**Exhibit 3.1(d)**

 

**AMENDED AND RESTATED**

**CERTIFICATE OF DESIGNATIONS,**

**PREFERENCES, RIGHTS AND LIMITATIONS OF**

**SERIES B CONVERTIBLE PREFERRED STOCK**

**OF**

**ORION ACQUISITION CORP. II**

 

Pursuant to Section 151 of the General Corporation Law 

of the State of Delaware 

 

Orion Acquisition Corp. II, a Delaware corporation (hereinafter called the “Company”), hereby certifies that, pursuant to the authority expressly vested in the Board of Directors of the Company by theRestated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and in accordance with the provisions of Sections 103 and 151 of the General Corporation Law of the State of Delaware, the Board of Directors has dulyadopted the following resolutions. 

 

WHEREAS, pursuant to theCertificate of Incorporation (which authorizes 1,000,000 shares of preferred stock, $.01 par value per share (“Preferred Stock”)), the Board of Directors fixed the powers, designations, preferences and relative, participating, optional andother special rights, and the qualifications, limitations and restrictions, of the Series B Convertible Preferred Stock, and 

 

WHEREAS, no shares of Series B Convertible Preferred Stock have been issued, 

 

RESOLVED, that, pursuant to the authority vested in the Board of Directors of the Company and the provisions of theCertificate of Incorporation, the Certificate of Designations filed with the office of the Secretary of State of Delaware on June 24, 2004 creating a class of authorized Preferred Stock of the Company designated as Series B Convertible PreferredStock is hereby amended and restated in its entirety and that the desingation and number of shares thereof and the voting powers, preferences and other rights of the shares of such class, and the qualifications, limtations and restrications thereofas amended and restated, are as follows: 

 

RESOLVED, that theCompany is authorized to issue Series B Convertible Preferred Stock on the following terms and with the provisions herein set forth 

 

(1). Designation and Number of Shares. Of the 1,000,000 shares of Preferred Stock authorized pursuant to the Fourth Article of the Company’sCertificate of Incorporation, 450,000 shares are hereby designated as Series B Convertible Preferred Stock (the “Series B Preferred Stock”). 

 

(2). Liquidation Preference. In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, subject tothe rights of other Series of Preferred Stock that are in existence or may, from time to time, come into existence, the assets of the Company available for distribution to shareholders shall be distributed among the holders of the Series B PreferredStock and among common stock, $0.01 par value per share (“Common Stock”) on the basis of each share of Series B Preferred Stock receiving an amount of cash or other distributable property that is the Conversion Rate (as hereinafterdefined) times the amount payable or distributable for each share of Common Stock. 

 

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(3). Redemption. The Series B Preferred Stock does not have any redemption rights. 

 

(4). Dividends. The Series B Preferred Stock will not be entitled todividends unless the Company pays cash dividends or dividends in other property to holders of outstanding shares of Common Stock, in which event, each outstanding share of the Series B Preferred Stock will be entitled to receive dividends of cash orproperty equivalent to that paid in respect of one share of Common Stock times the Conversion Rate (as hereinafter defined). Any dividend payable to the Series B Preferred Stock will have the same record and payment date and terms as the dividend ispayable on the Common Stock. 

 

(5). Mandatory Conversion.

 

(a). Conversion. In the event that theCompany increases the number of shares of authorized Common Stock to be equal to or in excess of 25,000,000 shares of Common Stock, then upon the filing and acceptance of any change in the Certificate of Incorporation reflecting the increase incapital, whether by amendment or restatement, all the outstanding shares of Series B Preferred Stock will immediately and automatically convert into shares of the Company’s Common Stock without any notice required on the part of the Company orthe holder (“Mandatory Conversion”). In such event, holders of Series B Preferred Stock will be entitled to receive Common Stock at the conversion rate of twenty (20) shares of fully paid and non-assessable Common Stock for one (1) shareof Series B Preferred Stock (“Conversion Rate”). 

 

(b). Obligation. The Company agrees that it shall in good faith take and any all such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized shares of Common Stock tonot less than 25,000,000 and to expeditiously effect the conversion of (i) all outstanding shares of the Series B Preferred Stock to shares of Common Stock and (ii) permit the exercise of all options, warrants or rights to purchase shares of SeriesB Preferred Stock pursuant to the terms of their defining instruments, including, without limiting use its good faith best efforts to obtain the requisite shareholder approval of any necessary amendment to the Certificate of Incorporation to achievethe foregoing. 

 

(c). ConversionProcedure. The Company shall use its reasonable best efforts to issue or cause its transfer agent to issue the Common Stock issuable upon a Mandatory Conversion within three (3) business days after the Mandatory Conversion. The Company shallbear the cost associated with the issuance of the Common Stock issuable upon the Mandatory Conversion. The Common Stock and other securities issuable upon the Mandatory Conversion shall be issued with a restrictive legend indicating that it wasissued in a transaction which is exempt from registration under the Securities Act, and that it ***cannot be***transferred unless it is so registered, or an exemption from registration is available, in the opinion of counsel to the Company.The Common Stock issuable upon the Mandatory Conversion shall be issued in the same name as the person who is the holder of the Series B Preferred Stock unless, in the opinion of counsel to the Company, such transfer can be made in compliance withapplicable securities laws. The person in whose name the certificates of 

 

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Common Stock are so recorded and other securities issuable upon the Mandatory Conversion shall be treatedas a common stockholder of the Company at the close of business on the date of the Mandatory Conversion. The certificates representing the Series B Preferred Stock shall be cancelled, on the date of the Mandatory Conversion. 

 

(6). Adjustments to Conversion Rate and Reorganization. The ConversionRate for the number of shares of Common Stock into which the Series B Preferred Stock shall be converted on a Mandatory Conversion shall be subject to adjustment from time to time as hereinafter set forth: 

 

(a) Stock Dividends - Recapitalization, Reclassification, Split-Ups.If, prior to the date of Mandatory Conversion, the number of outstanding shares of Common Stock is increased by a stock dividend on the Common Stock payable in shares of Common Stock or by a split-up, recapitalization or reclassification of sharesof Common Stock or other similar event, then, on the effective date thereof, the number of shares of Common Stock issuable on the Mandatory Conversion of the Series B Preferred Stock shall be increased in proportion to such increase in outstandingshares of Common Stock. 

 

(b) Aggregation of Shares. Ifprior to the date of Mandatory Conversion, the number of outstanding shares of Common Stock is decreased by a consolidation, combination or reclassification of shares of Common Stock or other similar event, then, upon the effective date thereof, thenumber of shares of Common Stock issuable on the Mandatory conversion of the Series B Preferred Stock shall be decreased in proportion to such decrease in outstanding shares. 

 

(c) Change Resulting from Reorganization or Change in Par Value, etc. In case of any reclassification orreorganization of the outstanding shares of Common Stock which solely affects the par value of the shares of Common Stock, or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation ormerger in which the Company is the continuing corporation and which does not result in any reclassification or reorganization of the outstanding shares of Common Stock), or in the case of any sale or conveyance to another corporation or entity ofthe property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holders of the Series B Preferred Stock shall have the right thereafter (until the Mandatory Conversion or itsequivalent) to receive upon the conversion of the Series B Preferred Stock the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, orupon a dissolution following any such sale or other transfer, by a holder of the number of shares of Common Stock into which the Series B Preferred Stock is convertible immediately prior to such event; and if any reclassification also results in achange in shares of Common Stock, then such adjustment also shall be made. 

 

(d) Successive Changes. The provisions of this Section shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. 

 

(7). Voting Rights. The holders of record of shares of Series BPreferred Stock shall be entitled to the following voting rights: 

 

(a) Those voting rights required by applicable law but excluding the right to vote as a separate class (except as provided in Section (12)); and 

 

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(b) The right to vote together with the holders of the Common Stock upon all matters submitted to suchholders for a vote, the vote of each share of Series B Preferred Stock to be equal to the then Conversion Rate. 

 

Notwithstanding Section (7)(b), so long as the Series B Preferred Stock is outstanding, the holders of Series B Preferred Stock voting as a separate class shall have theright to elect one member of the Board of Directors of the Company, which director shall be subject to removal only upon the vote of the holders of a majority of the Series B Preferred Stock. The above voting rights are also subject to theProtective Rights contained in Section (12) hereof. 

 

(8). NoImpairment. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntaryaction, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this section and in thetaking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of Series B Preferred Stock against impairment. 

 

(9). No Fractional Shares and Certificate as to Adjustments. No fractional shares shall be issued upon the conversionof any share or shares of the Series B Preferred Stock, and the number of shares of Common Stock to be issued shall be rounded to the nearest whole share. The number of shares issuable upon conversion shall be determined on the basis of the totalnumber of shares of Series B Preferred Stock the holder is at the time converting into Common Stock and the number of shares of Common Stock issuable upon such aggregate conversion. 

 

(10). Notices of Record Date. In the event of any taking by the Company of a record of the holders of any class ofsecurities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend) or other distribution, any right to subscribe for, purchase or otherwise acquire any shares of stock of any class orany other securities or property, or any other right, the Company shall mail to each holder of Series B Preferred Stock, at least ten (10) days prior to the date specified therein, a notice specifying the date on which any such record is to be takenfor the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right. 

 

(11). Notices. Any notice required by the provisions of this Certificate of Designations to be given to the holders of shares of Preferred Stockshall be deemed given if deposited in the United States mail, postage prepaid, and addressed to each holder of record at his address appearing on the books of the Company. 

 

(12). Protective Provisions. So long as any shares of Series B Preferred Stock are outstanding, the Company shall notwithout first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a sixty percent (60%) of the then outstanding shares of Series B Preferred Stock, voting as a separate class: 

 

(a) create (by reclassification or otherwise) any new class or series ofshares having rights, preferences or privileges equal or senior to the Series B Preferred Stock; 

 

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(b) alter or change the rights, preferences or privileges of the Series B Preferred Stock; 

 

(c) amend the Company’s Certificate of Incorporation in a manner thatmaterially adversely affects the rights, preferences or privileges of the holders of the Series B Preferred Stock; 

 

(d) increase or decrease the authorized number of shares of Preferred Stock of the Company; 

 

(e) liquidate or wind-up the Company; 

 

(f) redeem, purchase or otherwise acquire (or pay into or set funds aside for a sinking fund for such purpose) any share orshares of Preferred Stock or Common Stock; provided, however, that this restriction shall not apply to the repurchase of shares of Common Stock from employees, officers, directors, consultants or other persons performing services for the Company orany subsidiary pursuant to agreements under which the Company has the option to repurchase such shares at cost upon the occurrence of certain events, such as the termination of employment, or through the exercise of any right of first refusal; or

 

(g) take any other action which is required to be taken onlywith the consent or approval of the holders of the Company’s capital stock, whether pursuant to the Certificate of Incorporation or the provisions of the Delaware General Corporation Law. 

 

(13). Approval of the Board of Directors. So long as any shares ofSeries B Preferred Stock are outstanding, the Company shall not take any action which is required to be taken only with the consent or approval of a majority of the Company’s Board of Directors without the consent or approval of the Series BDirector. 

 

(14). Return of Status as Authorized Shares.Upon a Mandatory Conversion or any other redemption or extinguishment of the Series B Preferred Stock, the shares converted, redeemed or extinguished will be automatically returned to the status of authorized and unissued shares of preferred stock,available for future designation and issuance pursuant to the terms of the Certificate of Incorporation. 

 

FURTHER RESOLVED, that the statements contained in the foregoing resolutions creating and designating the said Series B Convertible Preferred Stock andfixing the number, powers, preferences and relative, optional, participating, and other special rights and the 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 Company pursuant to the provisions of Sections 104 and 151 of the General Corporation Law of the State of Delaware. 

 

 

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**IN WITNESS WHEREOF**, the undersigned has executed this Certificate of Designation of the Series BConvertible Preferred Stock on this 15th day of December, 2004*.*

 
**ORION ACQUISITION CORP. II**By: 
/s/ Christopher A. Marlett
Name: Christopher A. MarlettTitle: President