SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) July 19, 1996
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Palatin Technologies, Inc.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
0-22686 95-4078884
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(Commission File Number) (IRS Employer Identification Number)
214 Carnegie Center, Suite 100,Princeton, New Jersey 08540
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (609) 520-1911
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
In connection with the consummation on June 25, 1996 of the merger (the
"Merger") of Interfilm Acquisition Corporation ("InSub"), a wholly owned
subsidiary of the registrant, with and into RhoMed Incorporated ("RhoMed")
pursuant to an Agreement and Plan of Reorganization by and among the
registrant, InSub and RhoMed, dated as of April 12, 1996, the registrant
amended its Restated Certificate of Incorporation on July 19, 1996 pursuant
to a Certificate of Amendment (the "Charter Amendment") to its Restated
Certificate of Incorporation filed with the Secretary of State of the State of
Delaware. The Charter Amendment (i) changed the registrant's name from
"Interfilm, Inc." to "Palatin Technologies, Inc.", (ii) increased the total
number of authorized shares of the registrant's common stock, par value $.01
per share (the "Common Stock"), from 10,000,000 to 25,000,000, and (iii)
effected a 1-for-10 reverse split of the Common Stock.
In connection with the filing of the Charter Amendment, the ticker symbol
under which the Common Stock is currently traded on the OTC Electronic
Bulletin Board has been changed from "IFLM" to "PLTN", effective as of July
22, 1996. The registrant also has adopted a new corporate seal and a new form
of stock certificate for the Common Stock.
Effective August 1, 1996, the number of directors on the Board of
Directors of the registrant has, in accordance with the registrant's By-laws,
been set at five, and James O'Brien and Richard Murphy have been appointed to
serve on the Board of Directors until the next annual meeting of stockholders
and until their successors are duly elected and qualified.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
(c) Exhibit 3.1 Restated Certificate of
Incorporation of the Company.
Exhibit 3.2 Amendment to the Restated
Certificate of Incorporation of the
Company, filed on July 19, 1996.
Exhibit 3.3 Amended Certificate of Designation
of Series A Preferred Stock of the
Company, filed on June 24, 1996.
Exhibit 3.4 Amended Certificate of Designation of
Series B Preferred Stock of the Company,
filed on June 24, 1996.
Exhibit 4.1 Specimen form of the Company's
Common Stock certificate.
Exhibit 99.1 Press Release, dated July 22, 1996.
ITEM 8. CHANGE IN FISCAL YEAR.
On July 26, 1996, the registrant's Board of Directors approved the change
in the registrant's fiscal year end from December 31 to June 30. The change
will be effective for the period ended June 30, 1996.
RhoMed, now a wholly-owned subsidiary of the registrant, has a fiscal year
end of August 31. The registrant's Annual Report on Form 10-KSB for the period
ended June 30, 1996 will cover the transition period from September 1, 1995 (the
beginning of RhoMed's fiscal year) to June
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30, 1996, since the Merger will be treated, for accounting purposes, as a
recapitalization of RhoMed with RhoMed as the acquirer (a reverse
acquisition).
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PALATIN TECHNOLOGIES, INC.
By /s/ John J. McDonough
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Name: John J. McDonough
Title: Vice President and
Chief Financial Officer
Date: August 9, 1996
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RESTATED CERTIFICATE OF INCORPORATION
OF
INTERFILM, INC.
INTERFILM, INC., a corporation duly organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
The name under which the Corporation was originally incorporated was Cinedco,
Inc. The original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on November 21, 1986.
1. This Restated Certificate of Incorporation restates and integrates,
but does not amend, the Restated Certificate of Incorporation of the Corporation
to read as set forth herein.
2. Pursuant to Section 245 of the General Corporation Law of the State
of Delaware, the text of the Certificate of Incorporation as heretofore amended
or supplemented is hereby restated to read in full as follows:
ARTICLE I
Name
The name of the Corporation is INTERFILM, INC.
ARTICLE II
Registered Office and Registered Agent
The registered office of the Corporation in the State of Delaware is
located at c/o the Corporation Trust Company, 1209 Orange Street, City of
Wilmington, County of New Castle, State of Delaware, and the registered agent in
charge thereof is The Corporation Trust Company.
ARTICLE III
Corporate Purpose
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 (the "General Corporation Law").
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ARTICLE IV
Capital Stock
Section 1. AUTHORIZED CAPITAL STOCK. The Corporation shall be authorized
to issue two classes of shares of capital stock to be designated, respectively,
"Preferred Stock" and "Common Stock"; the total number of shares of capital
stock which the Corporation shall have the authority to issue is 12,000,000,
comprised of 10,000,000 shares of Common Stock, par value $.01 per share, and
2,000,000 shares of Preferred Stock, par value $.01 per share.
Section 2. ISSUANCE OF PREFERRED STOCK. The Board of Directors is
authorized, subject to limitations prescribed by law and the provisions of this
Article IV, to provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable law of the State
of Delaware, to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, preferences, rights and
privileges of the shares of each such series and the qualifications, limitations
or restrictions thereof.
The authority of the Board of Directors with respect to each such series
shall include, but not be limited to, determination of the following:
(a) The number of shares constituting such series and the distinctive
designation of such series;
(b) The dividend rate on the shares of such series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of such series;
(c) Whether such series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether such series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for adjustment
of the conversion rate in such events as the Board of Directors shall determine;
(e) Whether or not the shares of such series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates;
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(f) Whether such series shall have a sinking fund for the redemption or
purchase of shares of such series, and, if so, the terms and amount of such
sinking fund;
(g) The rights of the shares of such series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the corporation, and the
relative rights of priority, if any, of payment of shares of such series;
(h) Any other relative powers, preferences, rights, privileges,
qualifications, limitations and restrictions of such series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or winding
up of the corporation, the assets available for distribution to holders of
shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
Stock in accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any) payable with respect thereto.
Section 3. NO PREEMPTIVE RIGHTS. No holders of capital stock of the
Corporation shall be entitled to preemptive rights to purchase or subscribe for
any shares of any class of capital stock of the Corporation whether now or
hereafter authorized.
ARTICLE V
Directors
Section 1. ELECTION OF DIRECTORS. Elections of directors of the
Corporation need not be by written ballot, except and to the extent provided in
the By-laws of the Corporation.
Section 2. POWER WITH RESPECT TO BY-LAWS. The directors of the
Corporation shall have the power to adopt, amend or repeal By-laws.
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Section 3. PERSONAL LIABILITY OF DIRECTORS. To the fullest extent
permitted by the General Corporation Law as it now exists and as it may
hereafter be amended, no director of the Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for breach of a
fiduciary duty as a director.
ARTICLE VI
Indemnification of Directors, Officers and Others
(1) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person
seeking indemnification did not act in good faith and in a manner which he or
she reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
(2) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he or she is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection with the
defense or
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settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(3) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections (1) and (2) of this Article
VI, or in defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
(4) Any indemnification under Sections (1) and (2) of this Article VI
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in such Sections (1) and (2).
Such determination shall be made (a) by the Board of Directors of the
Corporation by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (c) by the
stockholders of the Corporation.
(5) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation authorized in this Article VI. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors of the
Corporation deems appropriate.
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(6) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Article VI shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
(7) The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of Section 145 of the General
Corporation Law.
(8) For purposes of this Article VI, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article VI with respect to the
resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
(9) For purposes of this Article VI, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves service by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
VI.
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(10) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VI shall, unless otherwise provided when
authorized or ratified, 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.
ARTICLE VII
Amendment
The Corporation reserves the right to amend, alter, change or repeal any
provision of this Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by law, and all rights conferred on stockholders in this
Restated Certificate of Incorporation are subject to this reservation.
3. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors of the Corporation without the approval of the holders of
outstanding stock of the Corporation in accordance with the provisions of
Section 245 of the General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed by its President, Chief Executive Officer and Secretary this 1st day of
November, 1993.
INTERFILM, INC.
By: /s/ Lawrence B. Kuppin
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Lawrence B. Kuppin
President, Chief Executive
Officer and Secretary
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
INTERFILM, INC.
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Under Section 242 of the
General Corporation Law
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The undersigned officer of Interfilm, Inc., a Delaware corporation (the
"Corporation"), in order to amend the Restated Certificate of Incorporation of
the Corporation, pursuant to the provisions of Section 242 of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
1. The name of the Corporation is "Interfilm, Inc."
2. The name under which the Corporation was originally incorporated was
"Cinedco, Inc." The original Certificate of Incorporation of the Corporation
was filed by the Secretary of State of the State of Delaware on November 21,
1986.
3. The purpose of this amendment to the Restated Certificate of
Incorporation of the Corporation is: (i) to change the name of the Corporation
to "Palatin Technologies, Inc.", (ii) to increase the authorized shares of the
Company's common stock, par value $.01 per share (the "Common Stock"), from
10,000,000 to 25,000,000, and (iii) to effect a 1-for-10 reverse split of the
Common Stock.
4. The Restated Certificate of Incorporation of the Corporation is hereby
amended by striking out Article I thereof in its entirety and by substituting
in lieu of said Article the following new Article I:
"ARTICLE I
Name
The name of the Corporation is PALATIN TECHNOLOGIES, INC."
5. The Restated Certificate of Incorporation of the Corporation is hereby
amended by striking out Section 1 of Article IV thereof in its entirety and by
substituting in lieu of said Section 1 the following new Section 1:
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"Section 1. Authorized Capital Stock. The Corporation shall be authorized
to issue two classes of shares of capital stock to be designated,
respectively, "Preferred Stock" and "Common Stock." The total number of shares
of capital stock which the Corporation shall have the authority to issue is
27,000,000, comprised of 25,000,000 shares of Common Stock, par value $.01 per
share, and 2,000,000 shares of Preferred Stock, par value $.01 per share.
On the effective date of this amendment to the Restated Certificate of
Incorporation (the "Effective Date"), the Common Stock of the Corporation will
be reverse split on a one-for-ten basis so that each share of Common Stock
issued and outstanding immediately prior to the Effective Date shall
automatically be converted into and reconstituted as one-tenth of a share of
Common Stock (the "Reverse Split"). No fractional shares will be issued by the
Corporation as a result of the Reverse Split. In lieu thereof, each
stockholder whose shares of Common Stock are not evenly divisible by ten will
receive an amount of cash equal to the average of the average last reported
bid and asked price of the Common Stock of the Corporation on the OTC
Electronic Bulletin Board for each of the first three days subsequent to the
Effective Date on which the Common Stock of the Corporation is traded
multiplied by the fractional interest."
6. The foregoing amendment to the Corporation's Restated Certificate of
Incorporation was duly authorized and adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware by unanimous written consent of the Board of Directors of the
Corporation dated June 13, 1996, and by written consent of a majority of the
Common Stockholders of the Corporation dated June 13, 1996.
IN WITNESS WHEREOF, the undersigned has signed this Certificate and does
hereby affirm, under penalty of perjury, that the statements contained herein
are true and correct, this 19th day of July 1996.
/s/ John J. McDonough
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Name: John J. McDonough
Title: Vice President
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INTERFILM, INC.
AMENDED
CERTIFICATE OF DESIGNATION OF SERIES A PREFERRED STOCK
WHEREAS, the Board of Directors of this Corporation has previously authorized
the issuance of Series A Preferred Stock and has filed a Certificate of
Designation relating thereto with the Secretary of State of Delaware on June 21,
1996;
WHEREAS, no shares of such Series A Preferred Stock have been issued; and
WHEREAS, the Board of Directors of this Corporation hereby determines that it is
in the best interests of this Corporation that this Amended Certificate of
Designation completely supersede, amend and restate the aforementioned
Certificate with respect to the Series A Preferred Stock as follows;
WHEREAS, the Certificate of Incorporation of this Corporation, as restated,
authorizes this Corporation to issue 2,000,000 shares of preferred stock, par
value $.01 per share;
WHEREAS, the Certificate of Incorporation of this Corporation, as restated,
authorizes the Board of Directors of this Corporation to determine the
designations, powers, preferences, rights and privileges of such preferred
stock, including the rights, if any, of the holders thereof with respect to
dividends, liquidation, voting, redemption and conversion;
WHEREAS, the Board of Directors of this Corporation has been previously
authorized to issue preferred stock of this Corporation in series;
WHEREAS, pursuant to that certain Agreement and Plan of Reorganization (the
"Reorganization Plan") made and entered into as of April 12, 1996, by and among
this Corporation, Interfilm Acquisition Corp., the wholly-owned subsidiary of
this Corporation and a
New Mexico corporation ("InSub") and RhoMed Incorporated, a New Mexico
corporation ("RhoMed"), this Corporation intends to merge InSub with and into
RhoMed whereupon the separate existence of InSub shall cease, and RhoMed shall
be the surviving corporation (the "Merger");
WHEREAS, in connection with the Merger, this Corporation intends to issue
certain shares of preferred stock to the shareholders of RhoMed; and
WHEREAS, to provide for such issuance, the Board of Directors hereby determines
that it is in the best interests of this Corporation to designate 40,000 shares
of Series A Preferred Stock upon the terms and conditions contained in this
Certificate of Designation.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors hereby fixes and
determines the designation of, the number of shares constituting, and the
powers, preferences, rights and privileges relating to, said Series A Preferred
Stock as follows:
1. Designation and Number of Shares. The Board of Directors hereby
creates a series of preferred stock designated as Series A Preferred Stock which
shall consist of 40,000 shares.
2. Dividend Rights. Each of the shares of the Series A Preferred Stock,
on an "as-converted" and pro-rata basis, shall participate with the shares of
the Common Stock of this Corporation in any dividends paid by this Corporation
on such Common Stock; provided, however, that no shares of the Series A
Preferred Stock shall participate in any manner with any direct or indirect
distribution to the shares of the Common Stock of this Corporation of any of the
assets of the Interfilm Stockholders Limited Partnership, a Delaware limited
partnership.
3. Rights of Liquidation. Upon any voluntary or involuntary liquidation,
dissolution or winding up of this Corporation, the holders of the Series A
Preferred Stock shall be entitled, before any distribution of assets shall be
made to the holders of Common Stock or any other shares of this Corporation
ranking junior to the Series A Preferred Stock, to receive an amount equal to
$.01 (the par value of the Series A Preferred Stock) per shares of Series A
Preferred Stock so held. After the full preferential liquidation amount has been
paid to, or
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determined or set apart for, the holders of the Series A Preferred Stock, the
remaining assets shall be paid to the holders of all classes of Common Stock and
other shares of this Corporation ranking junior to the Series A Preferred Stock.
In the event the assets of this Corporation, after being valued at the highest
value permitted by law, are insufficient to pay the full preferential
liquidation amount required to be paid to the holders of Series A Preferred
Stock, the entire remaining assets shall be paid to the holders of Series A
Preferred Stock on a pro-rata basis, and the holders of Common Stock and any
other shares of this Corporation ranking junior to Series A Preferred Stock
shall receive nothing. Neither the merger, consolidation or reorganization of
this Corporation nor the sale, lease or conveyance of all or substantially all
of this Corporation's assets shall be deemed a liquidation, dissolution or
winding up of this Corporation within the meaning of this Section.
4. Voting Rights.
(a) Holders of the Series A Preferred Stock will, to the extent
permitted by law, be entitled to vote as a single class with the Common Stock of
this Corporation on matters submitted to a vote of stockholders of this
Corporation as if the Series A Preferred Stock were converted into shares of
Common Stock pursuant to the terms of this Certificate of Designation.
(b) So long as any of the shares of the Series A Preferred Stock are
outstanding, this Corporation will not, without the affirmative vote or consent
of the holders of at least fifty percent (50%) of the shares of the Series A
Preferred Stock (the holders of such shares voting or consenting separately as a
class) at the time outstanding, given in person or by proxy, either in writing
or by a resolution adopted at a meeting called for the purpose of amending,
altering or repealing any of the provisions of this Corporation's Certificate of
Incorporation, By-laws or the resolution providing for the issuance of such
shares, pass any stockholder resolution, including such action effected by
merger or similar transaction in which this Corporation is the surviving
corporation, if such amendment or resolution would affect adversely the
preferences, special rights or powers of the shares of the Series A Preferred
Stock.
5. Redemption Rights. The shares of the Series A Preferred Stock shall
have no redemption rights.
6. Conversion. The shares of Series A Preferred Stock, as adjusted for
any stock dividends, combinations or splits, shall automatically convert into
Common Stock of this Corporation as follows:
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(a) Each share of the Series A Preferred Stock shall automatically
convert into 466.95404349 shares of Common Stock of this Corporation upon the
filing of an Amended Certificate of Incorporation (the "Amended Certificate")
that provides for, among other things, an increase in the number of shares of
Common Stock which this Corporation will be authorized to issue, as required
under Section 5.13 of the Reorganization Plan.
(b) For every one (1) share of the Common Stock of this Corporation
which is issued and outstanding as of the closing date of the Merger that is in
excess of an aggregate of four million four hundred fifty-seven thousand five
hundred (4,457,500) shares plus any shares of the Common Stock which are issued
upon exercise or conversion of all derivative securities of this Corporation
that are convertible into or exchangeable for any shares of this Corporation's
or InSub's capital stock, the total number of shares of the Common Stock into
which the Series A Preferred Stock will convert will increase by eleven and one-
half (11.5) shares of Common Stock.
(c) For every Twenty-Five Cents ($0.25) in excess of Fifty Thousand
Dollars ($50,000,00) in the aggregate of actual, contingent or other
liabilities, obligations or commitments of this Corporation and InSub
collectively outstanding as of the closing date of the Merger, as determined by
RhoMed after consultation with this Corporation, the total number of shares of
Common Stock into which the Series A Preferred Stock will convert will increase
by an additional 1.681034556 shares of Common Stock.
(d) Cash, in the amount of Five Cents ($0.05) per share of Series A
Preferred Stock, will be issued, on a pro rata basis, in lieu of fractional
shares upon the conversion of the Series A Preferred Stock into Common Stock.
(e) In order to convert the shares of Series A Preferred Stock into
shares of Common Stock, the holder thereof shall surrender at any office of this
Corporation the certificate or certificates therefore, duly endorsed or assigned
to this Corporation or in blank.
(f) Shares of Series A Preferred Stock shall be deemed to have been
converted as provided herein notwithstanding the failure of any holder to
surrender such holder's certificates, and the person or persons entitled to
receive Common Stock issuable upon the effective date of such conversion shall
be treated for all purposes as the record holder of holders of such Common Stock
at such time. As promptly as practicable on or after the effective date of
conversion, this Corporation shall issue and shall deliver at said office a
certificate or certificates for the number of full shares of Common Stock
issuable upon such conversion.
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(g) Upon the filing of the Amended Certificate, this Corporation shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion of the shares of Series A Preferred Stock, the full number of shares
of Common Stock then deliverable upon the conversion of all shares of Series A
Preferred Stock then outstanding.
(h) This Corporation will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
shares of the Series A Preferred Stock pursuant hereto. This Corporation shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that in which the shares of the Series A Preferred Stock so converted
were registered, and no such issue or delivery shall be made unless and until
this person requesting such issue has paid to this Corporation the amount of any
such tax, or has established, to the satisfaction of this Corporation, that such
tax has been paid.
(i) For the purpose of this Certificate, the term "Common Stock" shall
include any stock of any class of this Corporation which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of this Corporation and which
is not subject to redemption by this Corporation. However, shares issuable on
conversion of shares of the Series A Preferred Stock shall include only shares
of the class designated as Common Stock of this Corporation as the date hereof
or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of this Corporation and which are not subject to
redemption by this Corporation; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
RESOLVED FURTHER, that the officers of this Corporation are each authorized to
do or cause to be done all such acts or things and to make, execute and deliver
or cause to be made, executed and delivered all such agreements, documents,
instruments and certificates in the name and on behalf of this
5
Corporation or otherwise as they deem necessary, desirable or appropriate to
execute or carry out the purpose and intent of the foregoing resolutions.
The undersigned swears that the foregoing is true and accurate and that
he has the authority to sign this document on behalf of this Corporation.
IN WITNESS WHEREOF, I have executed this Certificate and duly affirm the
foregoing as true under the penalties of perjury as of this 12th day of June,
1996.
/s/ William I. Franzblau
-------------------------------------
William I. Franzblau, Chief Operating
Officer and Executive Vice-President
Sworn to before me this
24th day of June, 1996.
/s/ Robert P. Wessely
-----------------
Robert P. Wessely
Notary Public, State of New York
No. 4824585
Qualified in New York County
Commission Expires Oct. 31, 1996
6
INTERFILM, INC.
AMENDED
CERTIFICATE OF DESIGNATION OF SERIES B PREFERRED STOCK
WHEREAS, the Board of Directors of this Corporation has previously authorized
the issuance of Series B Preferred Stock and has filed a Certificate of
Designation relating thereto with the Secretary of State of Delaware on June 21,
1996;
WHEREAS, no shares of such Series B Preferred Stock have been issued; and
WHEREAS, the Board of Directors of this Corporation hereby determines that it is
in the best interests of this Corporation that this Amended Certificate of
Designation completely supersede, amend and restate the aforementioned
Certificate with respect to the Series B Preferred Stock as follows:
WHEREAS, the Certificate of Incorporation of this Corporation, as restated,
authorizes this Corporation to issue 2,000,000 shares of preferred stock, par
value $.01 per share;
WHEREAS, the Certificate of Incorporation of this Corporation, as restated,
authorizes the Board of Directors of this Corporation to determine the
designations, powers, preferences, rights and privileges of such preferred
stock, including the rights, if any, of the holders thereof with respect to
dividends, liquidation, voting, redemption and conversion;
WHEREAS, the Board of Directors of this Corporation has been previously
authorized to issue preferred stock of this Corporation in series;
WHEREAS, pursuant to that certain Agreement and Plan of Reorganization (the
"Reorganization Plan") made and entered into as of April 12, 1996, by and among
this Corporation, Interfilm Acquisition Corp., the wholly-owned subsidiary of
this Corporation and a New Mexico corporation ("InSub") and RhoMed
<PAGE>
Incorporated, a New Mexico corporation ("RhoMed"), this Corporation intends to
merge InSub with and into RhoMed whereupon the separate existence of InSub shall
cease, and RhoMed shall be the surviving corporation (the "Merger");
WHEREAS, in connection with the Merger, this Corporation intends to issue
certain shares of preferred stock to the shareholders of RhoMed; and
WHEREAS, to provide for such issuance, the Board of Directors hereby determines
that it is in the best interests of this Corporation to designate 720,033 shares
of Series B Preferred Stock upon the terms and conditions contained in this
Certificate of Designation.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors hereby fixes and
determines the designation of, the number of shares constituting, and the
powers, preferences, rights and privileges relating to, said Series B Preferred
Stock as follows:
1. DESIGNATION AND NUMBER OF SHARES. The Board of Directors
hereby creates a series of preferred stock designated as Series B Preferred
Stock which shall consist of 720,033 shares.
2. DIVIDEND RIGHTS. Each of the shares of the Series B Preferred
Stock, on an "as-converted" and pro-rata basis, shall participate with the
shares of the Common Stock of this Corporation in any dividends paid by this
Corporation on such Common Stock; provided, however, that no shares of the
Series B Preferred Stock shall participate in any manner with any direct or
indirect distribution to the shares of the Common Stock of this Corporation of
any of the assets of the Interfilm Stockholders Limited Partnership, a Delaware
limited partnership.
3. RIGHTS OF LIQUIDATION. The rights of liquidation of the
Series B Preferred Stock shall be junior to the rights of liquidation of the
Series A Preferred Stock of this Corporation. Upon any voluntary or involuntary
liquidation, dissolution or winding up of this Corporation, the holders of the
Series B Preferred Stock shall be entitled, before any distribution of assets
shall be made to the holders of Common Stock or any other shares of this
Corporation ranking junior to the Series B Preferred Stock but after the
exercise of the rights of liquidation of the Series A Preferred Stock, to
receive an amount equal to $.01 (the par value of the Series B Preferred Stock)
per share of Series B Preferred
2
<PAGE>
Stock so held. After the full preferential liquidation amount has been paid to,
or determined or set apart for, the holders of the Series B Preferred Stock, the
remaining assets shall be paid to the holders of all classes of Common Stock and
other shares of this Corporation ranking junior to the Series B Preferred Stock.
In the event the assets of this Corporation, after being valued at the highest
value permitted by law and after the exercise of the rights of liquidation of
the Series A Preferred Stock, are insufficient to pay the full preferential
liquidation amount required to be paid to the holders of Series B Preferred
Stock, the entire remaining assets shall be paid to the holders of Series B
Preferred Stock on a pro-rata basis, and the holders of Common Stock and any
other shares of this Corporation ranking junior to Series B Preferred Stock
shall receive nothing. Neither the merger, consolidation or reorganization of
this Corporation nor the sale, lease or conveyance of all or substantially all
of this Corporation's assets shall be deemed a liquidation, dissolution or
winding up of this Corporation within the meaning of this Section.
4. VOTING RIGHTS.
(a) Holders of the Series B Preferred Stock will, to the
extent permitted by law, be entitled to vote as a single class with the Common
Stock of this Corporation on matters submitted to a vote of stockholders of this
Corporation as if the Series B Preferred Stock were converted into shares of
Common Stock pursuant to the terms of this Certificate of Designation.
(b) So long as any of the shares of the Series B
Preferred Stock are outstanding, this Corporation will not, without the
affirmative vote or consent of the holders of at least fifty percent (50%) of
the shares of the Series B Preferred Stock (the holders of such shares voting or
consenting separately as a class) at the time outstanding, given in person or by
proxy, either in writing or by a resolution adopted at a meeting called for the
purpose of amending, altering or repealing any of the provisions of this
Corporation's Certificate of Incorporation, By-laws or the resolution providing
for the issuance of such shares, pass any stockholder resolution, including such
action effected by merger of similar transaction in which this Corporation is
the surviving corporation, if such amendment or resolution would affect
adversely the preferences, special rights or powers of the shares of the Series
B Preferred Stock.
5. REDEMPTION RIGHTS. The shares of the Series B Preferred Stock
shall have no redemption rights.
6. CONVERSION. The shares of Series B Preferred Stock, as
adjusted for any stock dividends, combinations or splits, shall automatically
convert into Common Stock of this Corporation as follows:
3
<PAGE>
(a) Each share of the Series H Preferred Stock shall
automatically convert into 184,332,593 shares of Common Stock of this
Corporation upon the filing of an Amended Certificate of Incorporation (the
"Amended Certificate") that provides for, among other things, an increase in the
number of shares of Common Stock which this Corporation will be authorized to
issue, as required under Section 5.13 of the Reorganization Plan.
(b) For every one (1) share of the Common Stock of this
Corporation which is issued and outstanding as of the closing date of the Merger
that is in excess of an aggregate of four million four hundred fifty-seven
thousand five hundred (4,457,500) shares plus any shares of the Common Stock
which are issued upon exercise or conversion of all derivative securities of
this Corporation that are convertible into or exchangeable for any shares of
this Corporation's or InSub's capital stock, the total number of shares of the
Common Stock into which the Series B Preferred Stock will convert will increase
by eleven and one-half (11.5) shares of Common Stock.
(c) For every Twenty-Five Cents ($0.25) in excess of
Fifty Thousand Dollars ($50,000.00) in the aggregate of actual, contingent or
other liabilities, obligations or commitments of this Corporation and InSub
collectively outstanding as of the closing date of the Merger, as determined by
RhoMed after consultation with this Corporation, the total number of shares of
Common Stock into which the Series B Preferred Stock will convert will increase
by an additional 1,235,028,373 shares of Common Stock.
(d) Cash, in the amount of Fourteen Cents ($0.14) per
share of Series B Preferred Stock, will be issued, on a pro rata basis, in lieu
of fractional shares upon the conversion of the Series B Preferred Stock into
Common Stock.
(e) In order to convert the shares of Series B Preferred
Stock into shares of Common Stock, the holder thereof shall surrender at any
office of this Corporation the certificate or certificates therefore, duly
endorsed or assigned to this Corporation or in blank.
(f) Shares of Series B Preferred Stock shall be deemed
to have been converted as provided herein notwithstanding the failure of any
holder to surrender such holder's certificates, and the person or persons
entitled to receive Common Stock issuable upon the effective date of such
conversion shall be treated for all purposes as the record holder or holders of
such Common Stock at such time. As promptly as practicable on or after the
effective date of conversion, this Corporation shall issue and shall deliver at
said office a certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion.
4
<PAGE>
(g) Upon the filing of the Amended Certificate, this
Corporation shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of the shares of Series B Preferred Stock, the full
number of shares of Common Stock then deliverable upon the conversion of all
shares of Series B Preferred Stock then outstanding.
(h) This Corporation will pay any and all taxes that may
be payable in respect of the issue or delivery of shares of Common Stock on
conversion of shares of the Series B Preferred Stock pursuant hereto. This
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of the Series B
Preferred Stock so converted were registered, and no such issue or delivery
shall be made unless and until this person requesting such issue has paid to
this Corporation the amount of any such tax, or has established, to the
satisfaction of this Corporation, that such tax has been paid.
(i) For the purpose of this Certificate, the term
"Common Stock" shall include any stock of any class of this Corporation which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of this
Corporation and which is not subject to redemption by this Corporation. However,
shares issuable on conversion of shares of the Series B Preferred Stock shall
include only shares of the class designated as Common Stock of this Corporation
as the date hereof or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of this Corporation and which
are not subject to redemption by this Corporation; provided that if at any time
there shall be more than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
RESOLVED FURTHER, that the officers of this Corporation are each authorized to
do or cause to be done all such acts or things and to make, execute and deliver
or cause to be made, executed and delivered all such agreements, documents,
instruments and certificates in the name and on behalf of this
5
<PAGE>
Corporation or otherwise as they deem necessary, desirable or appropriate to
execute or carry out the purpose and intent of the foregoing resolutions.
The undersigned swears that the foregoing is true and accurate and that
he has the authority to sign this document on behalf of this Corporation.
IN WITNESS WHEREOF, I have executed this Certificate and duly affirm the
foregoing as true under the penalties of perjury as of this 12th day of June,
1996.
/s/ William I. Franzblau,
-------------------------------
William I. Franzblau,
Chief Operating Officer and
Executive Vice-President
Sworn to before me
this 24th day of June, 1996
/s/ Robert P. Wessely
------------------------
Robert P. Wessely
Notary Public, State of New York
No. 4824585
Qualified in New York County
Commission Expires Oct. 31, 1996
COMMON STOCK COMMON STOCK
NUMBER SHARES
P
P A L A T I N
TECHNOLOGIES, INC.
INCORPORATED UNDER THE LAWS SEE REVERSE FOR CERTAIN DEFINITIONS
OF THE STATE OF DELAWARE
THIS CERTIFIES THAT
IS THE RECORD HOLDER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK,
PAR VALUE $.01 PER SHARE, OF
PALATIN TECHNOLOGIES, INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized Attorney upon surrender of this certificate property
endorsed. This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated
SECRETARY CHAIRMAN
COUNTERSIGNED AND REGISTERED
AMERICAN STOCK TRANSFER & TRUST COMPANY
(New York, New York) TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
PALATIN TECHNOLOGIES, INC.
CORPORATE
S E A L
1986
DELAWARE
The Corporation shall furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
Corporation or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Such requests shall be made to
the Corporation's Secretary at the principal office of the Corporation.
- --------------------------------------------------------------------------------
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
------ --------
TEN ENT- as tenants by the entireties (Cust) (Minor)
JT TEN- as joint tenants with under Uniform Gifts to Minors
right of survivorship and
of as tenants in common Act -------------------------
(State)
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 OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Shares
- ------------------------------------------------------------------------
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ---------------------------------------------
Attorney to
- -------------------------------------------------------------------
transfer the said stock on the books of the within-named Corporation with full
power of substitution in the premises.
Dated, X
------------------ ------------------------------------------------
X
------------------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME(S) AS WRITTEN UPON
THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE
WHATEVER.
SIGNATURE GUARANTEED:
By
- -------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP
IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17AD-15.
PALATIN 214 CARNEGIE CENTER
TECHNOLOGIES SUITE 100
PRINCETON, NJ 08540
TEL: 609 520 1911
FAX: 609 452 0880
NEWS RELEASE
FOR RELEASE JULY 22, 1996 AT 7:30 AM EDT
- ----------------------------------------
Contact: Joe Allen (investors) or John McDonough
Owen Daley (media) Palatin Technologies, Inc.
Allen & Caron, Inc/SouthCoast Communications (609) 520-1911
(714) 252-8440
PALATIN TECHNOLOGIES INC TO TRADE AS "PLTN"
PRINCETON, NJ (July 22, 1996) .... Palatin Technologies, Inc (EBB:PLTN),
previously traded as IFLM, today announced that it will trade under the new
symbol PLTN beginning with the opening of the market today. Palatin is a
developer of proprietary monoclonal antibody and enabling peptide-based
technologies for cancer therapy, diagnostic imaging and ethical drug
development. According to Palatin Chairman, President and CEO Edward J. Quilty,
an amendment to the Company's charter has become effective that changes the
Company's name from Interfilm Inc. to Palatin Technologies Inc, increases its
authorized Common stock and effects a 1:10 reverse stock split resulting in
11,539,000 Common shares outstanding. As previously announced, Palatin intends
to seek listing on the Nasdaq Small Cap.
Palatin Technologies, Inc. is a development stage company dedicated to
developing and commercializing products and technologies for diagnostic imaging,
cancer therapy and ethical drug development based upon its proprietary
monoclonal antibody, radiolabeling and enabling peptide platform technolgies.
