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EXHIBIT 3.2
CERTIFICATE OF DESIGNATION
OF
SPECIAL SERIES STOCK
OF
FIBERCHEM, INC.
__________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
__________________
FiberChem, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "CORPORATION"), hereby
certifies that the following resolutions were adopted by the Board of Directors
of the Corporation on June 29, 2000 pursuant to authority of the Board of
Directors as required by Section 151 of the General Corporation Law of the State
of Delaware:
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of this Corporation (the "BOARD OF DIRECTORS" or the
"BOARD") in accordance with the provisions of its Certificate of Incorporation,
the Board of Directors hereby authorizes a series of the Corporation's
previously authorized preferred stock, par value $0.01 per share (the "PREFERRED
STOCK"), and hereby states the designation and number of shares, and fixes the
relative rights, preferences, privileges, powers and restrictions thereof as
follows:
Of the total number of shares of Preferred Stock , $.01 par value,
authorized under the corporation's certificate of incorporation, 2,250,000
shares shall be of a series designated as Special Stock.
ARTICLE I
The rights and preferences of the holders of the shares of Special
Stock shall be as set forth in this ARTICLE I. The holders of the shares of
Special Stock shall be entitled to one hundred votes per share voting as a
single class with the common stock, but shall not otherwise be entitled to any
other voting rights except as may be required by law. The Special Stock shall
not be entitled to dividends or to any payment upon liquidation or dissolution
of the corporation and shall not be transferable by the holders thereof, except
that upon any liquidation or dissolution of the corporation the holders of the
Special Stock shall be entitled to receive out of the net proceeds of such
liquidation or dissolution in preference and priority to the holders of the
common stock, but junior to the holders of the corporation's shares of preferred
stock of any class outstanding at the time of first issuance of any of the
shares of Special Stock, a payment equal to $.10 per share. Each share of
Special Stock shall be subject to mandatory redemption
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by the corporation at a redemption price equal to $.001 per share upon the
exercise by the holder of the holder's right to exchange each Class B Share of
Intrex owned by such holder for one share of the corporation's common stock in
accordance with the provisions of the Arrangement Agreement. Each share of
Special Stock shall be subject to optional redemption by the corporation at a
redemption price of $.001 per share at any time when the Class B Shares of
Intrex are subject to optional redemption by Intrex pursuant to Article 27 of
the Articles of Intrex. Any redemption of shares of Special Stock shall be upon
like notice to the holder thereof as provided in Article 27 of the Articles of
Intrex for redemption by Intrex of Intrex Class B Shares.
ARTICLE II
If the provisions of ARTICLE I are not applicable, the rights and
preferences of the holders of the shares of Special Stock shall be as set forth
in this ARTICLE II.
Section 1. Dividends.
(a) Dividend Accruals and Payments. The
Corporation shall not be required to declare or pay a dividend
on the Special Stock, except as set forth in this Section 1.
No cash dividend or other distribution shall be paid, or
declared and set apart for payment, on any share of Common
Stock, unless a cash dividend or other distribution is paid,
or declared and set apart for payment, with respect to each
outstanding share of Special Stock in an amount equal to the
dividend paid or declared on a share of Common Stock
multiplied by the Special Stock Ratio (as hereinafter
defined).
(b) Ratable Allocation of Dividends. If at any
time the Corporation pays less than the total amount of
dividends then accrued and payable with respect to all
outstanding shares of Special Stock, such payment will be
distributed ratably among the holders of such shares of
Special Stock pro rata in proportion to the aggregate accrued
but unpaid dividends on the shares of Special Stock held by
each such holder.
Section 2. Liquidation, Dissolution, or Winding-Up.
In the event of any liquidation, dissolution or
winding-up of the Corporation, whether voluntary or
involuntary, the holders of outstanding shares of Special
Stock shall be entitled to be paid out of the assets of the
Corporation available for distribution to stockholders, before
any payment shall be made to or set aside for the holders of
any other class or series of capital stock ranking on
liquidation junior to the Special Stock, an amount equal to
the greater of: (i) $.10 per share of Special Stock held
(subject to adjustment in proportion to any change in the
Special Stock Ratio), plus all accrued and unpaid dividends on
the Special
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Stock through the date of such liquidation, dissolution or
winding-up; and (ii) such holders' pro rata share of any
assets remaining available for distribution to the holders of
Special Stock and Common Stock after payment of the
liquidation preference applicable to any preferred stock
ranking senior to the Special Stock and the Common Stock upon
such liquidation based on the number of shares of stock held
by each (with each holder of shares of Special Stock being
deemed for such purpose to hold a number of shares of stock
equal to the number of shares of Special Stock owned by such
holder as of the date of such liquidation, dissolution or
winding up of the Corporation multiplied by the Special Stock
Ratio ), plus all accrued and unpaid dividends on the Special
Stock through the date of such liquidation, dissolution or
winding-up (the "Special Stock Liquidation Value"). The Common
Stock and the Special Stock shall rank on liquidation junior
to any shares of preferred stock of any series outstanding
immediately prior to the date of first issuance of the Special
Stock. If upon any liquidation, dissolution or winding-up of
the Corporation, whether voluntary or involuntary, the assets
lawfully available to be distributed to the holders of Special
Stock shall be insufficient to permit payment to such
stockholders of their full applicable Special Stock
Liquidation Value per share, then all of the assets of the
Corporation lawfully available for distribution shall be
distributed pro rata among the holders of shares of Special
Stock in proportion to the number of shares of Special Stock
held by them as of the date of such liquidation, dissolution
or winding-up of the Corporation.
Section 3. Voting Rights.
Except as otherwise expressly provided herein or as
required by applicable law (and not subject to waiver by the
Corporation), the holder of each share of Special Stock shall
be entitled to vote on all matters on which holders of Common
Stock are entitled to vote, including, without limitation, the
election of directors. Each share of Special Stock shall
entitle the holder thereof to such number of votes per share
as shall equal the number of shares of Special Stock owned by
such holder as of the record date for the determination of
stockholders entitled to vote on such matter, or if no record
date is established, at the date such vote is taken or any
written consent of stockholders is solicited, multiplied by
the Special Stock Ratio. Except as otherwise expressly
provided herein or expressly required by applicable law, the
holders of shares of Special Stock and Common Stock,
respectively, shall vote together as a single class on all
matters submitted to a vote or consent of stockholders.
Section 4. Special Stock Ratio and Adjustments.
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(a) Special Stock Ratio. The Special Stock Ratio
initially shall be 100, subject to adjustment as provided in
this Section 4.
(b) Adjustments for Extraordinary Common Stock
Events. Upon the happening of an Extraordinary Common Stock
Event (as defined in Section 4(c) hereof), automatically and
without further action, and simultaneously with the happening
of such Extraordinary Common Stock Event, the Special Stock
Ratio shall be adjusted by multiplying the then effective
Special Stock Ratio by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding
(excluding treasury stock) immediately after such
Extraordinary Common Stock Event, and the denominator of which
shall be the number of shares of Common Stock outstanding
(excluding treasury stock) immediately before such
Extraordinary Common Stock Event.
(c) Extraordinary Common Stock Event. As used
herein, "Extraordinary Common Stock Event" means (i)the
issuance of additional shares of Common Stock as a dividend or
other distribution on outstanding Common Stock , (ii)the
subdivision of outstanding shares of Common Stock into a
greater number of shares of Common Stock, or (iii)the
combination of outstanding shares of Common Stock into a
smaller number of shares of Common Stock.
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IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Designation to be signed by its duly authorized officers on this
27th day of July, 2000.
FIBERCHEM, INC.
By: /s/ Melvin W. Pelley
-----------------------
Name: Melvin W. Pelley
Title: Chief Financial Officer & Secretary
