Attached files
| file | filename |
|---|---|
| 8-K - Pure Earth, Inc. | v168194_8k.htm |
| EX-4.5 - Pure Earth, Inc. | v168194_ex4-5.htm |
| EX-4.4 - Pure Earth, Inc. | v168194_ex4-4.htm |
| EX-4.1 - Pure Earth, Inc. | v168194_ex4-1.htm |
| EX-4.2 - Pure Earth, Inc. | v168194_ex4-2.htm |
| EX-4.3 - Pure Earth, Inc. | v168194_ex4-3.htm |
Exhibit
3.1
CERTIFICATE
OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF
SERIES
C CONVERTIBLE PREFERRED STOCK
OF
PURE
EARTH, INC.
Pursuant
to Section 151 of the General Corporation Law of the State of
Delaware
Pure
Earth, Inc., a corporation organized and existing under the General Corporation
Law of the State of Delaware (the “Corporation”),
in accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
That
pursuant to the authority vested in the Board of Directors of the Corporation
(the “Board
of Directors”) in accordance with the provisions of the Second Amended
and Restated Certificate of Incorporation of the Corporation, the Board of
Directors, on November 18, 2009 adopted the following resolution authorizing and
designating a series of 260,000 shares of Preferred Stock designated as
“Series C Convertible Preferred Stock”:
RESOLVED, that, pursuant to
the authority vested in the Board of Directors of the Corporation in accordance
with the provisions of Paragraph FOURTH, subparagraph (b), of the Second
Amended and Restated Certificate of Incorporation of the Corporation, the Board
of Directors hereby fixes the powers, designations, preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations and restrictions, of a series of Preferred Stock as set forth
below:
1. Defined Terms. For
purposes of this Certificate of Designations, Preferences and Rights (this
“Certificate of
Designations”), the following capitalized terms have the meanings given
to them below:
(a) “Certificate of
Incorporation” means the Corporation’s Second Amended and Restated
Certificate of Incorporation, as the same may be further amended, modified or
restated from time to time not in contravention of the terms hereof. All
references in this Certificate of Designations to the Certificate of
Incorporation shall be deemed to include a reference to this Certificate of
Designations.
(b) “Common
Stock” means the Corporation’s common stock, having a par value of $.001
per share.
(c) “Liquidation
Value” on any date means, with respect to any share of Series C Preferred
Stock, the sum of: (i) $10.00 (subject to equitable and proportionate adjustment
for stock splits, stock combinations and similar changes impacting the Series C
Preferred Stock), plus (ii) the aggregate of all accrued and unpaid dividends on
such share at such date.
(d) “Person”
means any natural person, corporation, limited liability company, professional
association, limited partnership, general partnership, joint stock company,
joint venture, association, company, trust, bank, trust company, land trust,
business trust or other organization, whether or not a legal entity, and any
government or agency or political subdivision thereof.
(e) “Sale of the
Corporation” means: (i) the Corporation agrees to sell to an
unaffiliated third party all or substantially all of its assets (as determined
by its Board of Directors), (ii) the Corporation agrees to merge or consolidate
with another entity and the shareholders of the Corporation immediately prior to
the merger or consolidation would not own at least 51% of the voting shares of
the entity surviving the merger or consolidation, or (iii) shareholders of the
Company holding 51% or more of the voting shares of the Corporation agree to
tender their shares to a single buyer in a tender offer or negotiated sale of
shares.
(f)
“Series B
Preferred Stock” means that certain series of 20,000 shares of Preferred
Stock of the Corporation authorized and designated as Series B Preferred
Stock.
(g) “Series C Original
Issue Date” as to any share of Series C Preferred Stock, means the date
on which such share of Series C Preferred Stock is first issued by the
Corporation.
2. Designation and
Amount. A series of 260,000 shares of Preferred Stock of the Corporation
is hereby authorized and designated as “Series C Convertible Preferred Stock”
(the “Series C
Preferred Stock”).
3. Rank/Priority. With
respect to rights to dividends and other distributions prior to liquidation, and
with respect to rights to dividends and distributions upon a liquidation,
dissolution or winding up, the rights of the holders of Series C Preferred Stock
shall rank (a) senior to and prior to (i) all classes or series of common stock
of the Corporation, including, without limitation, the Common Stock, and (ii)
any class of or series of Preferred Stock which by its terms is subordinated to
or junior to the Series C Preferred Stock (collectively, the “Junior
Securities”); (b) junior to the Series B Preferred Stock and any other
class or series of Preferred Stock which by its terms is senior or prior to the
Series C Preferred Stock (collectively, the “Senior
Securities”); and (c) pari passu and at parity with any class or series
of Preferred Stock which by its terms is neither senior nor junior to the Series
C Preferred Stock.
4. Dividends.
(a) Subject
to the rights of, and limitations imposed in respect of, Senior Securities, each
holder of a share of Series C Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available therefore, cumulative dividends, payable in cash, in shares of Series
C Preferred Stock, or in Common Stock upon conversion, at the rate of (i) 10%
per annum from the Series C Original Issue Date through (but not including) the
first anniversary of the Series C Original Issue Date, and (ii) 15% per annum
from (and including) the first anniversary of the Series C Original Issue Date
through (but not including) that date on which the Series C Preferred Stock is
retired. If the Corporation elects to satisfy dividends by delivering
additional Series C Preferred Stock, the Series C Preferred Stock will be valued
for this purpose at $10.00 per share. All dividends on the Series C Preferred
Stock shall be cumulative from the Series C Original Issue Date, whether or not
there shall be funds of the Corporation legally available for the payment of
such dividends.
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(b) To
the extent not paid in cash or Series C Preferred Stock as provided above,
accrued and unpaid dividends on the Series C Preferred Stock shall be: (i)
compounded quarterly on each March 1, June 1, September 1 and December 1,
commencing March 1, 2010. (ii) computed on the basis of $10 per
share, plus any accrued and unpaid dividend amounts which are compounded as
provided above, and (ii) computed on the basis of a 360 day year consisting
of twelve 30-day months.
(c) No
dividends (other than dividends payable solely in shares of Series C Preferred
Stock, Common Stock or other Junior Securities) shall be paid, or declared and
set apart for payment by the Corporation, (i) unless and until all accrued and
unpaid dividends on the Senior Securities shall have been paid or declared and
set apart for payment and (ii) unless such payment is permitted by the terms of
the Senior Securities. No dividends shall be paid or declared and set
apart for payment on any class or series of the Corporation’s Preferred Stock
ranking, as to dividends, on a parity with the Series C Preferred Stock for any
period unless cumulative dividends have been, or contemporaneously are, paid or
declared and set apart for payment on the Series C Preferred Stock for all
dividend payment periods terminating on or prior to the date of payment of such
dividends. No dividends shall be paid or declared and set apart for
payment on the Series C Preferred Stock for any period unless cumulative
dividends have been, or contemporaneously are, paid or declared and set apart
for payment on the Preferred Stock ranking, as to dividends, on a parity with
the Series C Preferred Stock for all dividend periods terminating on or prior to
the date of payment of such dividends. When dividends are not paid in
full on the Series C Preferred Stock and any series of Preferred Stock ranking,
as to dividends, on a parity with the Series C Preferred Stock, then all
dividends paid or declared and set aside for payment on shares of Series C
Preferred Stock and such parity series of Preferred Stock shall only be paid or
declared and set aside for payment pro rata, in proportion to the relative
accrued and unpaid dividends on each such series.
(d) Other
than the liquidation preference as provided in Section 5, holders of shares of
Series C Preferred Stock shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of the cumulative dividends, as
herein provided, on the Series C Preferred Stock. Except as
provided in this Section 4, no interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on the
Series C Preferred Stock that may be in arrears.
5. Liquidation
Preference. In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, after any payment or
distribution of the assets of the Corporation (whether capital or surplus) is
made to or set apart for the holders of the Series B Preferred Stock as provided
in the Certificate of Incorporation relating thereto, but before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for the holders of Junior Securities, the holders of the
Series C Preferred Stock shall be entitled to receive an amount in cash equal to
the Liquidation Value of each such share. Except as provided in the proceeding
sentences, holders of Series C Preferred Stock shall not be entitled to any
distribution in the event of a liquidation, dissolution or winding up of the
Corporation. If, upon any liquidation, dissolution or winding up of
the Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Series C Preferred Stock (after
satisfaction of the amounts owed to holders of the Senior Securities) shall be
insufficient to pay in full such preferential amount, then such assets, or the
proceeds thereof, shall be distributed among the holders of shares of Series C
Preferred Stock ratably in accordance with the respective amounts that would be
payable on such shares of Series C Preferred Stock if all amounts payable
thereon were paid in full. After payment shall have been made in full
to the holders of the Series C Preferred Stock as provided in this Section 5,
the other series or class or classes of the Corporation shall be entitled to
receive any and all assets remaining to be paid or distributed, and the holders
of the Series C Preferred Stock shall not be entitled to share
therein.
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6. Conversion.
(a) Right to
Convert. The holders of the Series C Preferred Stock shall
have the right to convert Series C Preferred Stock into Common Stock as follows
(the “Conversion
Rights”):
(i) Conversion
Ratio. Each share of Series C Preferred Stock shall be
convertible, at the option of the holder thereof, at any time and from time to
time, and without the payment of additional consideration by the holder thereof,
into such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Liquidation Value by the Series C Conversion Price
(as defined below) in effect at the time of conversion. The “Series C
Conversion Price” shall initially be equal to $0.40. Such
initial Series C Conversion Price, and the rate at which shares of Series C
Preferred Stock may be converted into shares of Common Stock, shall be subject
to adjustment as provided in Sections 6(d) and 6(e) below.
(ii) Termination of Conversion
Rights. In the event of a notice of redemption of any shares
of Series C Preferred Stock pursuant to Section 7, the Conversion Rights of the
shares designated for redemption shall terminate at the close of business on the
last full day preceding the date fixed for redemption, unless the redemption
price is not fully paid on such redemption date, in which case the Conversion
Rights for such shares shall continue until such price is paid in
full. In the event of a liquidation, dissolution or winding up of the
Corporation, the Conversion Rights shall terminate at the close of business on
the last full day preceding the date fixed for the payment of any such amounts
distributable on such event to the holders of Series C Preferred
Stock.
(b) Fractional
Shares. No fractional shares of Common Stock shall be issued
upon conversion of the Series C Preferred Stock. In lieu of any
fractional shares of Common Stock to which the holder would otherwise be
entitled, the Corporation shall pay cash equal to such fraction multiplied by
the fair market value of a share of Common Stock as determined in good faith by
the Board of Directors of the Corporation. Whether or not fractional
shares would be issuable upon such conversion shall be determined on the basis
of the total number of shares of Series C Preferred Stock the holder is at the
time converting into Common Stock and the aggregate number of shares of Common
Stock issuable upon such conversion.
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(c) Mechanics of
Conversion.
(i) Notice of
Conversion. In order for a holder of Series C Preferred Stock
to voluntarily convert shares of Series C Preferred Stock into shares of Common
Stock, such holder shall surrender the certificate or certificates for such
shares of Series C Preferred Stock (or, if such registered holder alleges that
such certificate has been lost, stolen or destroyed, a lost certificate
affidavit and a bond or agreement reasonably acceptable to the Corporation to
indemnify the Corporation against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of such
certificate), at the office of the transfer agent for the Series C Preferred
Stock (or at the principal office of the Corporation if the Corporation serves
as its own transfer agent), together with written notice that such holder elects
to convert all or any number of the shares of the Series C Preferred Stock
represented by such certificate or certificates and, if applicable, any event on
which such conversion is contingent. Such notice shall state such
holder’s name or the names of the nominees in which such holder wishes the
certificate or certificates for shares of Common Stock to be
issued. If required by the Corporation, certificates surrendered for
conversion shall be endorsed or accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the registered holder or his, her or its attorney duly authorized in
writing. The close of business on the date of receipt by the transfer
agent (or by the Corporation if the Corporation serves as its own transfer
agent) of such certificates (or lost certificate affidavit and agreement) and
notice shall be the time of conversion (the “Conversion
Time”), and the shares of Common Stock issuable upon conversion of the
shares represented by such certificate shall be deemed to be outstanding of
record as of such date. The Corporation shall, as soon as practicable
after the Conversion Time, (i) issue and deliver to such holder of Series C
Preferred Stock, or to his, her or its nominees, a certificate or certificates
for the number of full shares of Common Stock issuable upon such conversion in
accordance with the provisions hereof and a certificate for the number (if any)
of the shares of Series C Preferred Stock represented by the surrendered
certificate that were not converted into Common Stock, and (ii) pay in cash such
amount as provided in Section 6(b) in lieu of any fraction of a share of Common
Stock otherwise issuable upon such conversion.
(ii) Reservation of
Shares. The Corporation shall at all times when the Series C
Preferred Stock shall be outstanding, reserve and keep available out of its
authorized but unissued capital stock, for the purpose of effecting the
conversion of the Series C Preferred Stock, such number of its duly authorized
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding Series C Preferred Stock; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series C
Preferred Stock, the Corporation shall take such corporate action as may be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes, including, without
limitation, engaging in best efforts to obtain the requisite stockholder
approval of any necessary amendment to the Certificate of
Incorporation. Before taking any action which would cause an
adjustment reducing the Series C Conversion Price below the then par value of
the shares of Common Stock issuable upon conversion of the Preferred Stock, the
Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of Common Stock at such adjusted
Series C Conversion Price.
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(iii) Effect of
Conversion. All shares of Series C Preferred Stock which shall
have been surrendered for conversion as herein provided shall no longer be
deemed to be outstanding and all rights with respect to such shares shall
immediately cease and terminate at the Conversion Time, except only the right of
the holders thereof to receive shares of Common Stock in exchange therefor and
to receive payment in lieu of any fraction of a share otherwise issuable upon
such conversion as provided in Section 6(b). Any shares of Series C
Preferred Stock so converted shall be retired and cancelled and may not be
reissued as shares of such series, and the Corporation may thereafter take such
appropriate action (without the need for stockholder action) as may be necessary
to reduce the authorized number of shares of Series C Preferred Stock
accordingly.
(iv) Taxes. The
Corporation shall pay any and all issuance and other similar taxes that may be
payable in respect of any issuance or delivery of shares of Common Stock upon
conversion of shares of Series C Preferred Stock pursuant to this Section
6. The Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of shares of Common Stock in a name other than that in which the shares
of Preferred Stock so converted were registered, and no such issuance or
delivery shall be made unless and until the person or entity requesting such
issuance has paid to the Corporation the amount of any such tax or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
(d) Adjustment for Dividends,
Distributions, Stock Splits and Combinations. If the
Corporation shall at any time or from time to time after the Series C Original
Issue Date pay a dividend or make a distribution on its Common Stock in shares
of Common Stock, or effect a subdivision of the outstanding Common Stock, then
the Series C Conversion Price in effect immediately before such dividend,
distribution or subdivision shall be proportionately decreased so that the
number of shares of Common Stock issuable on conversion of each share of such
series shall be increased in proportion to such increase in the aggregate number
of shares of Common Stock outstanding. If the Corporation shall at
any time or from time to time after the Series C Original Issue Date combine the
outstanding shares of Common Stock, then the Series C Conversion Price in effect
immediately before the combination shall be proportionately increased so that
the number of shares of Common Stock issuable on conversion of each share of
such series shall be decreased in proportion to such decrease in the aggregate
number of shares of Common Stock outstanding. Any adjustment under
this Section shall become effective at the close of business on the date the
dividend, distribution, subdivision or combination becomes
effective.
(e) Adjustment for Merger or
Reorganization, etc. If there shall occur any reorganization,
recapitalization, reclassification, consolidation or merger involving the
Corporation in which the Common Stock (but not the Series C Preferred Stock) is
converted into or exchanged for securities, cash or other property, then,
following any such reorganization, recapitalization, reclassification,
consolidation or merger, each share of Series C Preferred Stock shall thereafter
be convertible in lieu of the Common Stock into which it was convertible prior
to such event into the kind and amount of securities, cash or other property
which a holder of the number of shares of Common Stock of the Corporation
issuable upon conversion of one share of Series C Preferred Stock immediately
prior to such reorganization, recapitalization, reclassification, consolidation
or merger would have been entitled to receive pursuant to such transaction; and,
in such case, appropriate adjustment (as determined in good faith by the Board
of Directors of the Corporation) shall be made in the application of the
provisions in this Section 6 with respect to the rights and interests thereafter
of the holders of the Series C Preferred Stock, to the end that the provisions
set forth in this Section 6 (including provisions with respect to changes in and
other adjustments of the Series C Conversion Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities or
other property thereafter deliverable upon the conversion of the Series C
Preferred Stock.
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(f) Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Series C Conversion Price pursuant to this Section 6, the
Corporation at its expense shall, as promptly as reasonably practicable but in
any event not later than 30 days thereafter, compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series C Preferred Stock a certificate setting forth such adjustment or
readjustment (including the kind and amount of securities, cash or other
property into which the Series C Preferred Stock is convertible) and showing in
detail the facts upon which such adjustment or readjustment is
based. The Corporation shall, as promptly as reasonably practicable
after the written request at any time of any holder of Series C Preferred Stock
(but in any event not later than 10 days thereafter), furnish or cause to be
furnished to such holder a certificate setting forth (i) the Series C Conversion
Price then in effect, and (ii) the number of shares of Common Stock and the
amount, if any, of other securities, cash or property which then would be
received upon the conversion of the Series C Preferred Stock.
(g) Mandatory Conversion at
Corporation’s Election. All outstanding shares of Series
C Preferred Stock may be converted at the election of the Corporation, into
shares of Common Stock, at the then effective Series C Conversion
Price:
(i) At
the election of the Corporation in the event that, at any time, (x) the 30-day
average closing price per share of the Common Stock is greater than $1.00 per
share for any 30 day period, and (y) the 30-day
average daily trading volume of the Common Stock for such period is greater than
250,000 shares; or
(ii) Upon
the consummation of one or more public offerings of Common Stock of the
Corporation pursuant to an effective registration statement (other than on Form
S-4 or Form S-8) under the Securities Act of 1933, as amended, (1) in each case
underwritten by a regionally or nationally recognized investment bank pursuant
to which the Company receives gross cash proceeds (before reduction for
underwriting commissions, registration fees and expense and other costs and
expenses relating to the offering) of at least $20,000,000 and (2) that alone or
in the aggregate for all such offerings described in the immediately preceding
clause (1) have gross cash proceeds (before reduction for underwriting
commissions, registration fees and expenses and other costs and expenses
relating to such offerings) of at least $50,000,000 (a “Qualified Public
Offering”).
The date
and time specified by the Corporation for a mandatory conversion pursuant to
this Section 6(g) is referred to herein as the “Mandatory
Conversion Time.” The Board of Directors shall have the sole
and exclusive authority to determine whether the average prices and trading
volumes satisfy the foregoing thresholds for conversion at the Corporation’s
election.
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(h) Procedural
Requirements. All holders of record of shares of Series C
Preferred Stock shall be sent written notice of the Mandatory Conversion Time
and the place designated for mandatory conversion of all such shares of Series C
Preferred Stock pursuant to this Section 6. Such notice need not be
sent in advance of the occurrence of the Mandatory Conversion
Time. Upon receipt of such notice, each holder of shares of Series C
Preferred Stock shall surrender his, her or its certificate or certificates for
all such shares (or, if such holder alleges that such certificate has been lost,
stolen or destroyed, a lost certificate affidavit and a bond or agreement
reasonably acceptable to the Corporation to indemnify the Corporation against
any claim that may be made against the Corporation on account of the alleged
loss, theft or destruction of such certificate) to the Corporation at the place
designated in such notice. If so required by the Corporation,
certificates surrendered for conversion shall be endorsed or accompanied by
written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his, her or its
attorney duly authorized in writing. All rights with respect to the
Series C Preferred Stock converted pursuant to Section 6(g), including the
rights, if any, to receive notices and vote (other than as a holder of Common
Stock), will terminate at the Mandatory Conversion Time (notwithstanding the
failure of the holder or holders thereof to surrender the certificates at or
prior to such time), except only the rights of the holders thereof, upon
surrender of their certificate or certificates (or lost certificate affidavit
and agreement) therefor, to receive the items provided for in the next sentence
of this Section 6(h). As soon as practicable after the Mandatory
Conversion Time and the surrender of the certificate or certificates (or lost
certificate affidavit and agreement) for Series C Preferred Stock, the
Corporation shall issue and deliver to such holder, or to his, her or its
nominees, a certificate or certificates for the number of full shares of Common
Stock issuable on such conversion in accordance with the provisions hereof,
together with cash as provided in Section 6(b) in lieu of any fraction of a
share of Common Stock otherwise issuable upon such conversion. Such
converted Series C Preferred Stock shall be retired and cancelled and may not be
reissued as shares of such series, and the Corporation may thereafter take such
appropriate action (without the need for stockholder action) as may be necessary
to reduce the authorized number of shares of preferred stock
accordingly.
7. Redemption. Subject
to the rights of, and limitations imposed in respect of, Senior Securities, the
Corporation may redeem the Series C Preferred Stock, at its election, as
follows:
(a) Redemption at the
Corporation’s Option. Provided that there has been no
Qualified Public Offering since the Series C Original Issue Date of the first
issued shares of Series C Preferred Stock, the Corporation may redeem all or any
portion of the Series C Preferred Stock at redemption price per share equal to
(i) the number of shares of Common Stock into which a share of Series C
Preferred Stock is then convertible, multiplied by (ii)
the greater of (a) two times (2x) the then current Series C Conversion Price, or
(b) the then current 30-day average market closing price per share of the Common
Stock for the 30-day period immediately preceding the date of the Redemption
Notice (as defined below).
(b) Redemption in Connection
with a Sale of the Corporation. In the event that the
Corporation becomes party to a transaction that constitutes a Sale of the
Corporation, the Corporation may redeem all or any portion of the Series C
Preferred Stock, at or prior to the consummation of the Sale of the Corporation,
at a redemption price equal to the greater of (i) the Liquidation Value of such
shares, or (ii) such amount as would have been payable to on account of a share
of Series C Preferred Stock had all such share of Series C Preferred Stock been
converted into Common Stock pursuant to Section 6 immediately prior to the Sale
of the Corporation.
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(c) Redemption
Notice. The Corporation shall send written notice of any
redemption pursuant to this Section 7 (a “Redemption
Notice”) to the holders of record of the Series C Preferred Stock not
less than 30 days prior to the applicable redemption date (“Redemption
Date”). Each Redemption Notice shall state:
(i) the
number of shares of Series C Preferred Stock held by the holder that the
Corporation shall redeem on the Redemption Date specified in the Redemption
Notice;
(ii) the
Redemption Date and the redemption price (if known);
(iii) the
date upon which the holder’s right to convert such Series C Preferred Stock into
shares of Common Stock terminates (as determined in accordance with Section
6(a)(ii); and
(iv) that
the holder is to surrender to the Corporation, in the manner and at the place
designated, his, her or its certificate or certificates representing the shares
of Series C Preferred Stock to be redeemed.
(d) Surrender of Certificates;
Payment. On or before the Redemption Date, each holder of
shares of Series C Preferred Stock to be redeemed on such Redemption Date,
unless such holder has exercised his, her or its right to convert such shares as
provided in Section 6, shall surrender the certificate or certificates
representing such shares (or, if such registered holder alleges that such
certificate has been lost, stolen or destroyed, a lost certificate affidavit and
agreement reasonably acceptable to the Corporation to indemnify the Corporation
against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of such certificate) to the Corporation, in
the manner and at the place designated in the Redemption Notice, and thereupon
the redemption price for such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner
thereof. In the event that less than all of the shares of Series C
Preferred Stock represented by a certificate are redeemed, a new certificate
representing the unredeemed shares of Preferred Stock shall promptly be issued
to such holder.
(e) Rights Subsequent to
Redemption. If the Redemption Notice shall have been duly
given, and if on the applicable Redemption Date the redemption price payable
upon redemption of the shares of Series C Preferred Stock to be redeemed on such
Redemption Date is paid or tendered for payment or deposited with an independent
payment agent so as to be available therefor in a timely manner, then
notwithstanding that the certificates evidencing any of the shares of Series C
Preferred Stock so called for redemption shall not have been surrendered,
dividends with respect to such shares of Series C Preferred Stock shall cease to
accrue after such Redemption Date and all rights with respect to such shares
shall forthwith after the Redemption Date terminate, except only the right of
the holders to receive the redemption price applicable to such shares, without
interest, upon surrender of their certificate or certificates
therefor.
(f) Redeemed or Otherwise
Acquired Shares. Any shares of Series C Preferred Stock that
are redeemed by the Corporation shall be automatically and immediately cancelled
and retired and shall not be reissued, sold or transferred. Neither
the Corporation nor any of its subsidiaries may exercise any rights granted to
the holders of Series C Preferred Stock following redemption.
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8. Voting Rights. The
holders of record of shares of Series C Preferred Stock shall not be entitled to
any voting rights as a shareholder of the Corporation except as required by
applicable law.
9. Amendment. Except
where the vote or written consent of the holders of a greater number of shares
is required by law, without first obtaining the affirmative vote or written
consent of the holders of Series C Preferred Stock representing greater than 50%
of the aggregate Liquidation Value of all outstanding Series C Preferred Stock,
voting as a separate class, the Corporation shall not amend or alter any rights,
preferences or privileges of the Series C Preferred Stock. No such
amendment or alternation that adversely impacts the rights, preferences or
privileges of one or more holders of Series C Preferred Stock may be made
without the consent of each such holder.
FURTHER RESOLVED, that the
statements contained in the foregoing resolutions creating and designating the
said Series C Convertible Preferred Stock and fixing the number, powers,
designations, preferences, relative rights, qualifications, limitations,
restrictions, and other distinguishing characteristics thereof shall, upon the
effective date of said series, be deemed to be included in and be a part of the
certificate of incorporation of the Corporation pursuant to the provisions of
Sections 104 and 151 of the General Corporation Law of the State of
Delaware.
{Signature
Page Follows}
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IN WITNESS WHEREOF, Pure
Earth, Inc. caused this Certificate of Designations to be signed and attested by
the undersigned as of November 18, 2009.
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PURE
EARTH, INC.
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By:
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/s/ Mark Alsentzer
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Mark
S. Alsentzer
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Chief
Executive Officer
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{Signature
Page to the Certificate of Designations For Series C Convertible Preferred
Stock}