EXHIBIT 3.1
CERTIFICATE OF AMENDMENT OF
THE CERTIFICATE OF INCORPORATION
OF
POWER 3 MEDICAL PRODUCTS, INC.
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
Article 1. The name of the Corporation is Power 3 Medical Products,
Inc. f/k/a Sheffeld Acres, Inc. (the "Corporation").
Article 2. The Certificate of Incorporation of the Corporation was
filed with the Department of State of the State of New York on May 7, 1993.
Article 3. This Certificate of Amendment of the Certificate of
Incorporation of Power 3 Medical Products, Inc. is filed for the purpose of
amending the Certificate of Incorporation to amend and restate the powers,
designations and relative rights of the Series A Preferred Stock as set forth in
the Certificate of Amendment of the Certificate of Incorporation of Power 3
Medical Products, Inc. dated May 1, 2003. As amended and restated, such powers,
designations and relative rights are as follows:
1. Designation and Amount. There shall be a series of
Preferred Stock designated as "Series A Preferred Stock," and the
number of shares constituting such series shall be 4,000,000. Such
series is referred to herein as the "Series A Preferred Stock."
2. Stated Capital. The amount to be represented in stated
capital at all times for each share of Series A Preferred Stock shall
be $.001.
3. Rank. All shares of Series A Preferred Stock shall rank
prior to all of the Corporation's Common Stock, par value $.001 per
share (the "Common Stock"), now or hereafter issued, both as to payment
of dividends and as to distributions of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary.
4. Dividends. If any dividend or other distribution payable in
cash, securities or other property, including a dividend payable in
shares of Common Stock, is declared on the Common Stock, each holder of
shares of Series A Preferred Stock on the record date for such dividend
or distribution shall be entitled to receive on the date of payment or
distribution of such dividend or other distribution the same cash,
securities or other property which such holder would have received on
such record date if such holder was the holder of record of the number
(including any fraction) of shares of Common Stock into which the
shares of Series A Preferred Stock then held by such holder are then
convertible. No dividend or other distribution shall be declared or
paid on the Common Stock unless an equivalent dividend or other
distribution that satisfies this Section 4 is declared or paid on the
Series A Preferred Stock.
5. Liquidation Preference.
(a) The liquidation value of shares of this Series A
Preferred Stock, in case of the voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, shall be $.10 per share,
plus an amount equal to the dividends accrued and unpaid thereon to the
payment date.
(b) In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, the holders
of shares of this Series A Preferred Stock shall not be entitled to
receive the liquidation value of such shares held by them until the
liquidation value of all Senior Shares shall have been paid in full and
shall be entitled to receive the liquidation value of such shares held
by them in preference to and in priority over any distributions upon
the Common Shares and all Junior Shares. Upon payment in full of the
liquidation value to which the holders of shares of this Series A
Preferred Stock are entitled, the holders of shares of this Series A
Preferred Stock will not be entitled to any further participation in
any distribution of assets by the Corporation. If the assets of the
Corporation are not sufficient to pay in full the liquidation value
payable to the holders of shares of this Series A Preferred Stock and
the liquidation value payable to the holders of all Parity Shares, the
holders of all such shares shall share ratably in such distribution of
assets in accordance with the amounts which would be payable on such
distribution if the amounts to which the holders of shares of this
Series A Preferred Stock and the holders of Parity Shares are entitled
were paid in full.
(c) Neither a consolidation or merger of the Corporation
with or into any other corporation, nor a merger of any other
corporation with or into the Corporation, nor a sale or transfer of all
or any part of the Corporation's assets for cash or securities or other
property shall be considered a liquidation, dissolution or winding-up
of the Corporation within the meaning of this Paragraph 5.
6. Voting Rights. Except as otherwise required by law, holders
of Series A Preferred Stock are not entitled to vote.
7. No Redemption. The shares of Series A Preferred Stock are
not redeemable.
8. Conversion Provisions.
(a) Conversion at Option of Holders. Each share of Series A
Preferred Stock shall be convertible at the option of the holder
thereof, at any time after October 31, 2004, into fully paid and
nonassessable shares of Common Stock and such other securities and
property as hereinafter provided, initially at the rate of .7752 shares
of Common Stock for each full share of Series A Preferred Stock
("Conversion Ratio").
For the purpose of this Certificate of Amendment of the
Certificate of Incorporation, the term "Common Stock" shall initially
mean the class designated
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as Common Stock, par value $.001 per share, of the Corporation as of
May 5, 2004 subject to adjustment as hereinafter provided.
(b) Mechanics of Conversion. Any holder of shares of Series
A Preferred Stock desiring to convert such shares into Common Stock
shall surrender the certificate or certificates for such shares of
Series A Preferred Stock at the office of the transfer agent for the
Series A Preferred Stock, which certificate or certificates, if the
Corporation shall so require, shall be duly endorsed to the Corporation
or in blank, or accompanied by proper instruments of transfer to the
Corporation or in blank, accompanied by irrevocable written notice to
the Corporation that the holder elects so to convert such shares of
Series A Preferred Stock and specifying the name or names (with
address) in which a certificate or certificates for Common Stock are to
be issued. No adjustments in respect of any dividend on the Common
Stock issued upon conversion shall be made upon the conversion of any
shares of Series A Preferred Stock.
Any accrued and unpaid dividends on shares surrendered for
conversion shall be paid upon the conversion of any shares of Series A
Preferred Stock by issuing additional shares of Common Stock with an
aggregate value based upon the Current Market Value (as defined below)
as of the effective date of conversion equal to all accrued and unpaid
dividends on the shares of Series A Preferred Stock converted.
The Corporation will, as soon as practicable after such
deposit of certificates for Series A Preferred Stock accompanied by the
written notice and, compliance with any other conditions herein
contained, deliver at the office of the transfer agent to the person
for whose account such shares of Series A Preferred Stock were so
surrendered, or to his nominee or nominees, certificates for the number
of full shares of Common Stock to which he shall be entitled as
aforesaid, together with a cash adjustment of any fraction of a share
as hereinafter provided. Subject to the following provisions of this
paragraph, such conversion shall be deemed to have been made as of the
date of such surrender of the shares of Series A Preferred Stock to be
converted, and the person or person entitled to receive the Common
Stock deliverable upon conversion of such Series A Preferred Stock
shall be treated for all purposes as the record holder or holders of
such Common Stock on such date; provided, however, that the Corporation
shall not be required to convert any shares of Series A Preferred Stock
while the stock transfer books of the Corporation are closed for any
purpose, but the surrender of Series A Preferred Stock for conversion
during any period while such books are so closed shall become effective
for conversion immediately upon the reopening of such books as if the
surrender had been made on the date of such reopening, and the
conversion shall be at the conversion rate in effect on such date.
(c) The Conversion Ratio shall be subject to adjustment as
follows:
(i) In case the Corporation shall (A) pay a dividend or
make a distribution in Common Stock, or (B) subdivide or
reclassify its
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outstanding shares of Common Stock into a greater number
(but not smaller number) of shares, the Conversion Ratio in
effect immediately prior thereto shall be adjusted
retroactively as provided below so that the Conversion
Ratio thereafter shall be determined by multiplying the
Conversion Ratio at which such shares of this Series A
Preferred Stock were theretofore convertible by a fraction
of which the numerator shall be the number of shares of
Common Stock outstanding immediately following such action
and of which the denominator shall be the number of shares
of Common Stock outstanding immediately prior thereto. Such
adjustment shall be made whenever any event listed above
shall occur and shall become effective retroactively
immediately after the record date in the case of a dividend
and shall become effective immediately after the effective
date in the case of a subdivision or reclassification.
(ii) In case the Corporation shall issue rights or
warrants to all holders of its Common Stock entitling them
(for a period expiring within 45 days after the record date
therefor) to subscribe for or purchase shares of Common
Stock at a price per share less than the current market
price per share of Common Stock (as determined in
accordance with the provisions of subclause (iv) of this
clause (d)) at the record date therefor (the "Current
Market Price"), or in case the Corporation shall issue
other securities convertible into or exchangeable for
Common Stock for a consideration per share of Common Stock
deliverable upon conversion or exchange thereof less than
the Current Market Price; then the Conversion Ratio in
effect immediately prior thereto shall be adjusted
retroactively as provided below so that the Conversion
Ratio therefor shall be equal to the price determined by
multiplying the Conversion Ratio at which shares of this
Series A Preferred Stock were theretofore convertible by a
fraction of which the denominator shall be the number of
shares of Common Stock outstanding on the date of issuance
of such convertible or exchangeable securities, rights or
warrants plus the number of additional shares of Common
Stock offered for subscription or purchase and of which the
numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such shares,
convertible or exchangeable securities, rights or warrants
plus the number of additional shares of Common Stock which
the aggregate offering price of the number of shares of
Common Stock so offered would purchase at the Current
Market Price per share of Common Stock (as determined in
accordance with the provisions of subclause (iv) of this
clause (d)). Such adjustment shall be made whenever such
convertible or exchangeable securities rights or warrants
are issued, and shall become effective retroactively
immediately after the record date for the determination of
stockholders entitled to receive such securities. However
upon the expiration of any right or warrant to purchase
Common Stock the issuance of which resulted in an
adjustment in the Conversion Ratio pursuant to this
subclause (ii), if any such right or warrant shall expire
and shall not have been exercised, the Conversion Ratio
shall be recomputed immediately upon such expiration and
effective immediately
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upon such expiration shall be increased to the price it
would have been (but reflecting any other adjustments to
the Conversion Ratio made pursuant to the provisions of
this clause (d) after the issuance of such rights or
warrants) had the adjustment of the Conversion Ratio made
upon the issuance of such rights or warrants been made on
the basis of offering for subscription or purchase only
that number of shares of Common Stock actually purchased
upon the exercise of such rights or warrants actually
exercised.
(iii) In case the Corporation shall distribute to all
holders of its Common Stock (including any such
distribution made in connection with a consolidation or
merger in which the Corporation is the continuing
corporation) shares of capital stock (other than Common
Stock), evidences of its indebtedness or assets (excluding
cash dividends) or rights to subscribe (excluding those
referred to in subclause (ii) of this clause (d)), then in
each such case the number of shares of Common Stock into
which each share of this Series A Preferred Stock shall
thereafter be convertible shall be determined by
multiplying the number of shares of Common Stock into which
such share of this Series A Preferred Stock was theretofore
convertible by a fraction of which the numerator shall be
the number of outstanding shares of Common Stock multiplied
by the Current Market Price per share of Common Stock (as
determined in accordance with the provisions of subclause
(iv) of this clause (d)) on the date of such distribution
and of which the denominator shall be the product of the
number of outstanding shares of Common Stock and the
Current Market Price per share of Common Stock, less the
aggregate fair market value (as determined by the Board of
Directors of the Corporation, whose determination shall be
conclusive, and described in a statement filed with the
transfer agent for the shares of this Series A Preferred
Stock) of the capital stock, assets or evidences of
indebtedness so distributed or of such subscription rights.
Such adjustment shall be made whenever any such
distribution is made, and shall become effective
retroactively immediately after the record date for the
determination of stockholders entitled to receive such
distribution.
(iv) For the purpose of any computation under
subclause (ii) and (iii) of this clause (d) and under
clause (b) above, the Current Market Price per share of
Common Stock at any date shall be deemed to be the average
Sale Price for the thirty consecutive trading days
commencing forty-five trading days before the day in
question. As used herein, "Sale Price" means the closing
sales price of the Common Stock (or if no sale price is
reported, the average of the high and low bid prices) as
reported by the principal national or regional stock
exchange on which the Common Stock is listed or, if the
Common Stock is not listed on a national or regional stock
exchange, as reported by national Association of Securities
Dealers Automated Quotation System and if not so reported
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then as reported by the Electronic Bulletin Board or the
National Quotation Bureau Incorporated.
(v) No adjustment in the Conversion Ratio shall be
required unless such adjustment would require an increase
or decrease of at least 1% in the price then in effect;
provided, however, that any adjustments which by reason of
this subclause (v) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations under this Paragraph 8 shall
be made to the nearest cent.
(vi) In the event that, at any time as a result of an
adjustment made pursuant to subclause (i) or subclause
(iii) of this clause (d), the holder of any share of this
Series A Preferred Stock thereafter surrendered for
conversion shall become entitled to receive any shares of
the Corporation other than shares of the Common Stock,
thereafter the number of such other shares so receivable
upon conversion of any share of this Series A Preferred
Stock shall be subject to adjustment from time to time in a
manner and on the terms as nearly equivalent as practicable
to the provisions with respect to the Common Stock
contained in subclauses (i) through (v) of this clause (d),
and the other provisions of this clause (d) with respect to
the Common Stock shall apply on like terms to any such
other shares.
(vii) Whenever the conversion rate is adjusted, as
herein provided, the Corporation shall promptly file with
the transfer agent for this Series A Preferred Stock, a
certificate of an officer of the Corporation setting forth
the conversion rate after such adjustment and setting forth
a brief statement of the facts requiring such adjustment
and a computation thereof. Such certificate shall be
conclusive evidence of the correctness of such adjustment.
The Corporation shall promptly cause a notice of the
adjusted conversion rate to be mailed to each registered
holder of shares of this Series A Preferred Stock.
(d) If any of the following events occur, namely (i) any
reclassification or change (other than a combination of
reclassification into a smaller number of shares) of outstanding shares
of Common Stock issuable upon conversion of shares of this Series A
Preferred Stock (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a
subdivision) or (ii) any consolidation or merger to which the
Corporation is a party (other than a consolidation or merger to which
the Corporation is the continuing corporation and which does not result
in any classification of, or change (other than a change in par value,
or from par value to no par value, or from no par value to par value,
or as a result of a subdivision) in, outstanding shares of Common
Stock); then the Corporation or such successor, as the case may be,
shall provide in its Certificate of Incorporation that each share of
this Series A Preferred Stock shall be convertible into the kind and
amount of shares of stock and other securities or property receivable
upon such reclassification,
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change, consolidation or merger by a holder of the number of shares of
Common Stock issuable upon conversion of each such share of this Series
A Preferred Stock immediately prior to such reclassification, change,
consolidation or merger. Such Certificate of Incorporation shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in clause (d). The
Corporation shall cause notice of the execution of any such event
contemplated by this clause (d) to be mailed to each holder of shares
of this Series A Preferred Stock as soon as practicable.
The above provisions of this clause (d) shall similarly apply
to successive reclassifications, consolidations and mergers.
9. Protective Provisions.
(a) Reservation of Shares; Transfer Taxes; Etc. The
Corporation shall at all times serve and keep available, out of its
authorized and unissued stock, solely for the purpose of effecting the
conversion of the Series A Preferred Stock, such number of shares of
its Common Stock free of preemptive rights as shall from time to time
be sufficient to effect the conversion of all shares of Series A
Preferred Stock from time to time outstanding. The Corporation shall
from time to time, in accordance with the laws of the State of New
York, increase the authorized number of shares of Common Stock if at
any time the number of shares of Common Stock not outstanding shall not
be sufficient to permit the conversion of all the then outstanding
shares of Series A Preferred Stock.
If any shares of Common Stock required to be reserved for
purposes of conversion of the Series A Preferred Stock hereunder
require registration with or approval of any governmental authority
under any Federal or State law before such shares may be issued upon
conversion, the Corporation will in good faith and as expeditiously as
possible endeavor to cause such shares to be duly registered or
approved, as the case may be. If the Common Stock is listed on the New
York Stock Exchange or any other national securities exchange, the
Corporation will, if permitted by the rules of such exchange, list and
keep listed on such exchange, upon official notice of issuance, all
shares of Common Stock issuable upon conversion of the Series A
Preferred Stock.
The Corporation will pay any and all issue or other taxes that
may be payable in respect of any issue or delivery of shares of Common
Stock on conversion of the Series A Preferred Stock. The Corporation
shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of Common
Stock (or other securities or assets) in a name other than that which
the shares of Series A Preferred Stock so converted were registered,
and no such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Corporation the amount of such
tax or has established, to the satisfaction of the Corporation, that
such tax has been paid.
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(b) Prior Notice of Certain Events. In case:
(i) The Corporation shall (1) declare any dividend (or
any other distribution) on its Common Stock, other than (A) a
dividend payable in shares of Common Stock or (B) a dividend
payable in cash out of its retained earnings other than any
special or nonrecurring or other extraordinary dividend or
(2) declare or authorize a redemption or repurchase of in
excess of 10% of the than-outstanding shares of Common Stock;
or
(ii) the Corporation shall authorize the granting to the
holders of Common Stock of rights or warrants to subscribe
for or purchase any shares of stock of any class or of any
other rights or warrants (other than any rights specified in
subclause (ii) of clause (d) of this Paragraph 9); or
(iii) of any reclassification of Common Stock (other than
a subdivision of the outstanding Common Stock, or a change in
par value, or from par value to no par value, or from no par
value to par value), or of any consolidation or merger to
which the Corporation is a party and for which approval of
any stockholders of the Corporation shall be required, or of
the sale or transfer of all or substantially all of the
assets of the Corporation or of any compulsory share exchange
whereby the Common Stock is converted into other securities,
cash or other property; or
(iv) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed with the transfer agent
for the Series A Preferred Stock, and shall cause to be mailed to the
holders of record of the Series A Preferred Stock, at their last
address as they shall appear upon the stock transfer books of the
Corporation, at least 15 days prior to the applicable record date
hereinafter specified, a notice stating (x) the date on which a record
is to be taken for the purpose of such dividend, distribution,
redemption or granting of rights or warrants or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution, redemption, rights or
warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, share
exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share
exchange, dissolution, liquidation or winding up (but no failure to
mail such notice or any defect therein or in the mailing thereof shall
affect the validity of the corporate action required to be specified in
such notice).
(c) Class Voting Rights. So long as the Series A Preferred
Stock is outstanding, the Corporation shall not, without the
affirmative vote or consent of
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the holders of at least a majority of all outstanding Series A
Preferred Stock voting separately as a class, (i) amend, alter or
repeal (by merger or otherwise) any provision of the Articles of
Incorporation or the By-Laws of the Corporation, as amended, so as
adversely to affect the relative rights, preferences, qualifications,
limitations or restrictions of the Series A Preferred Stock, (ii)
authorize or issue, or increase the authorized amount of, any
additional class or series of stock, or any security convertible into
stock of such class or series, ranking prior to the Series A Preferred
Stock in respect of the payment of dividends or upon liquidation,
dissolution or winding up of the Corporation or (iii) effect any
reclassification of the Series A Preferred Stock. A class vote on the
part of the Series A Preferred Stock shall, without limitation,
specifically not be deemed to be required (except as otherwise required
by law or resolution of the Corporation's Board of Directors) in
connection with: (a) the authorization, issuance or increase in the
authorized amount of any shares of any other class or series of stock
which ranks junior to, or on a parity with, the Series A Preferred
Stock in respect of the payment of dividends and distributions upon
liquidation, dissolution or winding up of the Corporation; or (b) the
authorization, issuance or increase in the amount of any bonds,
mortgages, debentures or other obligations of the Corporation.
The affirmative vote or consent of the holders of a majority
of the outstanding Series A Preferred Stock, voting or consenting
separately as a class, shall be required to (a) authorize any sale,
lease or conveyance of all or substantially all of the assets of the
Corporation, or (b) approve any merger, consolidation or compulsory
share exchange of the Corporation with or into any other person unless
(i) the terms of such merger, consolidation or compulsory share
exchange do not provide for a change in the terms of the Series A
Preferred Stock and (ii) the Series A Preferred Stock is, after such
merger, consolidation or compulsory share exchange on a parity with or
prior to any other class or series of capital stock authorized by the
surviving corporation as to dividends and upon liquidation, dissolution
or winding up other than any class or series of stock of the
Corporation prior to the Series A Preferred Stock as may have been
created with the affirmative vote or consent of the holders of at least
66-2/3% of the Series A Preferred Stock (or other than a class or
series into which such prior stock is converted as a result of such
merger, consolidation or share exchange).
10. Outstanding Shares. For purposes of this Certificate of
Designation, all shares of Series A Preferred Stock shall be deemed outstanding
except (i) from the date of surrender of certificates representing shares of
Series A Preferred Stock, all shares of Series A Preferred Stock converted into
Common Stock; (ii) from the date of registration of transfer, all shares of
Series A Preferred Stock held of record by the Corporation or any subsidiary of
the Corporation.
11. Certain Definitions. As used in this Certificate, the following
terms shall have the following respective meanings:
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"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under common
control with such specified person. For purposes of this definition,
"control" when used with respect to any person means the power to
direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities or
otherwise; and the term "controlling" and "controlled" having meanings
correlative to the foregoing.
"Common Shares" shall mean any stock of the 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 the Corporation and which is not subject to redemption by
the Corporation. However, Common Shares issuable upon conversion of
shares of this Series A Preferred Stock shall include only shares of
the class designated as common Shares as of the original date of
issuance of shares of this Series A Preferred Stock, or shares of the
Corporation 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 the Corporation
and which are not subject to redemption by the 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 such reclassifications bears to the total number of
shares of all classes resulting from all such reclassifications.
"Junior Shares" shall mean shares of any series or class of
the Corporation which are by their terms expressly made junior to
shares of this Series A Preferred Stock at the time outstanding either
as to dividends or as to the distribution of assets on any voluntary or
involuntary liquidation of the Corporation.
"Parity Shares" shall mean shares which are by their terms on
a parity with the shares of this Series A Preferred Stock at the time
outstanding both as to dividends and as to the distribution of assets
on any voluntary or involuntary liquidation of the Corporation. For
purposes of this Paragraph 11 Parity Shares shall mean shares which are
by their terms on a parity with the shares of this Series A Preferred
Stock at the time outstanding as to dividends regardless of such shares
preference with respect to liquidation.
"Senior Shares" shall mean any class of shares of the
Corporation ranking prior to at least one other class of shares of the
Corporation as to dividends for purposes of Paragraph 4 and the
distribution of assets on any voluntary or involuntary liquidation of
the Corporation for purposes of Paragraph 5.
12. Securities Not Registered Under the Securities Act of
1933. Neither the shares of Series A Preferred Stock nor the Common
Stock issuable upon conversion thereof has been registered under the
Securities Act of 1933 or the laws of any state of the United States
and may not be transferred without such registration or an exemption
from registration.
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(a) Restrictive Legends. Each share of Series A Preferred
Stock and certificate for Common Stock issued upon the conversion of
any shares of Series A Preferred Stock, and each preferred stock
certificate issued upon the transfer of any such shares of Series A
Preferred Stock or Common Stock (except as otherwise permitted by this
Section 12), shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"The securities represented hereby have not been registered under the
Securities Act of 1933. Such securities may not be sold or transferred
in the absence of such registration or an exemption therefrom under
said Act."
(b) Notice of Proposed Transfer; Opinions of Counsel. Except
as provided in Paragraph (c) of this Section 11, prior to any transfer
of any such shares of Series A Preferred Stock, or Common Stock, the
holder thereof will give written notice to the Corporation of such
holder's intention to effect such transfer and to comply in all other
respects with this Section 11. Each such notice (A) shall describe the
manner and circumstances of the proposed transfer in sufficient detail
to enable counsel to render the opinions referred to below, and (B)
shall designate counsel for the holder giving such notice (who may be
house counsel for such holder). The holder giving such notice will
submit a copy thereof to the counsel designated in such notice and the
Corporation will promptly submit a copy thereof to its counsel, and the
following provisions shall apply:
(i) If in the opinion of each such counsel the
proposed transfer of such shares of Series A Preferred Stock
or Common Stock may be effected without registration under the
Act, the Corporation will promptly notify the holder thereof
and such holder shall thereupon be entitled to transfer such
shares of Series A Preferred Stock or Common Stock in
accordance with the terms of the notice delivered by such
holder to the Corporation. Each share of Series A Preferred
Stock or certificate, if any, issued upon or in connection
with such transfer shall bear the appropriate restrictive
legend set forth in Paragraph (a) of this Section 12, unless
in the opinion of each such counsel such legend is no longer
required to insure compliance with the Act. Except as provided
in subclause (ii) below, if for any reason counsel for the
Corporation (after having been furnished with the information
required to be furnished by this Paragraph (b)) shall fail to
deliver an opinion of the Corporation, or the Corporation
shall fail to notify such holder thereof as aforesaid, within
20 days after counsel for such holder shall have delivered its
opinion to such holder (with a copy to the Corporation), then
for all purposes of this Certificate of Designation the
opinion of counsel for the Corporation shall be deemed to be
the same as the opinion of counsel for such holder.
(ii) If in the opinion of either or both of such
counsel the proposed transfer of such shares of Series A
Preferred Stock or Common Stock may not be effected without
registration under the Act, the
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Corporation will promptly so notify the holder thereof and
thereafter such holder shall not be entitled to transfer such
share of Series A Preferred Stock or Common Stock until
receipt of a further notice from the Corporation under
subclause (i) above or, in the case of Common Stock, until
registration of such Common stock under the Act has become
effective.
13. Preemptive Rights. The Series A Preferred Stock is not
entitled to any preemptive or subscription rights in respect of any
securities of the Corporation.
14. Severability of Provisions. Whenever possible, each
provision hereof shall be interpreted in a manner as to be effective
and valid under applicable law, but if any provision hereof is held to
be prohibited by or invalid under applicable law, such provision shall
be ineffective only the extent of such prohibition or invalidity,
without invalidating or otherwise adversely affecting the remaining
provisions hereof. If a court of competent jurisdiction should
determine that a provision hereof would be valid or enforceable if a
period of time were extended or shortened or a particular percentage
were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and
valid under applicable law.
Article 4. This Certificate of Amendment of the Certificate of
Incorporation was authorized by the Board of Directors pursuant to Section 708
of the New York Business Corporation Law and by the holders of the outstanding
Series A Preferred Stock pursuant to Section 804 of the New York Business
Corporation Law.
IN WITNESS WHEREOF, Power 3 Medical Products, Inc. has caused this
certificate to be signed by its Chief Executive Officer as of the 28th day of
October, 2004.
POWER 3 MEDICAL PRODUCTS, INC.
By: /s/ Steven B. Rash
---------------------------------
Name: Steven B. Rash
Title: Chief Executive Officer
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