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EXHIBIT 4.7
Certificate of Amendment of the Certificate of Incorporation
of
CHROMATICS COLOR SCIENCES INTERNATIONAL, INC.
Under Section 805 of the Business Corporation Law
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It is hereby certified that:
First: The name of the corporation (the "Corporation") is
CHROMATICS COLOR SCIENCES INTERNATIONAL, INC.
Second: The Certificate of Incorporation of the Corporation
was filed by the Department of State on March 30, 1984. The Corporation was
formed under the name Chromatics International, Inc.
Third: The Certificate of Incorporation of the Corporation,
as heretofore amended, is hereby further amended to fix the relative rights,
preferences and limitations with respect to the Series 5 Preferred Stock of the
Corporation.
Fourth: To accomplish the foregoing,
Article FOURTH of the Certificate of Incorporation of the
Corporation is amended to add a new Section 6 thereof to read in full as
follows:
"6. Class B Series 5 Preferred Stock:
(1) The Corporation has authorized the creation of a
series of Class B Preferred Stock to be designated "Class B Series 5 Convertible
Preferred Stock" (the "Series 5 Preferred Stock").
(2) The number of shares constituting the Series 5
Preferred Stock shall be fixed at 80,000. The Series 5 Preferred Stock shall
have no par value.
(3) The shares of Series 5 Preferred Stock shall, with
respect to the distribution of assets on liquidation, dissolution or winding up
of the Corporation, rank senior and prior to all classes or series of capital
stock of the Corporation, whether now or hereafter issued.
(4) Dividends shall accrue on the Series 5 Preferred
Stock beginning on April 15, 2002 at a rate of 8% per annum. Such dividends
shall be payable from legally available funds on the last business day of each
calendar year quarter (each, a "Dividend Payment Due
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Date") and shall be cumulative whether or not declared. In the event that any
dividend is not paid in full on any Dividend Payment Due Date, dividends shall
thereafter accrue and be payable at a rate of 11% per annum until all accrued
dividends are paid in full.
(5) The holders of shares of Series 5 Preferred Stock
shall not be entitled to any voting rights other than those provided by law.
However, so long as any shares of Series 5 Preferred Stock are outstanding, the
Corporation shall not and shall cause its subsidiaries not to, without the
affirmative vote of the holders of a majority of the shares of the Series 5
Preferred Stock then outstanding, (a) alter or change adversely the absolute or
relative powers, preferences or rights given to the Series 5 Preferred Stock,
(b) alter or amend this Certificate of Amendment, (c) authorize or create any
class of stock ranking as to dividends or distribution of assets upon a
liquidation or otherwise senior to the Series 5 Preferred Stock, (d) amend its
Certificate of Incorporation, bylaws or other charter documents so as to affect
adversely any rights of any holders of Series 5 Preferred Stock, (e) increase
the authorized number of shares of Series 5 Preferred Stock or (f) enter into
any agreement with respect to the foregoing.
(6) The Series 5 Preferred Stock shall not be subject to
mandatory redemption by the Corporation.
(7) (a) Subject to the provision for adjustment set
forth below, each share of the Series 5 Preferred Stock shall be convertible at
the option of the holder thereof at any time after the date hereof into a number
of shares of Common Stock equal to the then effective Conversion Ratio (as
hereinafter defined). As used herein, "Conversion Ratio," determined as of any
date, shall equal the number of shares of Common Stock into which one share of
Series 5 Preferred Stock is convertible pursuant to this Section 7, which shall
be determined by dividing $100.00 by the then effective Conversion Price (as
defined below). The "Conversion Price" shall be $4.68 per share of Common Stock.
The Conversion Ratio shall be subject to adjustment as provided in Section 7(d).
(b) The Corporation shall at all times reserve and keep
available for issuance upon the conversion of Series 5 Preferred Stock, free
from any preemptive rights or any other actual contingent purchase rights of
persons other than the holders of Series 5 Preferred Stock, such number of
shares of its authorized but unissued shares of Common Stock as will from time
to time be necessary to permit the conversion of all outstanding shares of
Series 5 Preferred Stock, together with all accrued but unpaid dividends
thereon, into shares of Common Stock, and shall take all action required to
increase the authorized number of shares of Common Stock if necessary to permit
the conversion of all outstanding shares of Series 5 Preferred Stock. The
Corporation covenants that all shares of Common Stock that shall be so issuable
shall, upon issue, be duly and validly authorized, fully paid, nonassessable and
freely tradeable.
(c) Conversion of Series 5 Preferred Stock may be
effected by any holder thereof upon the surrender to the Corporation at the
offices of the Corporation of certificates representing Series 5 Preferred Stock
to be converted, accompanied by a written notice stating that such holder elects
to convert all or a specified portion of such Series 5 Preferred Stock in
accordance with the provisions of this Section 7 and specifying the name or
names in which such holder wishes the certificate or certificates for shares of
Common Stock to be issued. The
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Corporation shall pay the issue and transfer taxes that may be payable in
respect of any issue or delivery of shares of Common Stock on conversion of
Series 5 Preferred Stock pursuant hereto. As promptly as practicable, and in any
event within three business days after the surrender of such certificates
representing Series 5 Preferred Stock and the receipt of such notice relating
thereto, the Corporation shall deliver or cause to be delivered (i) certificates
representing the number of validly issued, fully paid and nonassessable shares
of Common Stock to which the holder of Series 5 Preferred Stock being converted
shall be entitled and (ii) if less than all of the shares represented by the
surrendered certificates are being converted, a new certificate representing the
number of shares of Series 5 Preferred Stock which remains outstanding upon such
partial conversion. Such conversion shall be deemed to have been made at the
close of business on the date of giving such notice so that the rights of the
holder thereof as to Series 5 Preferred Stock being converted shall cease except
for the right to receive shares of Common Stock in accordance herewith, and the
persons entitled to receive shares of Common Stock shall be treated for all
purposes as having become the record holder of such shares of Common Stock at
such time.
(d) (i) In the event of any change in the number of
issued and outstanding shares of capital stock of the Corporation by reason of
any stock split, stock dividend, subdivision, merger, consolidation,
recapitalization, combination, conversion or exchange of shares, or any other
change in the corporate or capital structure of the Corporation which would have
the effect of diluting or otherwise adversely affecting the rights and
privileges of the holders of Series 5 Preferred Stock under this Section 7, the
Conversion Ratio and Conversion Price in effect on the effective date thereof
shall be adjusted so that the holder of any shares of Series 5 Preferred Stock
shall be entitled to receive the number and type of shares of Common Stock or
other securities of the Corporation which such holder would have owned or have
been entitled to receive after the happening of any of the events described
above had such shares of Series 5 Preferred Stock been converted into Common
Stock immediately prior to the happening of such event or the record date
therefor. An adjustment made pursuant to this Section 7(d) shall become
effective (x) in the case of any such dividend or distribution to holders of
shares of Common Stock entitled to receive such dividend or distribution, or (y)
in the case of such subdivision, merger, consolidation, recapitalization,
combination, conversion or exchange, at the close of business on the day upon
which such corporate action becomes effective.
(ii) If the Corporation shall set a record date for the
holders of its Common Stock for the purpose of entitling them to receive a
dividend or other distribution and shall thereafter, and before such dividend or
distribution is paid or delivered to stockholders entitled thereto, legally
abandon its plan to pay or deliver such dividend or distribution, then no
adjustment in the Conversion Ratio or the Conversion Price then in effect shall
be made by reason of the taking of such record, and any such adjustment
previously made as a result of the taking of such record shall be reversed.
(d) (i) Unless sooner converted in accordance with
the provisions of this Section 7 the outstanding shares of Series 5 Preferred
Stock shall be subject to involuntary conversion at the option of the
Corporation, at its sole discretion, at any time, for shares of the
Corporation's Common Stock at the Conversion Ratio. The Corporation may
effectuate such
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involuntary conversion on such date (the "Involuntary Conversion Date") provided
that the following conditions have been met:
(A) the average closing bid price of the Common Stock for any
period of at least ten (10) consecutive trading days exceeds
$10.29 per share; and
(B) all of the shares of Common Stock into which the Series 5
Preferred Stock is being converted have been registered under
the Securities Act of 1933, as amended, and such registration
has been declared effective by the Securities and Exchange
Commission, and is effective on such date; and
(C) the Corporation has a sufficient number of authorized shares
of Common Stock reserved for issuance upon full conversion of
the Series 5 Preferred Stock.
(ii) Notice of involuntary conversion of outstanding
shares of Series 5 Preferred Stock shall be sent by or on behalf of the
Corporation, postage prepaid, to the holders of record of outstanding shares of
Series 5 Preferred Stock not less than ten (10) and not more than twenty (20)
days prior to the Involuntary Conversion Date.
(iii) Notice having been so given as provided in clause
(ii) above, from and after the Involuntary Conversion Date, unless default shall
be made by the Corporation on the Involuntary Conversion Date in issuing the
Common Stock issuable upon conversion of the Series 5 Preferred Stock pursuant
to the Conversion Ratio, all rights of the holders of the shares of Series 5
Preferred Stock surrendered for conversion, except the right to receive the
Common Stock in respect of such shares, shall cease and terminate. The
involuntary conversion of the shares of Series 5 Preferred Stock for the Common
Stock upon the Involuntary Conversion Date shall take place at the principal
place of business of the Corporation. On the Involuntary Conversion Date, the
Corporation shall tender such Common Stock against receipt of the certificate or
certificates representing the shares of Series 5 Preferred Stock being
converted.
(8) Upon any adjustment of the Conversion Price and the
Conversion Ratio then in effect pursuant to the provisions of Section 7, then,
and in each such case, the Corporation shall promptly deliver to each of the
holders of Series 5 Preferred Stock a certificate signed by the President or a
Vice President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation setting forth in reasonable detail
the event requiring the adjustment, the method by which such adjustment was
calculated and the Conversion Price and Conversion Ratio then in effect
following such adjustment. Where appropriate, such notice to the holders of
Series 5 Preferred Stock may be given in advance.
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Fifth: The foregoing Amendment of the Certificate of
Incorporation of the Corporation was authorized by unanimous consent of the
Board of Directors of the Corporation.
Signed on November 1, 2000
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Darby S. Macfarlane
Chairperson of the Board
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