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EXHIBIT 4.4
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 Class B Preferred Stock of the
Corporation.
FOURTH: To accomplish the foregoing,
(i) Paragraph D of Article FOURTH of the Certificate of
Incorporation of the Corporation is amended to add a new Section 5 thereof to
read in full as follows:
"5. Class B Series 4 Preferred Stock:
1. Designation. The Corporation has authorized the creation of a series of
Class B Preferred Stock to be designated "Class B Series 4 Convertible
Preferred Stock" (the "Series 4 Preferred Stock").
2. Number of Shares; Par Value. The number of shares constituting the Series
4 Preferred Stock shall be fixed at 200. The Series 4 Preferred Stock shall
have a par value of $0.01 per share. The Series 4 Preferred Stock may be
issued only to Crescent International Ltd., or an affiliate thereof.
3. Rank. The shares of Series 4 Preferred Stock shall, with respect to the
distribution of assets on liquidation, dissolution or winding up of the
Corporation, rank (i) senior and prior to the common stock, $.001 par value
(the "Common Stock"), of the Corporation and any other class or series of
capital stock of the Corporation hereafter issued, the terms of which
specifically provide that shares of such class or series shall rank junior to
shares of Series 4 Preferred Stock (collectively, the "Junior Securities"),
(ii) on parity with any other class or series of capital stock of the
Corporation hereafter issued, the terms of which specifically provide that
shares of such class or series shall rank on parity with the shares of Series
4 Preferred Stock (collectively, the "Parity Securities"), and (iii) junior to
the Class A Preferred Stock and any other class or series of capital stock of
the Corporation hereafter issued, the terms of which specifically provide that
shares of such class or series shall rank senior to shares of Series 4
Preferred Stock (collectively, the "Senior Securities").
4. Voting Rights. The holders of shares of Series 4 Preferred Stock shall not
be entitled to any voting rights other than those provided by law. However, so
long as any shares of Series 4 Preferred Stock are
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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 4 Preferred Stock then outstanding, (a) alter or change adversely
the absolute or relative powers, preferences or rights given to the Series 4
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 4 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 4
Preferred Stock, (e) increase the authorized number of shares of Series 4
Preferred Stock or (f) enter into any agreement with respect to the foregoing.
5. Dividends. Subject to the prior rights of the Senior Securities with
respect to dividends, the holders of shares of Series 4 Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available therefor, before any divided is paid on any Junior
Securities, yearly dividends at a fixed rate of 8.0% per annum, payable in
cash in quarterly installments on March 1, June 1, September 1, and December 1
of each calendar year, beginning on December 1, 2000; provided, however, that
the Company shall be required to pay such dividends to the holders of shares
of Series 4 Preferred Stock only if the Corporation fails to fulfill its
obligation under Sections 7 and 8 hereof to deliver certificates representing
shares of Common Stock upon redemption or conversion of shares of Series 4
Preferred Stock by the holders thereof. Such dividends, if due, shall be
payable on all shares of Series 4 Preferred Stock, other than such shares
which have previously and timely been converted or redeemed in accordance with
the provisions of Sections 7 and 8 hereof, and shall accrue from October 30,
2000 until the applicable Redemption Date or Conversion Date (as such terms
are defined below).
6. Liquidation.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, before any
distribution or payment shall be made to the holders of outstanding Junior
Securities, including, but not limited to, the Common Stock, the holders of
outstanding shares of Series 4 Preferred Stock shall be entitled to receive,
out of the assets of the Corporation at the time legally available therefor,
in exchange for their shares of Series 4 Preferred Stock an amount in cash
equal to $10,000.00 per share of Series 4 Preferred Stock, together with all
accrued but unpaid dividends thereon, whether declared or not, on a pari passu
basis with the rights of the holders of any Parity Securities; provided,
however, that the holders of the Series 4 Preferred Stock and any outstanding
Parity Securities shall not be entitled to receive such preferential
liquidation payments until the preferential liquidation payments on all
outstanding Senior Securities have been paid in full. If, upon any such
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, the assets of the Corporation available therefor shall be
insufficient to permit the payment in full to the holders of outstanding
shares of Series 4 Preferred Stock of the preferential liquidation amounts to
which they are then entitled pursuant to the provisions of this clause (a),
the entire assets of the Corporation thus distributable shall be distributed
among the holders of outstanding shares of Series 4 Preferred Stock and any
Parity Securities ratably, in proportion to the full amounts to which such
holders would otherwise be entitled if such assets were sufficient to permit
payment in full.
(b) Upon any such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, after the payment
in full to the holders of outstanding shares of Series 4 Preferred Stock and
any Parity Securities of the preferential liquidation amounts to which they
are then entitled pursuant to the provisions of clause (a) above, the holders
of outstanding shares of Series 4 Preferred Stock shall not be entitled to
participate in any further distributions made to the holders of the Common
Stock or any other class of Senior Securities or Junior Securities.
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(c) At the option of the holders of a majority of the issued and
outstanding Series 4 Preferred Stock, the sale of all or substantially all of
the assets of the Corporation or the merger of the Corporation with or into
another corporation shall be deemed to be a dissolution, liquidation or
winding up of the Corporation.
7. Redemption.
(a) At any time after the second anniversary of the date of
issuance of the shares of Series 4 Preferred Stock, any or all of the
outstanding shares of Series 4 Preferred Stock shall, upon the written request
of the holders of a majority of the issued and outstanding Series 4 Preferred
Stock, be subject to redemption by the Corporation on the date set forth in
such written request for redemption (the "Redemption Date"), for either, at
the option of the Corporation, (i) a purchase price payable in cash equal to
$12,000.00 per share or (ii) such number of shares of Common Stock obtained
from dividing $12,000.00 by the lower of (x) $0.82 and (y) 92% of the average
of the lowest three consecutive Bid Prices (as defined below), of the Common
Stock during the 22 Trading Day (as defined below) period immediately
preceding the Redemption Date (such amount determined in accordance with (i)
or (ii) is hereinafter referred to the "Redemption Amount"). If within seven
(7) calendar days after the date due, any portion of the Redemption Amount
shall not be paid by the Corporation or the Corporation fails to deliver
certificates representing shares of Common Stock issuable to the holders of
Series 4 Preferred Stock in accordance with this paragraph (a), liquidated
damages shall accrue thereon at the rate of 2% per month until the Redemption
Amount plus all such liquidated damages is paid in full (which amount shall
not constitute a penalty). The term "Bid Price" shall mean the closing bid
price of the Common Stock as reported by Bloomberg L.P. The term "Trading Day"
shall mean any day during which the Nasdaq National Market, or such other
principal trading exchange or market for the Common Stock, shall be open for
business.
(b) In addition to any other rights available to the holder, if
the Corporation fails to deliver to the holder such certificate or
certificates pursuant to paragraph (a) above within seven (7) calendar days
after the Redemption Date, and after such period the holder purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver to the
satisfaction of a sale by such holder of the shares underlying the Series 4
Preferred Stock which the holder anticipated receiving upon redemption in
accordance with this Section 7 (a "Redemption Buy-In"), then the Corporation
shall pay in cash to the holder (in addition to any remedies available to or
elected by the holder) the amount by which (A) the holder's total purchase
price (including brokerage commissions, if any) for the shares of Common Stock
purchased for a Redemption Buy-In exceeds (B) the aggregate Redemption Amount
for the number of shares of Common Stock in the Redemption Buy-In for which
such redemption was not timely honored. For example, if the holder purchases
shares of Common Stock having a total purchase price of $11,000 to cover a
Redemption Buy-In with respect to an attempted redemption of $10,000 aggregate
Redemption Amount for the number of shares of Common Stock in the Redemption
Buy-In, the Corporation shall be required to pay the holder $1,000. The holder
shall provide the Corporation written notice indicating the amounts payable to
the holder in respect of the Redemption Buy-In.
(c) From and after the Redemption Date, unless default shall be
made by the Corporation on the Redemption Date in providing funds or shares of
Common Stock for the payment of the Redemption Amount payable, all rights of
the holders of the shares of Series 4 Preferred Stock surrendered for
redemption, except the right to receive the Redemption Amount in respect of
such shares, shall cease and terminate. The redemption of the shares of Series
4 Preferred Stock upon the Redemption Date shall take place at the principal
place of business of the Corporation. On the Redemption Date, the Corporation
shall tender the Redemption Amount by check, subject to collection, or
delivery of shares of
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Common Stock, against receipt of the certificate or certificates representing
the shares of Series 4 Preferred Stock being redeemed.
(d) At no time may the Holder elect to redeem shares of Series 4
Preferred Stock such that the number of shares of Common Stock to be received
pursuant to such redemption aggregated with all other shares of Common Stock
owned by the Series 4 Preferred Stock holder beneficially or deemed
beneficially owned by the Series 4 Preferred Stock holder would result in the
Series 4 Preferred Stock holder owning more than 9.9% of all such Common Stock
as would be outstanding on such Redemption Date, as determined in accordance
with Section 13(d) of the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (the "Exchange Act"). As
of any date prior to the Redemption Date, the aggregate number of shares of
Common Stock for which the Preferred Stock may be redeemed, together with all
other shares of Common Stock then beneficially owned (as such term is defined
in Rule 13(d) under the Exchange Act) by such Series 4 Preferred holder and
its affiliates, shall not exceed 9.9% of the total outstanding shares of
Common Stock as of such date.
8. Conversion.
(a) Subject to the provision for adjustment set forth below,
each share of the Series 4 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, the "Conversion Ratio," determined as of
any date, shall equal the number of shares of Common Stock into which one
share of Series 4 Preferred Stock is convertible pursuant to this Section 8,
which shall be determined by dividing $10,000.00 by the then effective
Conversion Price (as defined below). The "Conversion Price" shall be the lower
of (i) $0.82 and (ii) 92% of the average of the lowest three consecutive Bid
Prices during the 22 Trading Day period immediately preceding the date of
conversion (the "Conversion Date") as set forth in the applicable Conversion
Notice (as defined below). The Conversion Ratio shall be subject to adjustment
as provided in Section 8(e).
(b) At no time may the holder of the Series 4 Preferred Stock
exercise any conversion rights pursuant to this Section 8 such that the number
of shares of Common Stock to be received pursuant to such exercise aggregated
with all other shares of Common Stock owned by the Series 4 Preferred Stock
holder beneficially or deemed beneficially owned by the Series 4 Preferred
Stock holder would result in the Series 4 Preferred Stock holder owning more
than 9.9% of all such Common Stock as would be outstanding on such Conversion
Date, as determined in accordance with Section 13(d) of the Exchange Act. As
of any date prior to the Conversion Date, the aggregate number of shares of
Common Stock into which the Preferred Stock may be converted, together with
all other shares of Common Stock then beneficially owned (as such term is
defined in Rule 13(d) under the Exchange Act) by such Series 4 Preferred
holder and its affiliates, shall not exceed 9.9% of the total outstanding
shares of Common Stock as of such date.
(c) The Corporation shall at all times reserve and keep
available for issuance upon the conversion of Series 4 Preferred Stock, free
from any preemptive rights or any other actual contingent purchase rights of
persons other than the holders of Series 4 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 4 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 4 Preferred Stock.
The Corporation covenants that all shares of Common Stock that
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shall be so issuable shall, upon issue, be duly and validly authorized, fully
paid, nonassessable and freely tradeable.
(d) Mechanics of Conversion.
(i) Conversion of Series 4 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 4 Preferred Stock to be
converted, accompanied by a written notice in a form agreed to by the
Corporation and the holders of Series 4 Preferred Stock (the "Conversion
Notice"), stating that such holder elects to convert all or a specified
portion of such Series 4 Preferred Stock in accordance with the provisions of
this Section 8 and specifying the name or names in which such holder wishes
the certificate or certificates for shares of Common Stock to be issued and
the address or addresses to which such holder wishes such certificate(s) to be
delivered. Any Conversion Notice may be delivered to the Corporation via
facsimile, and upon receipt of a Conversion Notice the Corporation will
deliver written acknowledgement thereof via facsimile to the holders of Series
4 Preferred Stock so electing to convert shares of Series 4 Preferred Stock.
The Corporation shall pay the issue and transfer taxes that may be payable in
respect of any issuance or delivery of shares of Common Stock on conversion of
Series 4 Preferred Stock pursuant hereto. As promptly as practicable, and in
any event within three Trading Days after the surrender of such certificates
representing Series 4 Preferred Stock and the receipt of such notice relating
thereto, the Corporation shall deliver or cause to be delivered to the address
stated in the Conversion Notice (i) certificates representing the number of
validly issued, fully paid and nonassessable shares of Common Stock to which
the holder of Series 4 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 4 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 such notice is given so that the rights of the holder
thereof as to Series 4 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.
(ii) If the Corporation fails to deliver to the holder such
certificate or certificates pursuant to this Section 8 on or prior to the
third Trading Day after the date the holder surrenders to the Corporation the
certificates to be converted (the "Delivery Date"), the Corporation shall, at
the holder's option, either (1) redeem from funds legally available therefor
at the time of such redemption, such number of shares of Preferred Stock then
held by such holder, as requested by such holder and pay in cash all accrued
but unpaid dividends on account of all of the Series 4 Preferred Stock or (2)
pay to such holder liquidated damages on the Redemption Price (as such term is
defined below) of 2% per month in cash to such holder, occurring from such
third Trading Day following the Delivery Date until the date certificates are
delivered by the Corporation to such holder. If such holder opts to redeem any
number of shares of Preferred Stock pursuant to this Section 8(d)(ii), then
the Corporation shall immediately redeem, from funds legally available
therefor at the time of such redemption, such number of shares of Series 4
Preferred Stock then held by such holder, as requested by such holder. The
redemption price (the "Redemption Price") shall be equal to the sum of (A) the
aggregate of all accrued but unpaid dividends, plus (B) the number of shares
of Series 4 Preferred Stock then held by such holder multiplied by (1) the
average Bid Price of the Corporation's Common Stock for the five Trading Days
immediately preceding the Delivery Date multiplied by (2) the Conversion Ratio
calculated on the Delivery Date. If the holder has requested that the
Corporation redeem shares of Series 4 Preferred Stock pursuant to this Section
8(d)(ii) and the Corporation fails for any reason to pay the Redemption Price
referenced above within seven days after such notice is deemed delivered
pursuant to Section 8(d)(ii), the Corporation will
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pay liquidated damages on the Redemption Price at a rate of 2% per month in
cash to such holder, accruing from such seventh day until the Redemption Price
and any accrued liquidated damages thereon is paid in full. Nothing herein
shall limit a holder's right to pursue actual damages for the Corporation's
failure to deliver certificates representing shares of Common Stock upon
conversion within the period specified herein (including, without limitation,
damages relating to any purchase of shares of Common Stock by such holder to
make delivery on a sale effected in anticipation of receiving certificates
representing shares of Common Stock upon conversion, such damages to be in an
amount equal to (A) the aggregate amount paid by such holder for the shares of
Common Stock so purchased minus (B) the aggregate amount of net proceeds, if
any, received by such holder from the sale of the shares of Common Stock
issued by the Corporation pursuant to such conversion), and such holder shall
have the right to pursue all remedies available to it at law or in equity
(including, without limitation, a decree of specific performance and/or
injunctive relief).
(iii) In addition to any other rights available to the holder,
if the Corporation fails to deliver to the holder such certificate or
certificates pursuant to Section 8(d)(ii) by the Delivery Date and after the
Delivery Date the holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver to the satisfaction of a sale by
such holder of the shares underlying the Series 4 Preferred Stock which the
holder anticipated receiving on the Delivery Date upon such conversion (a
"Conversion Buy-In"), then the Corporation shall pay in cash to the holder (in
addition to any remedies available to or elected by the holder) the amount by
which (A) the holder's total purchase price (including brokerage commissions,
if any) for the shares of Common Stock purchased for a Conversion Buy-In
exceeds (B) the aggregate Conversion Price for the number of shares of Common
Stock in the Conversion Buy-In for which such conversion was not timely
honored. For example, if the holder purchases shares of Common Stock having a
total purchase price of $11,000 to cover a Conversion Buy-In with respect to
an attempted conversion of $10,000 aggregate Conversion Price for the number
of shares of Common Stock in the Conversion Buy-In, the Corporation shall be
required to pay the holder $1,000. The holder shall provide the Corporation
written notice indicating the amounts payable to the holder in respect of the
Conversion Buy-In.
(e) Adjustments.
(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 4 Preferred Stock under this Section 8, 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 4 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 4 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 8(e) 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) Except with respect to Excluded Securities (as defined
below), in case the Corporation shall issue any shares of Common Stock or
Common Stock Equivalents (as defined below)
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after a Conversion Date at a price per share (or having a conversion or
exercise price per share) of less than the Conversion Price per share (the
"Adjusted Conversion Price"), in each such case the Conversion Price as in
effect immediately prior thereto shall be reduced (but not increased) to the
Adjusted Conversion Price and the Conversion Ratio shall be recalculated and
increased (but not decreased) by dividing $10,000.00 by the Adjusted
Conversion Price. Any adjustment made pursuant to this clause (ii) shall be
made on the next business day following the date on which any such issuance is
made and shall be effective retroactively to the close of business on the date
of such issuance. For purposes of this clause (ii), the consideration
receivable by the Corporation in connection with the issuance of additional
shares of Common Stock or of Common Stock Equivalents since the Conversion
Date shall be deemed to be equal to (X) in the case the consideration received
by the Corporation is cash, the sum of the aggregate offering price (before
deduction of underwriting discounts or commissions and expenses payable to
third parties, if any) of all such Common Stock and/or Common Stock
Equivalents plus the minimum aggregate amount, if any, payable upon
conversion, exchange or exercise of any such Common Stock Equivalents, and (Y)
in the case the consideration received by the Corporation is other than cash,
the fair market value of the consideration received by the Corporation as
determined by the good faith judgment of the Board of Directors of the
Corporation provided, however, that in the event the holders of a majority of
the issued and outstanding shares of Series 4 Preferred Stock disagree in good
faith with the determination of the Board of Directors of the Corporation,
such fair market value shall be determined by a nationally recognized or major
regional investment banking firm or firm of independent certified public
accountants of recognized standing (an "Appraiser") selected in good faith by
such holders; and provided, further, that the Corporation, after receipt of
the determination by such Appraiser shall have the right to select in good
faith an additional Appraiser meeting the same qualifications, in which case
the fair market value shall be equal to the average of the determinations by
each such Appraiser. Such adjustment shall be made whenever any such
distribution is made and shall become effective immediately after the record
date mentioned above. The issuance or reissuance of any shares of Common Stock
or Common Stock Equivalents (whether treasury shares or newly issued shares)
pursuant to a dividend or distribution on, or subdivision, combination or
reclassification of, the outstanding shares of Common Stock requiring an
adjustment in the Conversion Price and Conversion Ratio pursuant to this
clause (ii) shall not be deemed to constitute an issuance of Common Stock or
Common Stock Equivalents by the Corporation to which clause (i) of this
Section 8(d) applies. Upon the expiration or termination of any unconverted,
unexchanged or unexercised Common Stock Equivalents for which an adjustment
has been made pursuant to this clause (ii), the adjustments shall forthwith be
reversed to effect such Conversion Ratio as would have been in effect at the
time of such expiration or termination had such Common Stock Equivalents, to
the extent outstanding immediately prior to such expiration or termination,
had never been issued. As used herein, "Excluded Securities" shall mean: (i)
shares of Common Stock issuable upon conversion of the Series 4 Preferred
Stock; (ii) shares of Common Stock issuable or issued to employees or
directors of or consultants to the Corporation pursuant to the Management
Option Plan (as hereinafter defined); (iii) shares of Common Stock issuable
upon conversion of any Common Stock Equivalents outstanding on the Conversion
Date, or (iv) Common Stock issued upon the conversion or exercise of Common
Stock Equivalents issued after the Conversion Date as to which an adjustment
to the Conversion Ratio has been made pursuant to this clause (e) upon the
issuance of such Common Stock Equivalents. As used herein, "Common Stock
Equivalents" shall mean securities convertible into, or exchangeable or
exercisable for, shares of Common Stock of the Corporation. As used herein,
the "Management Option Plan" shall mean the Corporation's 1992 Stock Option
Plan, as amended.
(iii) 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
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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.
(f) Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of shares of the Series 4 Preferred Stock. If
any conversion of any shares of Series 4 Preferred Stock would create a
fractional share of Common Stock, such fractional share shall be disregarded
and the number of shares of Common Stock issuable upon conversion shall be the
next higher whole number of shares
9. Notice of Adjustment. Upon any adjustment of the Conversion Price and the
Conversion Ratio then in effect pursuant to the provisions of Section 8, then,
and in each such case, the Corporation shall promptly deliver to each of the
holders of Series 4 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 4 Preferred Stock may be given in advance."
SIXTH: The foregoing Amendment of the Certificate of Incorporation
of the Corporation was authorized by unanimous consent of the Board of
Directors of the Corporation.
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Signed on October __, 2000
-----------------------------------
Darby S. Macfarlane
Chairperson of the Board
and Chief Executive Officer
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