Contact:
Craig Dunham
Dynasil Corporation of America
Phone: (856) 767-4600
Email: cdunham@Dynasil.com
EXHIBIT 3.01
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF
DYNASIL CORPORATIONOF AMERICA
Pursuant to N.J.S. 14A:7-2(4)
Dated: October 2, 2006
The undersigned corporation, having adopted an amendment to
its certificate of incorporation establishing a new series
of preferred stock, hereby certifies as follows:
1. The name of the corporation is Dynasil Corporation of
America.
2. The following is a copy of the resolution of the board
required by N.J.S. 14A:7-2(3): RESOLVED, that the
corporation's certificate of incorporation be, and it hereby
is, amended by adding a new Article Sixteenth, such Article
Sixteenth to read as shown in Exhibit A annexed hereto,
establishing a new series of preferred stock within the
corporation's Preferred Stock, such series to be designated
Series B 10% Cumulative Convertible Preferred Stock, to
consist of 700,000 shares of stock, and to have the relative
rights, preferences, and limitations set out in Exhibit A.
3. The resolution was duly adopted by the board on September
22, 2006.
4. The corporation's certificate of incorporation, as
amended, is further amended so that the designation and
number of shares of the series acted upon in the annexed
resolution, and the relative rights, preferences and
limitations of that series, are as stated in the resolution.
IN WITNESS WHEREOF, the undersigned corporation has caused
this certificate to be executed on its behalf by its duly
authorized officer as of the date first above written.
DYNASIL CORPORATION OF AMERICA
By:
Craig T. Dunham, President
EXHIBIT A
ARTICLE SIXTEENTH
Series B 10% Cumulative Convertible Preferred Stock
A series of cumulative convertible preferred shares
designated ''Series b 10% Cumulative Convertible Preferred
Stock'' is established. The Series B 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 B 10% Cumulative Convertible Preferred
Stock shall be fully paid and nonassessable. The Series B
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 B 10% Cumulative Convertible Preferred Stock then
outstanding. On redemption, conversion, or other
reacquisition of any of the Series B 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 B 10% Cumulative Convertible Preferred
Stock. The rights, preferences, designations and limitations
of the Series B 10% Cumulative Convertible Preferred Stock
are as follows:
Priority
(a) The Series B 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 shares of the Series A 10% Cumulative
Convertible Preferred Stock.
Dividend Rate and Payment Dates
(b) Holders of shares of Series B 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. Dividends shall be payable quarterly on
the fifth day of April, July, October and January in each
year for the immediately preceding quarterly fiscal period.
The first dividend shall be payable on January 5, 2007.
Priority and Cumulative Rights
(c) Dividends on the Series B 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 B 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 B 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 B 10%
Cumulative Convertible Preferred Stock shall be entitled to
receive for each share of Series B 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 B 10% Cumulative
Convertible Preferred Stock as provided in this
Subparagraph, then the holders of the Series B 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 B 10% Cumulative
Convertible Preferred Stock have been redeemed. Commencing
on and after the second anniversary of their issuance,
shares of Series B 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 B 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 B 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 B 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 B 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 B 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 B 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 B 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 B
10% Cumulative Convertible Preferred Stock may convert the
shares Series B 10% Cumulative Convertible Preferred Stock
into shares of the Corporation's common stock. Shares of
Series B 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 1.333 shares of Common Stock for each
share of Series B 10% Cumulative Convertible Preferred Stock
converted (the "Conversion Ratio"). The Conversion Ratio is
intended to be the equivalent of a conversion exercise price
of $.75 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 B 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 B 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 B 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 B
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 B 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 B 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 B 10%
Cumulative Convertible Preferred Stock the full number of
shares of Common Stock deliverable on conversion of all
Series B 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 B 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 B 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 B 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 B 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 B 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 B 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 B 10%
Cumulative Convertible Preferred Stock
(8) No adjustment in the Conversion Ratio for shares of
Series B 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 B 10% Cumulative Convertible
Preferred Stock in the same proportion as if each share of
Series B 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 B 10%
Cumulative Convertible Preferred Stock desiring to inspect
it. In addition, for adjustments made while any shares of
Series B 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 B
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 B 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 B 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 B 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 B 10% Cumulative Convertible
Preferred Stock to obtain an appropriate remedy to account
for the failure or defect.
Voting Rights
(h) The holders of Series B 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 B 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 B
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.