AMENDMENT
TO THE
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
XXXXXXXX.XXX, INC.
Pursuant to the provisions of Section 0-000-000 of the Colorado Business
Corporation Act, the undersigned corporation hereby adopts the following
amendment to the Third Amended and Restated Articles of Incorporation. The
Amendment was adopted by the board of directors on April __, 2001 and does not
contain any amendment requiring shareholder approval.
The following shall be an addition to Article VI :
1. Designation and Number. The Company entered into an Acquisition
Agreement, a Voting and Exchange Agreement and Trust Agreement dated as of
January 12, 2001 to purchase IC Education, Inc. In order to facilitate certain
voting rights in the Company given to a Trustee to act on behalf of the
shareholders of IC Education, Inc. pursuant to the Trust Agreement, one (1)
share of Preferred Stock of the Company shall be designated as the Series B
Preferred Share (the "Series B Preferred Share".) Except as stated herein, all
other powers, designations, preferences and relative participating, optional and
other special rights, and the qualifications, limitations and restrictions of
the Series B Preferred Share shall be as otherwise provided in the Trust
Agreement.
2. Dividends and Distributions. Except as required by applicable law,
neither the holder nor the owner, if different, of the Series B Preferred Share
shall be entitled to receive any dividends or distributions of the Company,
whether payable in cash, property or in shares of capital stock.
3. Redemption. The Series B Preferred Share shall not be redeemable,
except that at such time as no Exchangeable Shares (other than the Exchangeable
Shares owned by the Company and its Affiliates) shall be outstanding, the Series
B Preferred Shares shall automatically be redeemed and canceled.
4. Liquidation. In the event of any liquidation, dissolution or
winding up of the Company, the holder of the Series B Preferred Share shall
not be entitled to receive any assets of the Company available for
distribution to its shareholders.
5. Conversion. The Series B Preferred Share shall have no
conversion privilege into any other share of stock of the Company.
6. Voting Rights. The Series B Preferred Share shall have the
following voting rights:
(A) The holder of the Series B Preferred Share shall vote together with
the common stock of the Company as a single class and the Series B Preferred
Share shall have the identical voting rights to those of the Company's common
stock; and
(B) The holder of the Series B Preferred Share shall be entitled
to a number of votes equal to the number of exchangeable shares of IC Education,
Inc. as described in the Trust Agreement (the "Exchangeable Shares") outstanding
on the record date of the Company's common stock; and
(C) Except as set forth herein, or as otherwise provided by law,
the registered holders from time to time of the Exchangeable Shares shall have
no special voting rights other than through the Series B Preferred Share; and
(D) The voting rights attached to the Series B Preferred Share shall
be exercised by the Trustee and shall terminate pursuant to and in accordance
with the Trust Agreement.
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7. Changes In Terms of Preferred Stock. The terms of the Series B
Preferred Share may not be amended, altered or repealed, and no class of capital
stock or securities convertible into capital stock shall be authorized which has
superior rights to the Series B Preferred Share as to voting rights without the
consent of the holder of the Series B Preferred Share.
8. No Implied Limitations. Except as otherwise provided by express
provisions of these Articles of Incorporation, nothing herein shall limit, by
inference or otherwise, the discretionary right of the Board of Directors to
classify and reclassify and issue any shares of Preferred Stock and to fix or
alter all terms thereof to the full extent provided in the Articles of
Incorporation of the Corporation.
9. Issuance of Additional Shares. During the term of the Trust Agreement,
the Company will not issue any additional shares of the same series as the
Series B Preferred Share without the consent of the holders from time to time of
the Exchangeable Shares.
10. Notices. All notices required or permitted to be given by the
Corporation with respect to the Series B Preferred Share shall be in writing,
and if delivered by first class United States mail, postage prepaid, to the
holder of the Series B Preferred Share Stock at his/her last address as it shall
appear upon the books of the Corporation, shall be conclusively presumed to have
been duly given, whether or not the holder actually receives such notice.
11. General Provisions. In addition to the above provisions with
respect to the Preferred Stock, such Preferred Stock shall be subject to, and
entitled to the benefits of the provisions set forth in the Corporation*s
Articles of Incorporation with respect to Preferred Stock generally.
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Signed on this ___ day of ______________, 2001.
XXXXXXXX.XXX, INC.
Signature:__________________________________
Title:______________________________________
