<PAGE> 1
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Orion Acquisition Corp. II
(Exact name of registrant as specified in its charter)
Delaware 13-3863260
(State of incorporation or organization) (I.R.S. Employer Identification No.)
1430 Broadway, 13th Floor, New York, New York 10018
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so registered Name of each exchange on which
each class is to be registered
None.
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
(Title of class)
Redeemable Class A Common Stock Purchase Warrant
(Title of class)
Redeemable Class B Unit Purchase Warrant
(Title of class)
Units, consisting of one share of Common Stock and one Redeemable Class A Common
Stock Purchase Warrant
(Title of class)
<PAGE> 2
FORM 8-A ORION ACQUISITION CORP. II
ITEM 1. Description of Registrant's Securities to be Registered.
Incorporated by reference from Registrant's Amendment No. 1 to Form
SB-2 Registration Statement, dated May 14, 1996, file No. 333-3252.
<TABLE>
<CAPTION>
ITEM 2. Exhibits.
<S> <C>
1.a. Specimen of Common Stock Certificate.
1.b. Specimen of Unit Certificate.
1.c. Specimen of Redeemable Class A Common Stock Purchase Warrant.
1.d. Specimen of Redeemable Class B Unit Purchase Warrant.
2.a. Form of Amended and Restated Certificate of Incorporation of
Registrant.
2.b. Bylaws of Registrant - incorporated by reference from Exhibit 3.2
to Registrant's Form SB-2 Registration Statement, dated April 5, 1996.
</TABLE>
<PAGE> 3
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
ORION ACQUISITION CORP. II
Dated: June 6, 1996 By: /s/ Richard C. Hoffman
------------------------
Richard C. Hoffman
Secretary
<PAGE> 4
EXHIBIT INDEX
Exhibit No. Description
- ------------ -----------
1.A. SPECIMEN OF COMMON STOCK CERTIFICATE
1.B. SPECIMEN OF UNIT CERTIFICATE
1.C. SPECIMEN OF REDEEMABLE CLASS A COMMON STOCK
PURCHASE WARRANT
1.D. SPECIMEN OF REDEEMABLE CLASS B UNIT
PURCHASE WARRANT
2.A. FORM OF AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF REGISTRANT
2.B. BYLAWS OF REGISTRANT-INCORPORATED
BY REFERENCE
<PAGE> 1
Exhibit 1.a.
ORION ACQUISITION CORP. II
Common Stock
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
C- SEE REVERSE SIDE FOR [Shares]
_______ CERTAIN DEFINITIONS ________
CUSIP 685924 10 2
This is to Certify that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE
$0.01, OF
ORION ACQUISITION CORP. II
a corporation incorporated under the laws of the State of Delaware. The shares
evidenced by this certificate are transferable only on the stock transfer books
of ORION ACQUISITION CORP. II by the holder hereof, in person or by attorney,
upon surrender of this certificate properly endorsed.
IN WITNESS WHEREOF ORION ACQUISITION CORP. II has caused this certificate to be
executed by the signatures of its duly authorized officers and has caused its
facsimile seal to be hereunto affixed.
Dated:
Secretary President
Countersigned and Registered:
American Stock Transfer & Trust Company
By Transfer Agent
and Registrar
<PAGE> 2
ORION ACQUISITION CORP. II
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT....Custodian....
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gift to Minors
JT TEN - as joint tenants with right Act...................
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, ____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF
ASSIGNEE.
_______________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________ Shares
represented by the within Certificate, and so hereby irrevocably constitute and
appoint _______________________________________________________________________
Attorney to transfer the said Shares on the books of the within named
corporation with full power of substitution in the premises.
Dated:___________________________________________
In the presence of______________________________________
Signature
______________________________________
Signature
NOTE: THE ABOVE SIGNATURE SHOULD CORRESPOND
EXACTLY WITH THE NAME ON THE FACE OF THIS
STOCKHOLDERS(S) CERTIFICATE AND MUST BE
GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION WITH MEMBERSHIP IN AN APPROVED
SIGNATURE MEDALLION PROGRAM.
<PAGE> 1
Exhibit 1.b.
ORION ACQUISITION CORP. II
Units (comprised of one share of Common Stock and one Redeemable Class
A Warrant entitling the holder thereof to purchase, upon consummation of a
Business Combination, one share of Common Stock at a price of $9.00)
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
U- SEE REVERSE SIDE FOR [Units]
_______ CERTAIN DEFINITIONS _______
CUSIP 685924 20 1
THIS CERTIFIES THAT
for value received
(the "Registered Holder") is the owner of the number of Units specified above,
transferable only on the books of Orion Acquisition Corp. II (the "Corporation")
by the Registered Holder thereof in person or by his or her duly authorized
attorney, on surrender of this Unit Certificate properly endorsed.
Each Unit consists of one (1) share of the Corporation's common stock, par value
$.01 per share (the "Common Stock"), and one (1) redeemable Class A common stock
purchase warrant (the "Warrants") to purchase one (1) share of Common Stock for
$9.00 per share (subject to adjustment) at any time on or after the consummation
of a Business Combination by the Corporation and before 5:00 P.M. New York time
on May , 2001 (the "Expiration Date"). The terms of the Warrants are governed
by a Warrant Agreement dated as of May 28, 1996 (the "Warrant Agreement")
between the Company and American Stock Transfer & Trust Company, as Warrant
Agent (the "Warrant Agent"), and are subject to the terms and provisions
contained therein, all of which terms and provisions the Registered Holder of
this Unit Certificate consents to by acceptance hereof. Copies of the Warrant
Agreement are on file at the office of the Corporation and are available to any
Registered Holder on written request and without cost. The Warrants shall be
void unless exercised before 5:00 P.M., New York time, on the Expiration Date.
This Certificate is not valid unless countersigned and registered by the
Transfer Agent, Warrant Agent and Registrar of the Corporation.
The Warrants and the shares of Common Stock of the Corporation represented by
this Unit Certificate shall be nondetachable and not separately transferable
until such date as shall be determined by H.J.
Meyers & Co., Inc. (the "Separation Date").
<PAGE> 2
IN WITNESS WHEREOF, the Corporation has caused this Unit Certificate to be duly
executed, manually or by facsimile, by its officers thereunto duly authorized
and a facsimile of its corporate seal to be imprinted hereon.
Dated:
By: By:
Secretary President
Countersigned and Registered:
American Stock Transfer & Trust Company
By Transfer Agent, Warrant Agent
and Registrar
<PAGE> 3
ORION ACQUISITION CORP. II
SEPARATION PROVISIONS
This certificate certifies that for value received, the Registered
Holder hereof is entitled, at and after such time as H.J. Meyers & Co., Inc. may
determine that the Common Stock and the Warrants, which comprise the Units,
shall be separately transferable (the "Separation Date"), to exchange each Unit
represented by this Unit Certificate for Common Stock certificates representing
one share of Common Stock and one Warrant Certificate representing one Warrant
upon surrender of this Unit Certificate to the Transfer Agent at the office of
the Transfer Agent together with any documentation required by such Transfer
Agent.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT....Custodian....
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gift to Minors
JT TEN - as joint tenants with right Act.....................
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, ____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF
ASSIGNEE.
_______________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________ Units
represented by the within Certificate, and so hereby irrevocably constitute and
appoint _______________________________________________________________________
Attorney to transfer the said Shares on the books of the within names
corporation with full power of substitution in the premises.
<PAGE> 4
Dated:________________________________________
___________________________________________________
NOTICE: The above signature should correspond exactly with
the name on the face of this Unit Certificate or with
the name of the assignee appearing in the assignment
form above and must be guaranteed by an eligible
guarantor institution with membership in an approved
Signature Guarantee Medallion Program.
<PAGE> 1
Exhibit 1.c.
ORION ACQUISITION CORP. II
Incorporated Under the Laws of the State of Delaware
No.WA-__ _____ Class A Warrants
CUSIP 685924 11 0
This Warrant Certificate certifies that
or registered assigns, is the registered holder of the number of Class A
Redeemable Unit Purchase Warrants (the "Warrants") set forth above to purchase
initially, at any time from the closing date of the first Business Combination
(as defined in the Warrant Agreement described below), until 5:00 p.m., New York
time on [the fifth anniversary of the effective date of the registration
statement] (the "Expiration Date"), one (1) fully paid and nonassessable share
per Warrant (the "Shares"), of Common Stock, $.01 par value (the "Common
Stock"), of Orion Acquisition Corp. II, a Delaware corporation (the "Company"),
at the exercise price of $9.00 per Share (the "Exercise Price"), upon the
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the warrant agreement dated as of May 28, 1996 (the "Warrant Agreement")
by and among the Company and American Stock Transfer & Trust Company (the
"Transfer Agent"). Copies of the Warrant Agreement are on file at the office of
the Corporation and are available on written request and without cost. Payment
of the Exercise Price shall be made by certified or cashier's check or money
order payable to the order of the Company. No Warrant may be exercised after
5:00 P.M., New York time, on the Expiration Date, at which time all Warrants
evidenced hereby, unless exercised prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the
<PAGE> 2
Company's securities issuable thereupon may, subject to certain conditions, be
adjusted. In such event, the Company will, at the request of the holder issue a
new Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the Warrants;
provided, however, that the failure of the Company to issue such new Warrant
Certificates shall not in any way change, alter, or otherwise impair, the rights
of the holder as set forth in the Warrant Agreement. The Warrant Agreement also
provides that the Warrants are redeemable by the Company upon the occurrence of
certain conditions set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange as provided herein,
without any charge except for any tax or other governmental charge imposed in
connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof; and of any distribution to the holder(s) hereof; and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate this
_____ day of _________, 1996.
[SEAL]
ORION ACQUISITION CORP. II
_________________________
_____________________________ William Remley, President
Richard C. Hoffman, Secretary
<PAGE> 3
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificate.)
FOR VALUE RECEIVED________________
hereby sells, assigns and transfers unto _______________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ______________________
Attorney, to transfer the within Warrant Certificate on the books of Orion
Acquisition Corp. II, with full power of substitution.
Dated:_____________________
Signature____________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed:
_____________________________
NOTE: THE ABOVE SIGNATURE SHOULD CORRESPOND
EXACTLY WITH THE NAME ON THE FACE OF OF
THIS STOCKHOLDER(S) CERTIFICATE AND MUST
BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION WITH MEMBERSHIP IN AN
APPROVED SIGNATURE MEDALLION PROGRAM.
<PAGE> 4
FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase:
________ Shares of Common Stock
and herewith tenders in payment for such securities a certified or cashier's
check or money order payable to the order of Orion Acquisition Corp. II in the
amount of $__________, all in accordance with the terms hereof. The undersigned
requests that a certificate for such securities be registered in the name of
__________________ whose address is _____________________________ and that such
Certificate be delivered to _______________________ whose address is
Dated:___________________
Signature_____________________
(Signature must conform in all
respects to the name of holder as
specified on the face of the Warrant
Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
<PAGE> 1
Exhibit 1.d.
ORION ACQUISITION CORP. II
Incorporated Under the Laws of the State of Delaware
No.WU-l _____ Class B Warrants
CUSIP 685924 12 8
This Warrant Certificate certifies that
or registered assigns, is the registered holder of the number of Class B
Redeemable Unit Purchase Warrants (the "Warrants") set forth above to purchase
initially, at any time from the closing of the first Business Combination (as
defined in the Warrant Agreement described below), until 5:00 p.m., New York
time on the first anniversary of such initial exercise date (the "Expiration
Date"), one unit per Warrant (the "Units"), each Unit consisting of one (1)
fully paid and nonassessable share (the "Shares"), of Common Stock, $.01 par
value (the "Common Stock"), of Orion Acquisition Corp. II, a Delaware
corporation (the "Company"), and one (1) Class A nonredeemable common stock
purchase warrant (the "Class A Warrants") of the Company at the exercise price
of $0.125 per Unit (the "Exercise Price"), upon the surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to the conditions set forth herein and in the warrant
agreement dated as of May 28, 1996 (the "Warrant Agreement") by and among the
Company and American Stock Transfer & Trust Company (the "Transfer Agent").
Copies of the Warrant Agreement are on file at the office of the Corporation and
are available to any Registered Holder on written request and without cost.
Payment of the Exercise Price shall be made by certified or cashier's check or
money order payable to the order of the Company. No Warrant may be exercised
after 5:00 P.M, New York time, on the Expiration Date, at which time all
Warrants evidenced hereby, unless exercised prior thereto, shall thereafter be
void.
Each Class A Warrant entitles the registered holder to purchase one (1)
share of Common Stock at $9.00 per share at the times set forth in the Warrant
Agreement.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
<PAGE> 2
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement. The Warrant Agreement also
provides that the Warrants are redeemable by the Company upon the occurrence of
certain conditions set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange as provided herein,
without any charge except for any tax or other governmental charge imposed in
connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof; and of any distribution to the holder(s) hereof; and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate this
_____ day of _________, 1996.
[SEAL]
ORION ACQUISITION CORP. II
_________________________
William Remley, President
_____________________________
Richard C. Hoffman, Secretary
<PAGE> 3
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificate.)
FOR VALUE RECEIVED________________
hereby sells, assigns and transfers unto _______________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ______________________
Attorney, to transfer the within Warrant Certificate on the books of Orion
Acquisition Corp. II, with full power of substitution.
Dated:_____________________
Signature____________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed:
________________________
NOTE: THE ABOVE SIGNATURE SHOULD CORRESPOND
EXACTLY WITH THE NAME ON THE FACE OF OF
THIS STOCKHOLDER(S) CERTIFICATE AND MUST
BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION WITH MEMBERSHIP IN AN
APPROVED SIGNATURE MEDALLION PROGRAM.
<PAGE> 4
FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase:
________ Units
and herewith tenders in payment for such securities a certified or cashier's
check or money order payable to the order of Orion Acquisition Corp. II in the
amount of $__________, all in accordance with the terms hereof. The undersigned
requests that a certificate for such securities be registered in the name of
__________________ whose address is _____________________________ and that such
Certificate be delivered to _______________________ whose address is
Dated:___________________
Signature_____________________
(Signature must conform in all
respects to the name of holder as
specified on the face of the Warrant
Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
<PAGE> 1
Exhibit 2.a.
RESTATED
CERTIFICATE OF INCORPORATION
OF
ORION ACQUISITION CORP. II
The undersigned, being the duly elected President of Orion Acquisition
Corp. II, a Delaware corporation, does hereby certify as follows:
1. That the Certificate of Incorporation of Orion Acquisition Corp. II,
originally filed on October 19, 1995, as amended by a Certificate of Amendment
Before Payment of Capital, filed on November 17, 1995, as corrected by a
Certificate of Correction of the Certificate of Amendment Before Payment of
Capital, filed on November 27, 1995, as amended by a Certificate of Amendment
Before Payment of Capital, filed on December 15, 1995, is amended and restated
to read as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is
ORION ACQUISITION CORP. II
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is 32 Loockerman
Square, Suite L-100, City of Dover, County of Kent; and the name of the name of
the registered agent of the corporation in the State of Delaware at such address
is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock of which the
Corporation shall have authority to issue is 11,000,000, of which 10,000,000
shall be shares of Common Stock, par value $.01 per share, and 1,000,000 shall
be shares of Preferred Stock, par value $.01 per share. The relative rights,
preferences and limitations of the shares of capital stock shall be as follows:
(a) Common Stock. The Corporation's Common Stock shall be
<PAGE> 2
of one class.
(b) Preferred Stock.
(i) Authority of Board of Directors to Designate Preferred
Stock. Preferred Stock may be issued from time to time in one
or more series, each of such series to have such terms as
stated or expressed herein and in the resolution or
resolutions providing for the issue of such series adopted by
the Board of Directors of the Corporation as hereinafter
provided. Any shares of Preferred Stock which may be redeemed,
purchased or acquired by the Corporation may be reissued
except as otherwise provided herein or by law. Different
series of Preferred Stock shall not be construed to constitute
different classes of shares for the purposes of voting by
classes unless expressly provided for herein or by law.
Authority is hereby expressly granted to the Board of
Directors from time to time to issue the Preferred Stock in
one or more series, and in connection with the creation of any
such series, by resolution or resolutions providing for the
issuance of the shares thereof, to determine and fix such
voting powers, full or limited, or no voting powers, and such
designations, preferences and relative participating, optional
or other special rights, and qualifications, limitations or
restrictions thereof, including without limitation thereof,
dividend rights, conversion rights, redemption privileges, and
liquidation preferences, as shall be stated and expressed in
such resolutions, all to the full extent now or hereafter
permitted by the General Corporation Law of the State of
Delaware. Without limiting the generality of the foregoing,
the resolutions providing for issuance of any series of
Preferred Stock may provide that such series shall be superior
or rank equally or be junior to the Preferred Stock of any
other series to the extent permitted by law.
(ii) Designation of Series A Convertible Preferred Stock. Two
hundred (200) shares of the Preferred Stock shall be
designated as "Series A Convertible Preferred Stock" and shall
have the following rights:
<PAGE> 3
A. Voting. Series A Convertible Stock will not be entitled to
vote with respect to the election of directors or on any other
matter submitted to stockholders, unless required by law or
upon conversion to common stock, as provided below.
B. Conversion Privilege. Each share of the Series A
Convertible Preferred Stock shall be converted into one
thousand shares of the common stock of the Company at the
election of the holder(s) for a period of one year commencing
on the first business day after the completion of a Business
Combination by the corporation, which shall be defined as a
statutory merger, share exchange, purchase of capital stock,
asset acquisition or other business combination with an
operating business, such business not to be limited to any
particular location or industry.
C. Redemption Privilege. The Series A Convertible Preferred
Stock is redeemable at the option of the holder(s) at any
time. The redemption price shall be the price originally paid
to the Corporation for such Series A Convertible Preferred
Stock, as established by the Corporation's Board of Directors.
In the event of a liquidation or dissolution of the
Corporation, the rights of the holders of the Corporation's
Common Stock are subordinate to the rights of the holder(s) of
the Series A Convertible Preferred Stock hereunder to receive
back their original purchase price per share. The Series A
Convertible Preferred Stock shall not otherwise participate in
any liquidation or dissolution of the Corporation or be
entitled to receive any dividend thereon.
FIFTH: The corporation is to have perpetual existence.
SIXTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
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 this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or
<PAGE> 4
of any receiver or receivers appointed for this corporation under the provisions
of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the stockholders of this 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 or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this 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 this corporation, as the case
may be, and also on this corporation.
SEVENTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of Directors.
The number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the manner provided in, the Bylaws.
The phrase "whole Board" and the phrase "total number of directors"
shall be deemed to have the same meaning, to wit, the total number of
directors which the corporation would have if there were no vacancies.
No election of directors need be by written ballot.
2. After the original or other Bylaws of the corporation have
been adopted, amended, or repealed, as the case may be, in accordance
with the provisions of Section 109 of the General Corporation Law of
the State of Delaware, and, after the corporation has received any
payment for any of its stock, the power to adopt, amend, or repeal the
Bylaws of the corporation may be exercised by the Board of Directors of
the corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered terms
pursuant to the provisions of
<PAGE> 5
subsection (d) of Section 141 of the General Corporation Law of the
State of Delaware shall be set forth in an initial Bylaw or in a Bylaw
adopted by the stockholders entitled to vote of the corporation unless
provisions for such classification shall be set forth in this
certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only
one class of stock, each outstanding share shall entitle the holders
thereof to notice of, and the right to vote at, any meeting of
stockholders. Whenever the corporation shall be authorized to issue
more than one class of stock, no outstanding share of any of class of
stock which is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder thereof to the
right to vote at any meeting of stockholders except as the provisions
of paragraph (2) of subsection (b) of Section 242 of the General
Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied
voting power shall entitle the holder thereof to vote upon the increase
or decrease in the number of authorized shares of said class.
EIGHTH: The Corporation will not consummate a Business Combination
unless it is approved by a vote of two-thirds of the shares of the Common Stock
of the Corporation voted by non-affiliated public stockholders (in person or in
proxy).
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by the provisions of paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by the
provisions of Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which
<PAGE> 6
those indemnified may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
ELEVENTH: From time to time any of the provisions of this certificate
of incorporation may be amended, altered, or repealed, and other provisions
authorized by the law of the State of Delaware at the time in force may be added
or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the corporation by this
certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
2. The foregoing Amendment and Restatement of the Certificate of
Incorporation has been duly approved by the Board of Directors and by the
stockholders of the Corporation pursuant to Section 245(c) of the General
Corporation Law of the State of Delaware.
March 25, 1996 ____________________________
William L. Remley, President
Attest: _______________________
Richard C. Hoffman, Secretary
