled to
receive after occurrence of the corporate action if the share of
Series A 10% Cumulative Convertible Preferred Stock had been
converted immediately before the occurrence of the corporate
action.
Fractional Shares
(4) The Corporation may, but shall not be required to, deliver
fractional shares of Common Stock on conversion of shares of the
Series A 10% Cumulative Convertible Preferred Stock. Instead of
any fractional share of Common Stock that would otherwise be
deliverable on conversion, the Corporation may pay an amount in
cash equal to the current market value of the fractional share,
computed on the basis of the market price on the last business
day before the conversion date, as defined above. For purposes of
this Subparagraph, the "market price" on any business day shall
be the closing bid price for each share of Common Stock in the
over-the counter market as furnished by a member of the National
Association of Securities Dealers selected from time to time by
the Corporation for that purpose or, if the shares of Common
Stock are listed or admitted to trading on any national
securities exchange, the reported closing price for each share of
Common Stock on that exchange.
Reservation of Common Shares for Conversion
(5) The Corporation shall at all times reserve and keep available
from its authorized but unissued common shares solely for
effecting conversion of its Series A 10% Cumulative Convertible
Preferred Stock the full number of shares of Common Stock
deliverable on conversion of all Series A 10% Cumulative
Convertible Preferred Stock.
Merger or Sale of Corporate Assets
(6) On any capital reorganization, reclassification of the
shares, consolidation, merger, or sale or conveyance of all or
substantially all of the assets of the Corporation to another
corporation, each share of Series A 10% Cumulative Convertible
Preferred Stock shall be convertible into the number of shares or
other securities or property to which the number of shares of
Common Stock that would have been deliverable on conversion of
the shares of Series A 10% Cumulative Convertible Preferred Stock
immediately before the corporate action, would be entitled.
Appropriate adjustment, as determined by the Board of Directors,
shall be made with respect to the subsequent rights and interests
of the holders of the shares of Series A 10% Cumulative
Convertible Preferred Stock so that all provisions of this
Subparagraph shall remain applicable as much as is practicable in
relation to any shares or other property subsequently deliverable
on conversion of the shares of Series A 10% Cumulative
Convertible Preferred Stock.
Further Adjustments to the Conversion Ratio
(7) The Conversion Ratio shall be further adjusted periodically
as follows: If any shares of Series A 10% Cumulative Convertible
Preferred Stock are outstanding and the Corporation issues
securities (including evidences of indebtedness) or rights,
options or warrants (excluding up to a maximum of 5% of the
Corporation's outstanding shares if issued under the
Corporation's Employee Stock Purchase Plan or 1999 Stock
Incentive Plan) that entitle the holder(s) thereof to convert
into, exchange for or purchase shares of Common Stock at a price
that is less than the Conversion Price in effect on the date of
issuance of such securities, rights, options or warrants, the
Conversion Ratio in effect shall be adjusted as of the day of
such issuance as follows. The Conversion Ratio in effect on the
date of issuance of such securities, rights, options or warrants
shall be multiplied by a fraction the numerator of which shall be
the product of multiplying (i) the sum of the number of shares of
Common Stock outstanding on that issuance date and the number of
shares issuable on exercise of all then outstanding shares of
Series A 10% Cumulative Convertible Preferred Stock by (ii) the
Conversion Price in effect on that date and the denominator of
which shall be the sum of (i) multiplying the number of shares of
Common Stock outstanding on that issuance date by the Conversion
Price in effect on that date and (ii) multiplying the number of
shares issuable on exercise of the securities, rights, options or
warrants so issued by the conversion, exchange or purchase price
applicable to such securities, rights, options or warrants. To
the extent that the securities, rights, options or warrants are
not converted, exchanged or exercised before they expire, the
Conversion Ratio shall be readjusted as of the close of business
on the applicable expiration date to the Conversion Ratio that
would then be in effect based on the number of shares of Common
Stock actually delivered on conversion, exchange or exercise of
the securities, rights, options or warrants. Anything herein to
the contrary notwithstanding, the Board of Directors of the
Corporation shall be authorized to make such interpretations of
or adjustments to the foregoing as the Board of Directors shall
in good faith determine to be necessary or desirable to give
effect to the foregoing.
No Adjustment When Same Action Taken for Series A 10% Cumulative
Convertible Preferred Stock
(8) No adjustment in the Conversion Ratio for shares of Series A
10% Cumulative Convertible Preferred Stock shall be made if, at
the same time that the Corporation takes an action that would
otherwise require adjustment under this subparagraph (g), the
Corporation takes the same action with respect to the shares of
Series A 10% Cumulative Convertible Preferred Stock in the same
proportion as if each share of Series A 10% Cumulative
Convertible Preferred Stock had been converted (i) at the then
applicable Conversion Ratio immediately before the date of such
action or (ii) immediately before the occurrence of the
subdivision, combination, or reclassification.
Adjustments Only as Provided
(9) Except as otherwise provided herein, no adjustment in the
Conversion Ratio shall be made because of the issuance of shares
of Common Stock, the issuance of any securities convertible into
or exchangeable for shares of Common Stock, the issuance of any
securities carrying the right to purchase any shares of Common
Stock or securities convertible into or exchangeable for those
shares, or any other reason.
Minimum Adjustment
(10) No adjustment in the Conversion Ratio shall be required
unless the adjustment requires an increase or decrease of at
least one percent (1%) of the Conversion Ratio. However, any
adjustments that are not required to be made because of the
preceding sentence shall be carried forward and taken into
account in any subsequent adjustment. All calculations relating
to fractional shares made pursuant to this subparagraph (g) shall
be made to the nearest hundredth of a share.
Statements and Notification of Adjustments
(11) As soon as possible after the Conversion Ratio is adjusted,
the Corporation shall maintain at its office and shall file with
its transfer agent for shares of its Common Stock a statement,
signed by the President and the Secretary or Assistant Secretary
of the Corporation, detailing the facts requiring the adjustment
and specifying the Conversion Ratio after the adjustment. The
transfer agent shall be under no duty or responsibility
concerning the statement except to exhibit it to any holder of
shares of Series A 10% Cumulative Convertible Preferred Stock
desiring to inspect it. In addition, for adjustments made while
any shares of Series A 10% Cumulative Convertible Preferred Stock
are outstanding, the Corporation shall state that an adjustment
has been made and shall give the adjusted Conversion Ratio in the
next annual report to the shareholders. The annual report shall
be mailed to all holders of record of Series A 10% Cumulative
Convertible Preferred Stock on the record date used for mailing
the annual report to holders of shares of Common Stock.
Notice of Corporate Action and Record Date
(12) In addition to any other notice required herein, the
Corporation shall cause to be mailed to the transfer agent for
shares of the Common Stock and to the holders of record of the
outstanding shares of Series A 10% Cumulative Convertible
Preferred Stock, a notice of the taking of a record if the
Corporation takes a record of the holders of its Common Stock for
the following purposes: (i) to entitle them to receive a dividend
or any other distribution payable other than in cash out of
current or retained earnings; (ii) to entitle them to subscribe
for or purchase shares of any class or receive any other rights;
(iii) to effect any merger, consolidation, or reorganization of
the Corporation; (iv) to reclassify its shares other than by
subdivision, combination, or alteration of the par value of the
shares of Common Stock outstanding; (v) to transfer all or
substantially all of its assets; or (vi) to take any other action
that would require an adjustment to the conversion ration under
this subparagraph (g). The notice shall state the date on which
the record is to be taken, the purpose for which the record is
taken, the date on which the respective corporate action is to be
effective, and fix the date by which holders of record of the
shares of Common Stock shall be entitled to exchange their shares
for securities or other property deliverable on the occurrence of
the respective corporate action. The notice shall be mailed at
least thirty (30) days before any of the dates that are required
to be specified in the notice. The Corporation shall additionally
mail a notice of all shareholder meetings and any accompanying
proxy statement to the holders of Series A 10% Cumulative
Convertible Preferred Stock at the same time the notice and proxy
statement is mailed to the holders of Common Stock. If any action
is taken by means of consent, notice of that action by consent
shall be sent to the holders of Series A 10% Cumulative
Convertible Preferred Stock at least thirty (30) days before the
effective date of the consent. Failure to give or receive any
notice required by this subparagraph, or any defect in a notice,
shall not affect the legality or validity of the corporate
action. However, the failure or defect shall not affect the
rights of the holders of Series A 10% Cumulative Convertible
Preferred Stock to obtain an appropriate remedy to account for
the failure or defect.
Voting Rights
(h) The holders of Series A 10% Cumulative Convertible Preferred
Stock shall have no voting rights except as otherwise may be
required by the New Jersey Business Corporation Act.
One Vote and Class Voting
(i) On any matter on which the holders of the shares of the
Series A 10% Cumulative Convertible Preferred Stock shall be
entitled to vote, they shall be entitled to one vote for each
share held. The holders of the shares of the Series A 10%
Cumulative Convertible Preferred Stock shall vote only as a
separate class; their votes shall not be counted together with
those of the holders of any other class or series of shares of
the Corporation.
16. The effective date of this Certificate shall be May 5, 2005.
Dated this 6th day of May, 2005.
DYNASIL CORPORATION OF AMERICA
By
Name: Craig T. Dunham
Title: President
CERTIFICATE REQUIRED TO BE FILED WITH THE
RESTATED CERTIFICATE of INCORPORATION
Pursuant to N.J.S.A.14A:9-5 (5), the undersigned corporation
hereby executes the following certificate:
1. Name of Corporation: DYNASIL CORPORATION OF AMERICA
2. Restated Certificate of Incorporation was adopted on the 26th
day of April, 2005.
3. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the
Certificate of Incorporation of this corporation as heretofore
amended or supplemented and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of
Incorporation.
Dated this 6th day of May, 2005.
DYNASIL CORPORATION OF AMERICA
By /s/ Craig T. Dunham
Name: Craig T. Dunham
Title: President