| **Exhibit 3.4** |
|-----------------|

 

**CERTIFICATE OF AMENDMENT**

 

**OF**

 

**CERTIFICATE OF INCORPORATION**

 

**OF**

 

**DIGITAL ANGEL CORPORATION**

 

Digital Angel Corporation (f/k/a Medical Advisory Systems, Inc.), acorporation organized and existing under and by virtue of the GeneralCorporation Law of the State of Delaware, DOES HEREBY CERTIFY:

 

FIRST:  That the Board of Directors of Digital AngelCorporation (the “Corporation”) duly adopted resolutions setting forth aproposed amendment to the Certificate of Incorporation of the Corporation, declaringsaid amendment to be advisable and directing that the proposed amendment besubmitted to the stockholders of the Corporation for approval.  The resolution setting forth the proposedamendment is as follows:

 

RESOLVED, that the Board of Directors of the Corporation herebydeclares that it would be advisable to amend the Certificate of Incorporationof the Corporation by adding a new Article Ninth, as follows, and herebydirects that the proposed amendment be submitted to the stockholders of theCorporation for approval:

 

“NINTH:  The Corporation shall not take any of the followingactions without the approval of the holders of 66.6% of the issued andoutstanding common stock of the Corporation:

 

(i)            implementing aBankruptcy Decision with respect to the Corporation or any of its direct orindirect subsidiaries if, at the time such Bankruptcy Decision is implementedor is to be implemented, (A) a Bankruptcy Decision has been made with respectto Applied Digital Solutions, Inc., a corporation organized under the laws ofMissouri (“ADS”), or any of its direct or indirect subsidiaries, or (B) ADS isin default under or with respect to any obligation for borrowed money,including the Credit Documents, regardless of whether such default has beendeclared; and

 

(ii)           approving anyissuance of Corporation Stock (or securities of any of its direct or indirectsubsidiaries) or securities convertible into or exercisable for CorporationStock (or securities of any of its direct or indirect subsidiaries), includingoptions or warrants for Corporation Stock (or securities of any of its director indirect subsidiaries), for (A) non–cash consideration or (B) cashconsideration of less than Fair Market Value.

 

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For the purposes of items (i) and (ii) above, the following definedterms shall have the following meanings:

 

“Bankruptcy Decision” means, with respect to a specified entity,any of the following actions:  (i)filing any voluntary petition in bankruptcy on behalf of such entity, (ii)consenting to the filing of any involuntary petition in bankruptcy against suchentity, (iii) filing any petition seeking, or consenting to, reorganization orrelief under any applicable federal, state or foreign law relating to bankruptcyor insolvency, on behalf of such entity, (iv) consenting to the appointment ofa receiver, liquidator, assignee, trustee, sequestrator (or other similarofficial) of such entity or a substantial part of the property of such entity,(v) making any assignment for the benefit of creditors on behalf of suchentity, (vi) admitting in writing the inability of such entity to pay its debtsgenerally as they become due, or (vii) taking any action by such entity infurtherance of any of the foregoing actions.

 

“Corporation Stock” means the common stock, par value $.005 pershare, of the Corporation, and any stock into which such common stock shallhave been changed, any stock resulting from any reclassification of such commonstock, any other shares of stock issued or issuable with respect thereto(whether by way of a stock dividend or stock split or in exchange for or uponconversion of such shares or otherwise in connection with a combination ofshares, recapitalization, merger, consolidation or other corporate reorganization),and all other stock of any class or classes (however designated) of theCorporation (or its successors) the holders of which have the right, withoutlimitation as to amount, either to all or to a share of the balance of currentdividends and liquidating dividends after the payment of dividends anddistributions on any shares entitled to preference.

 

“Credit Agreement” means that certain Third Amended and RestatedTerm Credit Agreement, dated as of March 1, 2002, among IBM Credit Corporation,Digital Angel Share Trust and ADS.

 

“Credit Documents” means the Credit Agreement, the Guarantee (asdefined in the Credit Agreement), and any security agreements, leases,instruments, documents, guarantees, schedules of assignment, contracts andsimilar agreements, including schedules, attachments, exhibits and ancillarydocumentation or other supporting documents, executed by or on behalf of eachBorrower (as defined in the Credit Agreement), or any other Loan Party (asdefined in the Credit Agreement), and delivered to Lender (as defined in theCredit Agreement), pursuant to the Credit Agreement or otherwise, and allamendments, supplements and other modifications to the foregoing from time totime.

 

“Fair Market Value” means, on any date specified, the average ofthe daily Market Price of a share of Corporation Stock during the 10consecutive trading days before such date, except that, if on any such date theshares of Corporation Stock are not listed or admitted for trading on anynational securities exchange or quoted in the over–the–countermarket, Fair Market Value shall be the Market Price on such date.

 

“Market Price” means, on any date specified, an amount per shareof Corporation Stock equal to (i) the last reported sale price of such commonstock, regular way, on such date or, in 

 

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caseno such sale takes place on such date, the average of the closing bid and askedprices thereof regular way on such date, in either case as officially reportedon the principal national securities exchange on which such Corporation Stockis then listed or admitted for trading, (ii) if such Corporation Stock is notthen listed or admitted for trading on any national securities exchange but isdesignated as a national market system security by the NASD, the last reportedtrading price of the Corporation Stock on such date, (iii) if there shall havebeen no trading on such date or if the Corporation Stock is not so designated,the average of the closing bid and asked prices of the Corporation Stock onsuch date as shown by the NASD automated quotation system, or (iv) if suchCorporation Stock is not then listed or admitted for trading on any nationalexchange or quoted in the over–the–counter market, the fair valuethereof (as of a date which is within 10 days of the date as of which thedetermination is to be made) determined in good faith by the Corporation’sBoard of Directors.”

 

SECOND:  That thereafter, pursuant to resolution of its Boardof Directors, the proposed amendment was submitted to the stockholders of theCorporation and that the necessary number of shares required by statuteconsented to the adoption of the amendment by written consent pursuant to theprovisions of Delaware General Corporation Law Section 228.

 

THIRD:  That prompt written notice of the adoption of theamendment to the Corporation’s Certificate of Incorporation was sent to allstockholders of record who had not consented in writing as provided in Delaware General Corporation LawSection 228(e).

 

FOURTH:  That said amendment was duly adopted in accordancewith the provisions of Section 242 of the Delaware General Corporation Law.

 

IN WITNESS WHEREOF, said Digital Angel Corporation has caused thiscertificate to be signed by Randolph K. Geissler, its President and James P.Santelli, its Secretary, this 26th day of March, 2002.

 

 
|   |   | By:    | /s/  Randolph K. Geissler |
|--------|--------|--------|--------------------------------|
|   |   | Name:  | Randolph  K. Geissler          |
|   |   |   | President                      |

 
| ATTEST: |                        |
|---------|-----------------------------|
| By:     | /s/  James P. Santelli |   |
| Name:   | James  P. Santelli          |   |
|    | Secretary                   |   |

 

 

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