exv4w1






Exhibit 4.1




CERTIFICATE OF DESIGNATIONS, RIGHTS AND PREFERENCES




of




SERIES F CONVERTIBLE PREFERRED STOCK




of




ALSERES PHARMACEUTICALS, INC.




     ALSERES PHARMACEUTICALS, INC., a Delaware corporation (the “Corporation”), pursuant to Section
151 of the General Corporation Law of the State of Delaware, does hereby make this Certificate of
Designations, Rights and Preferences and does hereby state and certify that pursuant to the
authority expressly vested in the Board of Directors of the Corporation (the “Board”) by the
Certificate of Incorporation of the Corporation, as amended to date, which authorizes the issuance
of 1,000,000 shares of preferred stock, $0.01 par value per share, in one or more series, the Board
duly adopted the following resolutions, which resolutions remain in full force and effect as of the
date hereof:



     RESOLVED, that, pursuant to Article Fourth of the Amended and Restated Certificate of
Incorporation of the Corporation, as amended to date, the Board hereby authorizes the issuance of,
and fixes the designation and preferences and relative, participating, optional and other special
rights, and qualifications, limitations and restrictions, of a series of preferred stock of the
Corporation consisting of 200,000 shares, par value $0.01 per share, to be designated “Series F
Convertible Preferred Stock” (hereinafter, the “Convertible Preferred Stock” or the “Preferred
Stock”); and be it



     RESOLVED, that each share of Convertible Preferred Stock shall rank equally in all respects
and shall be subject to the following terms and provisions:



     1. Dividends.



          (a) The Corporation shall not declare, pay or set aside any dividends (other than dividends
payable in shares of common stock, par value $0.01 per share, of the Corporation (“Common Stock”))
on shares of Common Stock unless the holders of the Preferred Stock then outstanding shall first
receive, or simultaneously receive, a dividend on each outstanding share of Preferred Stock in an
amount at least equal to the product of (i) the per share dividend to be declared, paid or set
aside for the Common Stock, multiplied by (ii) the number of shares of Common Stock into which such
share of Preferred Stock is then convertible.




          (b) The Corporation shall not declare, pay or set aside any dividends on shares of any class
or series of capital stock of the Corporation other than Common Stock unless the holders of the
Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each
outstanding share of Preferred Stock in an amount at least equal to (i) in the case of a dividend
on any class or series that is convertible into Common Stock, that dividend per share of Preferred
Stock as would equal the dividend payable on each share of such other class or series determined as
if all such shares of such class or series had been converted into Common
Stock and all shares of Preferred Stock had been converted into Common Stock on the record



 









 






date for determination of holders entitled to receive such dividend or (ii) in the case of a
dividend on any class or series that is not convertible into Common Stock, at a rate per share of
Preferred Stock determined by dividing the amount of the dividend payable on each share of such
class or series of capital stock by the original issuance price of such class or series of capital
stock and multiplying such fraction by $25 per share (subject to appropriate adjustment in the
event of any stock dividend, stock split, combination or other similar recapitalization affecting
such shares).




     2. Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset
Sales.



          (a) Payments to Holders of Preferred Stock. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of
Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders, before any payment shall be made to the holders of
the Corporation’s Series E Cumulative Convertible Preferred Stock, the Common Stock or any other
class or series of stock ranking on liquidation junior to the Preferred Stock (such Series E
Cumulative Convertible Preferred Stock, Common Stock and other stock being collectively referred to
as “Junior Stock”) by reason of their ownership thereof, an amount equal to the greater of (i) $25
per share (subject to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares), plus any dividends declared
but unpaid thereon, or (ii) such amount per share as would have been payable had each such share
been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation,
dissolution or winding up (the amount payable pursuant to this sentence is hereinafter referred to
as the “Liquidation Amount”). If upon any such liquidation, dissolution or winding up of the
Corporation the remaining assets of the Corporation available for distribution to its stockholders
shall be insufficient to pay the holders of shares of Preferred Stock and any class or series of
stock ranking on liquidation on a parity with the Preferred Stock the full amount to which they
shall be entitled, the holders of shares of Preferred Stock and any class or series of stock
ranking on liquidation on a parity with the Preferred Stock shall share ratably in any distribution
of the remaining assets and funds of the Corporation in proportion to the respective amounts which
would otherwise be payable in respect of such shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full.




          (b) Payments to Holders of Junior Stock. In the event of any voluntary or involuntary
dissolution, liquidation or winding up of the Corporation, after the payment of all preferential
amounts required to be paid to the holders of Preferred Stock and any other class or series of
stock of the Corporation ranking on liquidation senior to or on a parity with the Preferred Stock,
the holders of shares of Junior Stock then outstanding shall be entitled to receive the remaining
assets and funds of the Corporation available for distribution to its stockholders.




          (c) Deemed Liquidation Events.




               (i) The following events shall be deemed to be a liquidation of the Corporation for purposes
of this Section 2 (a “Deemed Liquidation Event”):



                    (A) a merger or consolidation in which



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	 	(I)	 	the Corporation
is a constituent party or
	 
	 	(II)	 	a subsidiary of
the Corporation is a constituent party and the
Corporation issues shares of its capital stock pursuant
to such merger or consolidation,




except any such merger or consolidation involving the Corporation or a subsidiary in which the
holders of capital stock of the Corporation immediately prior to such merger or consolidation
continue to hold immediately following such merger or consolidation, in approximately the same
proportions as such shares were held immediately prior to such merger or consolidation, at least
51%, by voting power and economic interest, of the capital stock of (1) the surviving or resulting
corporation or (2) if the surviving or resulting corporation is a wholly owned subsidiary of
another corporation immediately following such merger or consolidation, the parent corporation of
such surviving or resulting corporation; or




                    (B) the sale or exclusive license, in a single transaction or series of related transactions,
by the Corporation of all or substantially all the assets or intellectual property of the
Corporation (except where such sale or license is to a wholly owned subsidiary of the Corporation).



               (ii) The Corporation shall not effect any transaction constituting a Deemed Liquidation Event
pursuant to Subsection 2(c)(i)(A) above unless (A) the agreement or plan of merger or consolidation
provides that the consideration payable to the stockholders of the Corporation shall be allocated
among the holders of capital stock of the Corporation in accordance with Subsections 2(a) and 2(b)
above or (B) the holders of at least a majority of the then outstanding shares of Preferred Stock
specifically consent in writing to the allocation of such consideration in a manner different from
that provided in Subsections 2(a) and 2(b) above.



               (iii) In the event of a Deemed Liquidation Event pursuant to Subsection 2(c)(i)(B) above, if
the Corporation does not effect a dissolution of the Corporation under the Delaware General
Corporation Law within 60 days after such Deemed Liquidation Event, then (A) the Corporation shall
deliver a written notice to each holder of Preferred Stock no later than the 60th day
after the Deemed Liquidation Event advising such holders of their right (and the requirements to be
met to secure such right) pursuant to the terms of the following clause (B) to require the
redemption of such shares of Preferred Stock, and (B) if the holders of at least a majority of the
then outstanding shares of Preferred Stock so request in a written instrument delivered to the
Corporation not later than 75 days after such Deemed Liquidation Event, the Corporation shall use
the consideration received by the Corporation for such Deemed Liquidation Event (net of any
liabilities associated with the assets sold or technology licensed, as determined in good faith by
the Board of Directors of the Corporation), to the extent legally available therefor (the “Net
Proceeds”), to redeem, on the 90th day after such Deemed Liquidation Event (the
“Liquidation Redemption Date”), all outstanding shares of Preferred Stock at a price per share
equal to the Liquidation Amount. In the event of a redemption pursuant to the preceding sentence,
if the Net Proceeds are not sufficient to redeem all outstanding shares of Preferred Stock, the
Corporation shall redeem a pro rata portion of each holder’s shares of Preferred Stock. The
provisions of Subsections 5(a) through 5(e) below shall apply, with such necessary changes in the
details thereof as are necessitated by the context, to the



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redemption of the Preferred Stock pursuant to this Subsection 2(c)(iii). Prior to the
distribution or redemption provided for in this Subsection 2(c)(iii), the Corporation shall not
expend or dissipate the consideration received for such Deemed Liquidation Event, except to
discharge expenses incurred in the ordinary course of business.



               (iv) The amount deemed paid or distributed to the holders of capital stock of the Corporation
upon any such merger, consolidation, sale, license or redemption shall be the cash or the value of
the property, rights or securities paid or distributed to such holders by the Corporation or the
acquiring person, firm or other entity. The value of such property, rights or securities shall be
determined in good faith by the Board of Directors of the Corporation.



     3. Voting.



          (a) On any matter presented to the stockholders of the Corporation for their action or
consideration at any meeting of stockholders of the Corporation (or by written action of
stockholders in lieu of meeting), each holder of outstanding shares of Preferred Stock shall be
entitled to the number of votes equal to the number of whole shares of Common Stock into which the
shares of Preferred Stock held by such holder are convertible as of the record date for determining
stockholders entitled to vote on such matter. Except as provided by law or by the provisions of
Subsection 3(b) below, holders of Preferred Stock shall vote together with the holders of Common
Stock, and with the holders of any other series of preferred stock the terms of which so provide,
as a single class.




          (b) The Corporation shall not amend this Certificate of Designations, whether by merger,
consolidation or otherwise, so as to amend, alter or repeal the powers, preferences or special
rights of the Preferred Stock in a manner that affects them adversely, without the written consent
or affirmative vote of the holders of a majority of the then outstanding shares of Preferred Stock,
given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a
class.




     4. Optional Conversion.



     The holders of Preferred Stock shall have conversion rights as follows (the “Conversion
Rights”):



          (a) Right to Convert.




               (i) Each share of 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 $25 by the Conversion Price (as defined below) in effect at the time of
conversion. The “Conversion Price” shall initially be $1.00. Such initial Conversion Price, and
the rate at which shares of Preferred Stock may be converted into shares of Common Stock, shall be
subject to adjustment as provided below.



               (ii) In the event of a notice of redemption of any shares of Preferred Stock pursuant to
Section 5 hereof, 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



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for redemption, unless the redemption price is not 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 Preferred Stock. In the event of
such a redemption or liquidation, dissolution or winding up, the Corporation shall provide to each
holder of shares of Preferred Stock, notice of such redemption or liquidation, dissolution or
winding up, which notice shall (i) be sent at least 15 days prior to the termination of the
Conversion Rights and (ii) state the amount per share of Preferred Stock that will be paid or
distributed on such redemption or liquidation, dissolution or winding up, as the case may be.



          (b) Fractional Shares. No fractional shares of Common Stock shall be issued upon
conversion of the Preferred Stock. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price.




          (c) Mechanics of Conversion.




               (i) In order for a holder of Preferred Stock to convert shares of Preferred Stock into shares
of Common Stock, such holder shall surrender the certificate or certificates for such shares of
Preferred Stock, at the office of the transfer agent for the 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 Preferred
Stock represented by such certificate or certificates. 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 or its attorney
duly authorized in writing. The date of receipt of such certificates and notice by the transfer
agent (or by the Corporation if the Corporation serves as its own transfer agent) shall be the
conversion date (“Conversion Date”), 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 Date, issue and deliver at such
office to such holder of Preferred Stock, or to his or its nominees, a certificate or certificates
for the number of shares of Common Stock to which such holder shall be entitled, together with cash
in lieu of any fraction of a share.



               (ii) The Corporation shall at all times when any Preferred Stock shall be outstanding, reserve
and keep available out of its authorized but unissued stock, for the purpose of effecting the
conversion of the 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 Preferred Stock.
Before taking any action which would cause an adjustment reducing the 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 Conversion Price.



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               (iii) Upon any such conversion, no adjustment to the Conversion Price shall be made for any
declared but unpaid dividends on the Preferred Stock surrendered for conversion or on the Common
Stock delivered upon conversion.



               (iv) All shares of 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,
including the rights, if any, to receive notices and to vote, shall immediately cease and terminate
on the Conversion Date, except only the right of the holders thereof to receive shares of Common
Stock in exchange therefor and payment of any dividends declared but unpaid thereon. Any shares of
Preferred Stock so converted shall be retired and cancelled and shall not be reissued, and the
Corporation (without the need for stockholder action) may from time to time take such appropriate
action as may be necessary to reduce the authorized number of shares of Preferred Stock
accordingly.



               (v) The Corporation shall pay any and all issue 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
Preferred Stock pursuant to this Section 4. 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) Adjustments to Conversion Price for Diluting Issues.




               (i) Special Definitions. For purposes of this Section 4, the following definitions
shall apply:



                    (A) “Option” shall mean rights, options or warrants to subscribe for, purchase or
otherwise acquire Common Stock or Convertible Securities.



                    (B) “Original Issue Date” shall mean the date on which a share of Preferred Stock was
first issued.



                    (C) “Convertible Securities” shall mean any evidences of indebtedness, shares or other
securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding
Options.



                    (D) “Additional Shares of Common Stock” shall mean all shares of Common Stock issued
(or, pursuant to Subsection 4(d)(iii) below, deemed to be issued) by the Corporation after the
Original Issue Date, other than:




	 	(I)	 	shares of Common
Stock issued or deemed issued as a dividend or
distribution on Preferred Stock;
	 
	 	(II)	 	shares of Common
Stock issued or issuable by reason of a dividend, stock
split, split-up or other




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	 	 	 	distribution on shares of Common Stock that is
covered by Subsection 4(e) or 4(f) below;
	 
	 	(III)	 	shares of Common
Stock issued or deemed issued to employees or directors
of, or consultants to, the Corporation or any of its
subsidiaries pursuant to a plan, agreement or
arrangement approved by the Board of Directors of the
Corporation;
	 
	 	(IV)	 	shares of Common
Stock, Options or Convertible Securities issued to
banks, equipment lessors or other financial
institutions, or to real property lessors, pursuant to a
debt financing, equipment leasing or real property
leasing transaction approved by the Board of Directors
of the Corporation;
	 
	 	(V)	 	shares of Common
Stock, Options or Convertible Securities issued to
suppliers or third party service providers in connection
with the provision of goods or services pursuant to
transactions approved by the Board of Directors of the
Corporation;
	 
	 	(VI)	 	shares of Common
Stock, Options or Convertible Securities issued pursuant
to the acquisition of another corporation by the
Corporation by merger, purchase of substantially all of
the assets or other reorganization or to a joint venture
agreement or similar arrangement, provided such
issuances are approved by the Board of Directors of the
Corporation; or
	 
	 	(VII)	 	shares of Common
Stock, Options or Convertible Securities issued in
connection with sponsored research, collaboration,
technology license, development, OEM, marketing or other
similar agreements or strategic partnerships approved by
the Board of Directors of the Corporation.





               (ii) No Adjustment of Conversion Price. No adjustment in the Conversion Price shall
be made as the result of the issuance of Additional Shares of Common Stock if: (a) the
consideration per share (determined pursuant to Subsection 4(d)(v)) for such Additional Share of
Common Stock issued or deemed to be issued by the Corporation is equal to or greater than the
applicable Conversion Price in effect immediately prior to the issuance or deemed issuance of such
Additional Shares of Common Stock, or (b) prior to such issuance or deemed issuance, the
Corporation receives written notice from the holders of at least a majority of the then outstanding
shares of Preferred Stock agreeing that no such adjustment shall be made as the result of the
issuance or deemed issuance of Additional Shares of Common Stock.



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               (iii) Issue of Securities Deemed Issue of Additional Shares of Common Stock.



                    (A) If the Corporation at any time or from time to time after the Original Issue Date shall
issue any Options or Convertible Securities (excluding Options or Convertible Securities which,
upon exercise, conversion or exchange thereof, would entitle the holder thereof to receive shares
of Common Stock which are specifically excepted from the definition of Additional Shares of Common
Stock by Subsection 4(d)(i)(D) above) or shall fix a record date for the determination of holders
of any class of securities entitled to receive any such Options or Convertible Securities, then the
maximum number of shares of Common Stock (as set forth in the instrument relating thereto without
regard to any provision contained therein for a subsequent adjustment of such number) issuable upon
the exercise of such Options or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of
Common Stock issued as of the time of such issue or, in case such a record date shall have been
fixed, as of the close of business on such record date.



                    (B) If the terms of any Option or Convertible Security, the issuance of which resulted in an
adjustment to the Conversion Price pursuant to the terms of Subsection 4(d)(iv) below, are revised
(either automatically pursuant the provisions contained therein or as a result of an amendment to
such terms) to provide for either (1) any increase or decrease in the number of shares of Common
Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security
or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise,
conversion or exchange, then, effective upon such increase or decrease becoming effective, the
Conversion Price computed upon the original issue of such Option or Convertible Security (or upon
the occurrence of a record date with respect thereto) shall be readjusted to such Conversion Price
as would have obtained had such revised terms been in effect upon the original date of issuance of
such Option or Convertible Security. Notwithstanding the foregoing, no adjustment pursuant to this
clause (B) shall have the effect of increasing the Conversion Price to an amount which exceeds the
lower of (i) the Conversion Price on the original adjustment date, or (ii) the Conversion Price
that would have resulted from any issuances of Additional Shares of Common Stock between the
original adjustment date and such readjustment date.



                    (C) If the terms of any Option or Convertible Security (excluding Options or Convertible
Securities which, upon exercise, conversion or exchange thereof, would entitle the holder thereof
to receive shares of Common Stock which are specifically excepted from the definition of Additional
Shares of Common Stock by Subsection 4(d)(i)(D) above), the issuance of which did not result in an
adjustment to the Conversion Price pursuant to the terms of Subsection 4(d)(iv) below (either
because the consideration per share (determined pursuant to Subsection 4(d)(v) hereof) of the
Additional Shares of Common Stock subject thereto was equal to or greater than the Conversion Price
then in effect, or because such Option or Convertible Security was issued before the Original Issue
Date are revised after the Original Issue Date (either automatically pursuant the provisions
contained therein or as a result of an amendment to such terms) to provide for either (1) any
increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion
or exchange of any such Option or Convertible Security or (2) any increase or decrease in the
consideration payable to the



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Corporation upon such exercise, conversion or exchange, then such Option or Convertible
Security, as so amended, and the Additional Shares of Common Stock subject thereto (determined in
the manner provided in Subsection 4(d)(iii)(A) above) shall be deemed to have been issued effective
upon such increase or decrease becoming effective.



                    (D) Upon the expiration or termination of any unexercised Option or unconverted or unexchanged
Convertible Security which resulted (either upon its original issuance or upon a revision of its
terms) in an adjustment to the Conversion Price pursuant to the terms of Subsection 4(d)(iv) below,
the Conversion Price shall be readjusted to such Conversion Price as would have obtained had such
Option or Convertible Security never been issued.



                    (E) No adjustment in the Conversion Price shall be made upon the issue of shares of Common
Stock or Convertible Securities upon the exercise of Options or the issue of shares of Common Stock
upon the conversion or exchange of Convertible Securities.



               (iv) Adjustment of Conversion Price Upon Issuance of Additional Shares of Common
Stock. In the event the Corporation shall at any time after the Original Issue Date issue
Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued
pursuant to Subsection 4(d)(iii)), without consideration or for a consideration per share less than
the applicable Conversion Price in effect immediately prior to such issue, then the Conversion
Price shall be reduced, concurrently with such issue, to a price (calculated to the nearest cent)
determined by multiplying such Conversion Price by a fraction, (A) the numerator of which shall be
(1) the number of shares of Common Stock outstanding immediately prior to such issue plus (2) the
number of shares of Common Stock which the aggregate consideration received or to be received by
the Corporation for the total number of Additional Shares of Common Stock so issued would purchase
at such Conversion Price; and (B) the denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issue plus the number of such Additional Shares of
Common Stock so issued; provided that, for the purpose of this Subsection 4(d)(iv),
all shares of Common Stock issuable upon conversion of the Preferred Stock outstanding immediately
prior to such issue shall be deemed to be outstanding.



               (v) Determination of Consideration. For purposes of this Subsection 4(d), the
consideration received by the Corporation for the issue of any Additional Shares of Common Stock
shall be computed as follows:



                    (A) Cash and Property: Such consideration shall:




	 	(I)	 	insofar as it
consists of cash, be computed at the aggregate amount of
cash received by the Corporation, excluding amounts paid
or payable for accrued interest;
	 
	 	(II)	 	insofar as it
consists of property other than cash, be computed at the
fair market value thereof at the




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	 	 	 	time of such issue, as determined in good faith by
the Board of Directors of the Corporation; and
	 
	 	(III)	 	in the event
Additional Shares of Common Stock are issued together
with other shares or securities or other assets of the
Corporation for consideration which covers both, be the
proportion of such consideration so received, computed
as provided in clauses (I) and (II) above, as determined
in good faith by the Board of Directors of the
Corporation.





                    (B) Options and Convertible Securities. The consideration per share received by the
Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Subsection
4(d)(iii), relating to Options and Convertible Securities, shall be determined by dividing




	 	(I)	 	the total amount,
if any, received or receivable by the Corporation as
consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate
amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment
of such consideration) payable to the Corporation upon
the exercise of such Options or the conversion or
exchange of such Convertible Securities, or in the case
of Options for Convertible Securities, the exercise of
such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities,
by
	 
	 	(II)	 	the maximum
number of shares of Common Stock (as set forth in the
instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment
of such number) issuable upon the exercise of such
Options or the conversion or exchange of such
Convertible Securities.





               (vi) Multiple Closing Dates. In the event the Corporation shall issue on more than
one date Additional Shares of Common Stock which are comprised of shares of the same series or
class of Preferred Stock and which result in an adjustment to the Conversion Price pursuant to the
terms of Subsection 4(d)(iv) above, and such issuance dates occur within a period of no more than
120 days, then, upon the final such issuance, the Conversion Price shall be readjusted to give
effect to all such issuances as if they occurred on the date of the final such issuance (and
without giving effect to any adjustments as a result of such prior issuances within such period).



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          (e) Adjustment for Stock Splits and Combinations. If the Corporation shall at any
time or from time to time after the Original Issue Date effect a subdivision of the outstanding
Common Stock or combine the outstanding shares of Preferred Stock, the Conversion Price in effect
immediately before that subdivision or combination shall be proportionately decreased. If the
Corporation shall at any time or from time to time after the Original Issue Date combine the
outstanding shares of Common Stock or effect a subdivision of the outstanding shares of Preferred
Stock, the Conversion Price in effect immediately before the combination or subdivision shall be
proportionately increased. Any adjustment under this paragraph shall become effective at the close
of business on the date the subdivision or combination becomes effective.




          (f) Adjustment for Certain Dividends and Distributions. In the event the Corporation
at any time, or from time to time after the Original Issue Date shall make or issue, or fix a
record date for the determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in each such event the
Conversion Price in effect immediately before such event shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the close of business on
such record date, by multiplying the Conversion Price then in effect by a fraction:




          (1) the numerator of which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of business on such record
date, and




          (2) the denominator of which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of business on such record
date plus the number of shares of Common Stock issuable in payment of such dividend or
distribution;



provided, however, that if such record date shall have been fixed and such dividend is not fully
paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price
shall be recomputed accordingly as of the close of business on such record date and thereafter the
Conversion Price shall be adjusted pursuant to this paragraph as of the time of actual payment of
such dividends or distributions; and provided further, however, that no such adjustment shall be
made if the holders of Preferred Stock simultaneously receive (i) a dividend or other distribution
of shares of Common Stock in a number equal to the number of shares of Common Stock as they would
have received if all outstanding shares of Preferred Stock had been converted into Common Stock on
the date of such event or (ii) a dividend or other distribution of shares of Preferred Stock which
are convertible, as of the date of such event, into such number of shares of Common Stock as is
equal to the number of additional shares of Common Stock being issued with respect to each share of
Common Stock in such dividend or distribution.




          (g) Adjustments for Other Dividends and Distributions. In the event the Corporation
at any time or from time to time after the Original Issue Date shall make or issue, or fix a record
date for the determination of holders of Common Stock entitled to receive, a dividend or other
distribution payable in securities of the Corporation (other than shares of Common Stock) or in
cash or other property, then and in each such event provision shall be made so that the holders of
the Preferred Stock shall receive upon conversion thereof, in addition



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to the number of shares of Common Stock receivable thereupon, the kind and amount of
securities of the Corporation, cash or other property which they would have been entitled to
receive had the Preferred Stock been converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event to and including the conversion
date, retained such securities receivable by them as aforesaid during such period, giving
application to all adjustments called for during such period under this paragraph with respect to
the rights of the holders of the Preferred Stock; provided, however, that no such provision shall
be made if the holders of Preferred Stock receive, simultaneously with the distribution to the
holders of Common Stock, a dividend or other distribution of such securities, cash or other
property in an amount equal to the amount of such securities, cash or other property as they would
have received if all outstanding shares of Preferred Stock had been converted into Common Stock on
the date of such event.




          (h) Adjustment for Merger or Reorganization, etc. Subject to the provisions of
Subsection 2(c), if there shall occur any reorganization, recapitalization, reclassification,
consolidation or merger involving the Corporation in which the Common Stock (but not the Preferred
Stock) is converted into or exchanged for securities, cash or other property (other than a
transaction covered by paragraphs (e), (f) or (g) of this Section 4), then, following any such
reorganization, recapitalization, reclassification, consolidation or merger, each share of
Preferred Stock shall be convertible 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 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 4
with respect to the rights and interests thereafter of the holders of the Preferred Stock to the
end that the provisions set forth in this Section 4 (including provisions with respect to changes
in and other adjustments of the 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 Preferred Stock.




          (i) Certificate as to Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Price pursuant to this Section 4, the Corporation at its expense
shall, as promptly as reasonably practicable but in any event not later than 10 days thereafter,
compute such adjustment or readjustment in accordance with the terms hereof and furnish to each
holder of Preferred Stock a certificate setting forth such adjustment or readjustment (including
the kind and amount of securities, cash or other property into which the 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 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 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 Preferred Stock.




          (j) Notice of Record Date. In the event:




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               (i) the Corporation shall take a record of the holders of its Common Stock (or other stock or
securities at the time issuable upon conversion of the Preferred Stock) for the purpose of
entitling or enabling them to receive any dividend or other distribution, or to receive any right
to subscribe for or purchase any shares of stock of any class or any other securities, or to
receive any other right; or



               (ii) of any capital reorganization of the Corporation, any reclassification of the Common
Stock of the Corporation, any consolidation or merger of the Corporation with or into another
corporation (other than a consolidation or merger in which the Corporation is the surviving entity
and its Common Stock is not converted into or exchanged for any other securities or property), or
any transfer of all or substantially all of the assets of the Corporation; or



               (iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the
Corporation,


then, and in each such case, the Corporation will send or cause to be sent to the holders of
Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend,
distribution or right, and the amount and character of such dividend, distribution or right, or
(ii) the effective date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the time, if any is to be
fixed, as of which the holders of record of Common Stock (or such other stock or securities at the
time issuable upon the conversion of the Preferred Stock) shall be entitled to exchange their
shares of Common Stock (or such other stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be sent at least 10 days prior to the
record date or effective date for the event specified in such notice.




          (k) Overall Cap on Common Stock Issuable. Notwithstanding anything contained in this
Certificate of Designations to the contrary, the number of shares of Common Stock issuable by the
Corporation upon conversion of the Preferred Stock and acquirable by the holders of the Preferred
Stock in such capacity, shall not exceed 19.99% of the number of shares of Common Stock outstanding
on the Original Issue Date, subject to appropriate adjustment for stock splits, stock dividends, or
other similar recapitalizations affecting the Common Stock (the “Maximum Common Stock Issuance”),
unless the issuance of shares hereunder in excess of the Maximum Common Stock Issuance shall first
be approved by the Corporation’s stockholders in accordance with applicable law and the By-laws and
Certificate of Incorporation of the Corporation. If at any point in time and from time to time, the
number of shares of Common Stock previously issued upon conversion of the Preferred Stock (“Issued
Shares”) together with the number of shares of Common Stock that would then be issuable in the
event of conversion of all shares of Preferred Stock then outstanding, would exceed the Maximum
Common Stock Issuance but for this Section 4(k), then the Corporation shall promptly call a
stockholders’ meeting to request shareholder approval for the issuance of Common Stock hereunder in
excess of the Maximum Common Stock Issuance. Following any approval by the stockholders of the
Additional Issuance (as defined below), each share of Preferred Stock then outstanding shall be
convertible into the number of shares of Common Stock determined pursuant to this Certificate of
Designations without regard to the limitations provided in this Section 4(k). Prior to any



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approval of such issuance in excess of the Maximum Common Stock Issuance (the “Additional
Issuance”) by the stockholders and subsequent to any refusal by the stockholders to approve such
issuance, each outstanding share of Preferred Stock shall be convertible into the number of shares
of Common Stock equal to (x)(A) the Maximum Common Stock Issuance minus (B) the Issued Shares,
divided by (y) the number of shares of Preferred Stock outstanding (the “Per Share Amount”), and
the issuance by the Corporation of the Per Share Amount of Common Stock with respect to each share
of Preferred Stock converted into Common Stock pursuant to Subsection 4(a) hereof shall be deemed
to fully satisfy the Corporation’s obligations with respect to the conversion of such Preferred
Stock and such Preferred Stock shall no longer be considered issued and outstanding for any
purpose. For avoidance of doubt, if the Corporation is required to call such a stockholders
meeting, it shall not be in breach of the terms of this Certificate of Designations if the
stockholders fail to approve such issuance.




     5. Redemption.



          (a) Optional Redemption; Redemption Request. On or after September 1, 2011, any
holder of Preferred Stock may deliver to the Corporation a written request (a “Redemption Request”)
to have the shares of Preferred Stock specified in such Redemption Request be redeemed by the
Corporation at the Redemption Price (as defined below). The “Redemption Price” for each share of
Preferred Stock shall equal the aggregate of (i) $25 per share (subject to appropriate adjustment
in the event of any stock dividend, stock split, combination or other similar recapitalization
affecting such shares)(the “Original Issue Price”), plus (ii) all declared but unpaid dividends
thereon, plus (iii) an amount computed at a rate per annum of 7% of the Original Issue Price from
the Original Issue Date until the Redemption Date, computed on the basis of a year of 365 days for
the actual number of days elapsed, and shall be payable on the Redemption Date (as defined below).
In the event that the Corporation does not have sufficient funds legally available to redeem on the
Redemption Date all shares of Preferred Stock to be redeemed on such Redemption Date, the
Corporation shall redeem a pro rata portion of each holder’s shares of such stock, based on the
respective amounts which would otherwise be payable in respect of the shares to be redeemed if the
legally available funds were sufficient to redeem all such shares, out of funds legally available
therefor and shall redeem the remaining shares to have been redeemed as soon as practicable after
the Corporation has funds legally available therefor.




          (b) Redemption Notice. Within 5 days of the receipt of a Redemption Request, the
Corporation shall deliver written notice (the “Redemption Notice”) of the Redemption Request to all
of the holders of Preferred Stock, identifying the holder that delivered the Redemption Request and
the number of shares of Preferred Stock specified therein, as well as the proposed date of the
redemption, which shall be established by the Corporation in its sole discretion and shall be no
less than 30 days or more than 60 days after the Corporation’s receipt of the Redemption Request
(the “Redemption Date”). By notification to the Corporation within 15 days after the Corporation
distributes the Redemption Notice, any holder of Preferred Stock may elect to have its shares
redeemed on the Redemption Date. The Redemption Notice shall be mailed, postage prepaid, to each
holder of record of Preferred Stock, at its post office address last shown on the records of the
Corporation, or given by electronic communication in compliance with the provisions of the Delaware
General Corporation Law, not less than 30 days prior to the Redemption Date. Each Redemption
Notice shall state:




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	 	(I)	 	the identity of
the stockholder that delivered the Redemption Request;
	 
	 	(II)	 	the number of shares of Preferred Stock specified in the Redemption
Request;
	 
	 	(III)	 	the Redemption
Date;
	 
	 	(IV)	 	the Redemption
Price;
	 
	 	(V)	 	the date upon
which the holder’s right to convert such shares
terminates (as determined in accordance with Section
4(a)); and
	 
	 	(VI)	 	that the holder
is to surrender to the Corporation, in the manner and at
the place designated, his certificate or certificates
representing the shares of Preferred Stock to be
redeemed.





          (c) Surrender of Certificates; Payment. On or before the applicable Redemption Date,
each holder of shares of Preferred Stock to be redeemed on such Redemption Date, unless such holder
has exercised his right to convert such shares as provided in Section 4 hereof, shall surrender the
certificate or certificates representing such shares to the Corporation, in the manner and at the
place designated in the Redemption Notice, and thereupon the applicable 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, and each surrendered certificate shall be canceled and retired.
In the event less than all of the shares of Preferred Stock represented by a certificate are
redeemed, a new certificate representing the unredeemed shares of Preferred Stock, as the case may
be, shall promptly be issued to such holder.




          (d) Rights Subsequent to Redemption. If the Redemption Request shall have been duly
given, and if on the applicable Redemption Date the Redemption Price payable upon redemption of the
shares of Preferred Stock to be redeemed on such Redemption Date is paid or tendered for payment,
then notwithstanding that the certificates evidencing any of the shares of Preferred Stock so
called for redemption shall not have been surrendered, dividends with respect to such shares of
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 without interest upon surrender of their certificate or
certificates therefor.




          (e) Redeemed or Otherwise Acquired Shares. Any shares of Preferred Stock which are
redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically
and immediately canceled and shall not be reissued, sold or transferred as shares of Preferred
Stock. Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights
granted to the holders of Preferred Stock following redemption.




          (f) Other Redemptions or Acquisitions. Neither the Corporation nor any subsidiary
shall redeem or otherwise acquire any shares of Preferred Stock, except (i) as



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expressly authorized herein, (ii) with the written consent of the holders of at least a
majority of the then outstanding shares of Preferred Stock, or (iii) pursuant to a purchase offer
made pro rata to all holders of Preferred Stock on the basis of the number of shares of Preferred
Stock owned by each such holder.




     6. Waiver. Any of the rights of the holders of Preferred Stock set forth herein may
be waived by the affirmative consent or vote of the holders of shares of Preferred Stock
representing at least a majority of the votes represented by the shares of Preferred Stock then
outstanding, considered as a single class, provided such waiver by its terms is equally applicable
to the holders of Preferred Stock. Any of the rights of the holders of Preferred Stock set forth
herein may be waived (in a manner that does not apply to the holders of Preferred Stock) by the
affirmative consent or vote of the holders of at least a majority of the shares of Preferred Stock
then outstanding. Any of the rights of the holders of Preferred Stock set forth herein may be
waived (in a manner that does not apply to the holders of Preferred Stock) by the affirmative
consent or vote of the holders of at least a majority of the shares of Preferred Stock then
outstanding.



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     IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations, Rights and
Preferences to be signed by its Executive Vice President this 19th day of March, 2009.



	 	 	 	 	 
	 	Alseres Pharmaceuticals, Inc.

 	 
	 	By:  	/s/ Kenneth L. Rice
 	 
	 	 	Executive Vice President 	 
	 	 	 	 
	 




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