UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14C
INFORMATION
STATEMENT PURSUANT TO SECTION 14(c)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Check
the
appropriate box:
o
Preliminary
Information Statement
o
Confidential,
for
Use of the Commission Only (as permitted by Rule 14(c)-5(d)(2))
x
Definitive
Information
Statement
INTERPHARM
HOLDINGS, INC.
(Name
of
the Registrant as Specified in its Charter)
Payment
of Filing Fee (Check the appropriate box):
x
No
Fee Required
o
Fee
Computed on table below per
Exchange Act Rules 14c-5(g) and 0-11.
1.
Title
of each class of securities to which transaction applies:
2.
Aggregate number of securities to which transaction applies:
3.
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
4.
Proposed aggregate value of transaction:
5.
Total
fee paid:
o
Fee
paid previously with
preliminary materials.
o
Check
box is any part of the fee
is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing
for which the offsetting fee was paid previously. Identify the previous filing
by registration statement number, or the Form or Schedule and the date of its
filing.
1.
Amount
previously paid:
2.
Form,
schedule, or registration statement number:
3.
Filing
party:
4.
Date
filed:
INFORMATION
STATEMENT
June 26,
2006
INTERPHARM
HOLDINGS, INC.
GENERAL
This
Information Statement is being distributed pursuant to Rule 14c-2 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") to the holders
of record at the close of business on May 25, 2006 (the “Record Date") of the
Common Stock, par value $.01 per share ("Common Stock"), of Interpharm Holdings,
Inc., a Delaware corporation (the "Company"), as well as the holders of record
on the Record Date of the following series of the Company’s Preferred Stock: the
Series A 10% Cumulative Convertible Preferred Stock, par value $.01 per share
(“Series A Preferred”); the Series B Convertible Preferred Stock, par value $.01
per share (the “Series B Preferred”); and the Series C Convertible Preferred
Stock, par value $.01 per share (the “Series C Preferred”). The Information
Statement informs stockholders of actions to approve the following amendments
to
the Certificate of Incorporation of the Company (the “Charter Amendments”) taken
and approved on May 25, 2006 by the holders of (a) voting stock of the Company
holding shares entitling such holders to cast more than a majority of the votes
entitled to be cast with respect to such actions, (b) a majority of the
outstanding shares of Series A Preferred and (c) more than two-thirds of the
outstanding shares of Series B:
|
·
|
to
increase the authorized number of shares of Common Stock from 70
million
to 150 million;
|
|
·
|
to
amend the powers, designation, preferences and rights of the Series
A
Preferred to provide that immediately upon filing of a Certificate
of
Amendment of the Certificate of Incorporation of the Company regarding
such matter, each outstanding share of Series A Preferred shall be
automatically converted into two shares of Common Stock; and
|
|
·
|
to
amend the powers, designation, preferences and rights of the Series
B
Preferred to provide that immediately upon the filing of a Certificate
of
Amendment of the Certificate of Incorporation of the Company regarding
such matter, each outstanding share of Series B Preferred shall be
automatically converted into one share of Common
Stock.
|
A
copy of
the Written Consent of Stockholders approving the foregoing actions is attached
to this Information Statement as Exhibit A.
The
Amendments will not become effective until the filing with the Office of the
Secretary of State of Delaware of a Certificate of Amendment to the Company’s
Certificate of Incorporation at least 20 days after the date of the mailing
of
this Information Statement to the Company’s stockholders. Instead of a
Certificate of Amendment to the Certificate of Incorporation, the Company may
file an Amended and Restated Certificate of Incorporation which will include
the
Amendments and, in addition, eliminate from the Company’s Certificate of
Incorporation all matters relating to the Series A Preferred, Series B Preferred
and certain other series of the Company’s preferred stock which have been
previously designated, but of which no shares shall then be outstanding.
THIS
IS NOT A NOTICE OF A SPECIAL MEETING OF STOCKHOLDERS AND NO STOCKHOLDER MEETING
WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN. WE ARE NOT ASKING YOU
FOR
A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
Record
Date; Outstanding Shares; Votes Approving Amendments
As
of the
record date of May 25, 2006, the number of shares of each class of the Company’s
voting stock outstanding was as follows:
|
o
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63,837,482
shares of Common Stock,
|
|
o
|
7,611
shares of Series A Preferred,
|
|
o
|
1,458
shares of Series B Preferred, and
|
|
o
|
279,208
shares of Series C Preferred.
|
Each
share of our Common Stock, Series A Preferred, Series B Preferred and Series
C
Preferred is entitled to one vote on all matters and votes together with all
other classes of our stock as a single class, except that the Certificate of
Powers, Designation, Preferences and Rights of the Series B Preferred provides
that the approval of the holders of at least two-thirds of the outstanding
shares of Series B Preferred, voting as a separate class, is necessary to among
other things, alter, or change any of the powers, preferences, privileges or
rights of the Series B Preferred and the Certificate of Powers, Designations,
Preferences and Rights of the Series A Preferred provides that the approval
of
the holders of a majority of the outstanding shares of Series A, voting
separately as a class, is required to approve any amendment of the provisions
of
the Company’s Certificate of Incorporation which would adversely affect the
powers, preferences or special rights of the Series A. In addition, Section
242
of the Delaware General Corporation Law requires that the holders of the
outstanding shares of a class shall be entitled to vote as a class upon a
proposed amendment to the Certificate of Incorporation, if the amendment would
alter or change the powers, preferences, or special rights of the shares of
such
class so as to affect them adversely.
The
holders of the number of shares of the class or series of the Company’s stock
set forth below have signed written consents approving the Charter
Amendments.
Class
or Series
|
Votes
Approving
Amendments
|
Total
Outstanding
Shares
of Such
Class
or Series
|
Percentage
of
Total
Shares of
Such
Class or
Series
Approving
Amendments
|
Common
Stock
|
50,074,605
|
63,837,482
|
78.4%
|
Series
A Preferred
|
3,875
|
7,611
|
50.9%
|
Series
B Preferred
|
1,458
|
1,458
|
100%
|
Based
on
the foregoing, the requisite votes to approve the Amendments of the holders
of
each class or series of the Company’s stock entitled to vote on such Amendments,
voting as separate classes as well as voting together as a single class, have
been obtained.
Introduction
On
May
30, 2003, the Company effected a reverse merger transaction with Interpharm,
Inc., its present wholly owned subsidiary. Prior to the reverse merger, at
various points during the Company’s history, it had issued various series of
preferred stock. Of those preferred series, five currently remain outstanding:
Series A Stock, Series B Stock, Series C Stock, Series A-1 Convertible Preferred
Stock and Series B-1 Convertible Preferred Stock. Of those remaining series
of
preferred stock, the Series A Stock and Series B Stock have various
designations, preferences and rights which are, by their terms, superior to
any
later issued series of preferred stock and are therefore, an impediment to
the
Company raising necessary equity capital. Specifically, the Series A Preferred
and Series B Preferred have a liquidation preference superior to other series
of
preferred stock and the Series A Preferred also has a preference with respect
to
payment of dividend payments over other securities of the Company, to the extent
such dividends are declared by the Company’s Board of Directors.
On
May
15, 2006, the Company entered into a Securities Purchase Agreement (the
“Agreement”) with Tullis-Dickerson Capital Focus III, L.P. (the “Buyer”), which
it closed on May 26, 2006. Under the Agreement, the Company issued and sold
to
the Buyer, and the Buyer purchased from the Company, for a purchase price of
$10
million, an aggregate of 10,000 shares of a newly designated series of the
Company’s preferred stock (the “Series B-1 Stock”), together with 2,281,914
warrants to purchase shares of common stock of the Company with an exercise
price of $1.639 per share. The warrants have a five year term. A copy of the
Agreement is annexed to the Company’s Current Report on Form 8-K filed with the
SEC on May 19, 2006.
One
of
the conditions of the Agreement is that the outstanding shares of Series A
Preferred and Series B Preferred be converted into the Company’s Common Stock.
Therefore, the Company obtained the consent of the sole holder of the Series
B
Preferred and the holder of a majority of the Series A Preferred to make all
of
the Series A Preferred and Series B Preferred immediately convertible into
the
Company’s Common Stock.
Another
condition of the Agreement is that the Company increase its authorized common
share capital to 150,000,000 shares. An increase in the Company’s authorized
common share capital is necessary because the Company’s current authorized
common share capital of 70,000,000 shares will be insufficient under the terms
of the Agreement because:
|
1.
|
As
a result of the conversion of the Series K Convertible Preferred
Stock in connection with closing of the Agreement, the Company
currently has 63,837,482 shares of Common Stock
outstanding;
|
|
2.
|
The
Company currently has options and warrants to purchase an aggregate
of 15,073,784 of Common Stock outstanding, including warrants to
purchase an agreegate of 2,281,914 shares issued to the Buyer under
the
Agreement
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|
3.
|
The
Series B-1 Stock and warrants sold to the Buyer are convertible and/or
exercisable for approximately 8,816,856 shares of common
stock. In the event that an additional $5 million is invested
under the Agreement at a second closing the additional B-15 Stock
which
would be issued at the second closing would be convertible into or
exercisable for an additional 4,408,428 shares of common stock;
and
|
|
4.
|
Pursuant
to the Agreement and the agreed upon terms for the Series B-1 Stock,
the
Company may, at its option, pay the dividends on the Series B-1 Stock
in
common stock.
|
THE
CHARTER AMENDMENTS
Reasons
for the Charter Amendment to Increase the Authorized Shares of Common
Stock
The
amendment to the Company’s Certificate of Incorporation to increase the number
of authorized shares of the Company’s Common Stock from 70 million to 150
million shares is being effected so that there will be a sufficient number
of
authorized, but unissued shares of Common Stock of the Company: (i) to issue
upon the conversion of all of the Series B-1 Convertible Preferred Stock and
the
exercise of Warrants issued to the Investors pursuant to the Agreement; (ii)
to
issue in payment of dividends on the Series B-1 Stock; (iii) to issue upon
conversion of the Series A Preferred and the Series B Preferred; and (iv) for
other corporate purposes of the Company, including to have authorized shares
of
Common Stock available to meet future commitments or financing. Other than
for purposes specifically described in this Information Statement, the Company
does not currently have any plans to issue additional shares of its common
stock.
The
increase in authorized shares of Common Stock will not have any immediate effect
on the rights of existing stockholders. However, our Board of Directors will
have the authority to issue authorized shares without requiring future
stockholder approval of such issuances, except as may be required by our amended
Certificate of Incorporation and applicable law and regulations. To the extent
that the additional authorized shares are issued in the future, they will
decrease the existing stockholders’ percentage equity ownership and, depending
upon the price at which they are issued as compared to the price paid by
existing stockholders for their shares, could be dilutive to the Company’s
existing stockholders. The holders of Common Stock have no preemptive rights
to
subscribe for or purchase any additional shares of Common Stock that may be
issued in the future.
The
increase in the authorized number of shares and the subsequent issuance of
such
shares could have the effect of delaying or preventing any change in control
of
the Company without further action by the stockholders. Authorized and unissued
shares could (within the limits imposed by applicable law) be issued in one
or
more transactions that would make any change in control of the Company more
difficult, and therefore less likely. Any such issuance of additional stock
could have the effect of diluting the earnings per share and book value per
share of outstanding shares, and such additional shares could be used to dilute
the stock ownership or voting rights of a person seeking to obtain control
of
us. Our Board of Directors are not aware of any attempt to take control of
us
and have not presented this proposal with the intention that the increase in
the
authorized shares of common stock be used as a type of anti-takeover
device.
Reasons
for the Charter Amendments to Provide for Automatic Conversion of Series A
Preferred and Series B Preferred into Common Stock
The
Company believes that it is in the best interests of the Company and the holders
of the Series A Preferred and the Series B Preferred to provide for the
conversion of all outstanding shares of each of such series into Common Stock
and to eliminate such series of preferred stock from the authorized capital
stock of the Company.
The
following is a summary of the designations, preferences and rights of the Series
A Preferred and Series B Preferred, which is qualified, in its entirety, by
the
Certificates of Powers, Designations, Preferences and Rights for the Series
A
Preferred and Series B Preferred. Such summary gives effect to certain
adjustments made in connection with a 1 for 10 reverse stock split of the Series
A Preferred effected in September 1994.
Series
A
Preferred
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-
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Title.
Series A 10% Cumulative Convertible Preferred Stock, $.01 par
value.
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|
-
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Voting.
The Series A Preferred is entitled to one vote per share, voting
together
as a class with the holders of our Common Stock; provided, however,
that.
The Company may not without the affirmative consent of the holders
of a
majority of the outstanding shares of Series A Preferred, voting
separately as a class, amend any of the provisions of the Company’s
Certificate of Incorporation so as to adversely affect the powers,
preferences or special rights of the shares of the Series A Preferred
or
merge or consolidate with or into any other corporation if such merger
or
consolidation would adversely affect the powers, preferences or rights
of
the shares of the Series A
Preferred.
|
|
-
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Liquidation
Preference. For each share of Series A Preferred, an amount equal
to $100
plus all accrued and unpaid dividends on the Series A Preferred (which
amount is currently approximately $110 per share) must be paid to
holders
of Series A Preferred before any payments or distributions are made
on any
shares of the Company’s stock ranking junior to the Series A Preferred on
liquidation.
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-
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Dividend
Rights. Cumulative cash dividends at an annual rate of $10 shall
accrue on
February 10 of each year whether or not declared, and are not paid
unless
and until declared by the Company’s Board of Directors. The dividends have
not been declared or paid since 1994. If accrued dividends with respect
to
any previous dividend period have not been paid on, and set apart
for all
shares of Series A Preferred at the time outstanding, the deficiency
shall
be fully paid on, declared and set apart for such shares of Series
A
Preferred before any distribution is made on any shares of the Company’s
stock ranking junior to the Series A Preferred as to
dividends.
|
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-
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Redemption
Provisions. The Company has the right to redeem all or a portion
of the
outstanding shares of Series A Preferred for $100 per share plus
all
accrued and unpaid dividends on the Series A Preferred (which amount
is
currently approximately $110 per share) if either (a) the closing
price of
the Common Stock equals or exceeds $120.00 for twenty consecutive
trading
days within 30 days of the date the Company sends a notice of redemption
or (b) less than 40,000 shares of Series A Preferred are outstanding
when
the notice of redemption is given.
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-
|
Amount
Authorized. 29,233 shares.
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|
-
|
Amount
Outstanding. 7,611
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|
-
|
Conversion.
Each share of Series A Preferred is convertible at the option of
the
holder into shares of Common Stock at the conversion rate in effect
at the
time the holder elects to convert. The conversion rate is subject
to
adjustment upon the occurrence of certain events, including, among
other
things, subdivisions or combinations of the Company’s Common Stock, the
payment by the Company of stock dividends on the Common Stock, and
the
issuance of shares of Common Stock for a consideration below an amount
calculated under a formula. As of June 2, 2006 the conversion rate
was
approximately 1.6 shares of Common Stock for each share of Series
A
Preferred.
|
Series
B
Preferred
|
-
|
Title.
Series B Convertible Preferred Stock, $.01 par
value.
|
|
-
|
Voting
and Consent Rights. The Series B Preferred is entitled to one vote
per
share, voting together as a class with the holders of our Series
A
Preferred and Common Stock; provided, however, that the Company may
not
without the affirmative consent of the holders of a majority of the
outstanding shares of Series B Preferred, voting separately as a
class,
amend any of the provisions of the Company’s Certificate of Incorporation
so as to adversely affect the powers, preferences or special rights
of the
shares of the Series B Preferred. In addition, so long as the Series
B
Preferred is outstanding, without the written consent of the holders
of at
least two-thirds of the outstanding shares of the Series B Preferred,
voting separately as a class, the Company may not (a) alter or change
any
of the powers, preferences, privileges or rights of the Series B
Preferred, (b) amend the provisions of the certificate of designations
of
the Series B Preferred relating to this consent right, (c) create
any new
class or series of shares having preferences prior to or on a parity
with
the Series B Preferred as to dividends or assets or (d) sell, lease,
convey, exchange, transfer or otherwise dispose of all or substantially
all of its assets, (e) merge or consolidate with or into another
corporation, except a wholly owned subsidiary of the Company, (f)
issue
any shares of Common Stock or securities convertible into or exercisable
for Common Stock, (g) avoid or seek to avoid the performance of any
of the
terms to be performed or observed by the Company under the certificate
of
designations of the Series B
Preferred.
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-
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Liquidation
Preference. For each share of Series B Preferred, an amount equal
to $1.00
must be paid to holders of Series A Preferred before any payments
or
distributions are made on any shares of the Company’s stock ranking junior
to the Series B Preferred on
liquidation.
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-
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Redemption
Provisions. Neither the Company nor any holder of shares of Series
B
Preferred has the right to redeem pr cause the redemption of shares
of
Series B Preferred
|
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-
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Amount
Authorized. 12,704
|
|
-
|
Amount
Outstanding. 1,458
|
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-
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Conversion.
Each share of Series A Preferred is convertible at the option of
the
holder into one share of Common Stock.
|
Absence
of Dissenters’ Rights of Appraisal
Neither
the approval of, or making of, the Charter Amendments provides to any
stockholder any right to dissent and obtain appraisal of or payment for such
stockholder's shares under the Delaware General Corporation Law or the
Certificate of Incorporation or the Bylaws of the Company.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS
AND MANAGEMENT
The
following table sets forth as of June 6, 2006, certain information with respect
to the beneficial ownership of our voting securities by (i) any person known
by
the Company to be the beneficial owner of more than 5% of our voting securities,
(ii) each director of the Company, (iii) The Chief Executive Officer and each
of
the Company four most highly compensated executive officers other than the
chief
executive officer who were serving as executive officers as of June 30, 2005
and
(iv) all directors and executive officers as a group.
Name
and
Address
of
Beneficial
Owner
|
Title
of
Class
|
|
Amount
and
Nature
of
Beneficial
Ownership
|
Percent
of
Class
(1)
|
|
|
|
|
|
Maganlal
K. Sutaria
|
Common
Stock
|
|
643,500
(2)
|
1.00%
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
Rajs
Holdings I, LLC(3)
|
Common
Stock
|
|
15,526,100
(3)
|
24.34%
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
Bhupatlal
K. Sutaria
|
Common
Stock
|
|
404,000
(4)
|
*
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
Rametra
Holdings I, LLC
|
Common
Stock
|
|
8,014,930
(5)
|
12.57%
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
David
Reback
|
Common
Stock
|
|
25,773
(6)
|
*
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
Stewart
Benjamin
|
Common
Stock
|
|
17,273
(7)
|
*
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
Ravis
Holdings I, LLC
|
Common
Stock
|
|
10,518,645
(8)
|
16.49%
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
Perry
Sutaria
|
Common
Stock
|
|
44,093,771
(9)
|
69.13%
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
Kennith
Johnson
|
Common
Stock
|
|
27,500
|
*
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
Cameron
Reid
|
Common
Stock
|
|
3,000,000
(10)
|
4.49%
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
George
Aronson
|
Common
Stock
|
|
306,250
(11)
|
*
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
P&K
Holdings, LLC
|
Common
Stock
|
|
8,014,930
(12)
|
12.57%
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
Richard
S. Miller
|
Common
Stock
|
|
0
|
*
|
75
Adams Avenue
|
|
|
|
|
Hauppauge,
NY 11788
|
|
|
|
|
|
|
|
|
|
All
Directors and
|
Common
Stock
|
|
7,052,576(13)
|
10.27%
|
Officers
as a
|
|
|
|
|
Group
(9 persons)
|
|
|
|
|
*
Less
than 1%
(1)
Computed based upon a total of 63,837,482 shares of common stock outstanding
as
of June 6, 2006 and 7,438 shares of common stock into which the shares of
Series, A, B and C Preferred Stock of the Company outstanding as of June 6,
2006
are convertible.
(2)
The
foregoing figure reflects the ownership of 43,500 shares of common stock and
vested options to acquire 600,000 shares. It does not include non-vested options
to acquire 600,000 shares of common stock, 350,000 options held by his spouse
and 1,873,900 shares of Series A-1 Preferred Stock held by an annuity he
controls.
(3)
Raj
Sutaria is the sole member of Rajs Holdings I, LLC. The sole manager of Rajs
Holdings I, LLC is Perry Sutaria.
(4)
The
foregoing figure includes vested options to acquire 400,000 shares, but does
not
include non-vested options to acquire 400,000 shares of common stock and 400,000
options held by his spouse.
(5)
Mona
Rametra is the sole member of Rametra Holdings I, LLC. The sole manager of
Rametra Holdings I, LLC is Perry Sutaria.
(6)
The
foregoing figure includes vested options to acquire 24,773, but excludes
non-vested options to acquire 227 shares of common stock.
(7)
The
foregoing figure includes 17,273 shares of common stock which may be acquired
upon exercise of currently exercisable options and excludes non-vested options
to acquire an additional 2,727 shares of common stock.
(8)
Ravi
Sutaria is the sole member of Ravis Holdings I, LLC. The sole manager of Ravis
Holdings I, LLC is Perry Sutaria.
(9)
Includes an aggregate of 42,074,605 shares of common stock owned directly by
the
following New York limited liability companies of which Perry Sutaria is the
sole manager: P&K Holdings, LLC; Rajs Holdings I, LLC; Ravis Holdings I,
LLC; and Rametra Holdings I, LLC. Does not include his beneficial interest
in
Series A-1 Preferred Stock held by a trust of which he is a
beneficiary.
(10)
The
foregoing figure includes options to purchase 3,000,000 shares of common stock.
(11)
The
foregoing figure includes vested options to acquire 306,250 shares, but excludes
non-vested options to acquire 93,750 shares of common stock which are subject
to
several performance criteria.
(12)
Perry Sutaria is the sole member and manager of P&K Holdings, LLC.
(13)
The
foregoing figure includes vested options to acquire an aggregate of 4,820,796
shares, but does not include non-vested options to acquire an aggregate of
1,671,704 shares of common stock, 400,000 options held by the spouse of one
executive officer and 1,873,900 shares of Series A-1 Preferred Stock held by
an
annuity controlled by one director.
RECOMMENDATION
OF THE BOARD OF DIRECTORS
Prior
to
their signing written
consents approving the Charter Amendments the Board of Directors of the Company
recommended to each of the stockholders who signed such consents that the
Charter Amendments be approved.
By
order
of the Board of Directors
June
26,
2006
/s/
Mary Demaio
Secretary
Exhibit
A
WRITTEN
CONSENT OF STOCKHOLDERS OF
INTERPHARM
HOLDINGS, INC. HAVING
REQUISITE
VOTING POWER TO APPROVE SPECIFIED ACTIONS
Adopted
May 25, 2006
THE
UNDERSIGNED, being the holders of (a) an aggregate of 18,700,730 shares of
Common Stock, $.01 par value (“Common Stock”), of Interpharm Holdings, Inc., a
Delaware corporation (the "Corporation”), and (b) an aggregate of 1,464,566
shares of Series K Convertible Preferred Stock, $.01 par value, of the
Corporation (“Series K Stock”), holding shares of Common Stock and Series K
Stock having collectively 50,074,605 of the 63,774,494 total votes that could
be
cast by the holders of Common Stock and Series K Stock voting as a single class
with respect to each of the following matters, (c) the holder of a 3,875 shares
of Series A 10% Cumulative Convertible Preferred Stock, $.01 par value, of
the
Corporation (“Series A Stock”), constituting a majority of the outstanding
shares of Series A Stock and (d) the holder of 1,458 shares of Series B
Convertible Preferred Stock, $.01 par value, of the Corporation (“Series B
Stock”), constituting all of the outstanding shares of Series B Stock, hereby
adopt the following resolutions by written consent pursuant to Section 228
of
the Delaware General Corporation Law, as if duly adopted at a duly called and
noticed meeting:
RESOLVED,
that the Certificate of Incorporation of the Corporation be amended in the
following respects:
A.
The
first paragraph of Article FOURTH of the Certificate of Incorporation of the
Corporation shall be amended to read in its entirety as follows:
“FOURTH:
The aggregate number of shares which the Corporation shall have authority to
issue is ONE HUNDRED AND SIXTY MILLION (160,000,000) of which ONE HUNDRED FIFTY
MILLION (150,000,000) shall be Common Stock, par value $.01 per share, and
TEN
MILLION (10,000,000) shall be Preferred Stock, par value $.01 per
share.”
B.
Effective immediately upon the filing of an Amended and Restated Certificate
of
Incorporation of the Corporation which shall give effect to the amendments
provided for herein or an amendment to the Certificate of Incorporation (the
“Amendment”), each outstanding share of the Corporation’s Series A 10%
Cumulative Convertible Preferred Stock, $.01 par value (“Series A Stock”) shall
be automatically converted into two shares of the Corporation’s Common Stock,
$.01 par value and, there then being no issued or outstanding shares of Series
A
Stock and it being the intention of the Board of Directors that no further
shares of Series A Stock will be issued subject to the Certificate of Powers,
Designations of the Series A Stock (the “Series A COD”), there shall be
eliminated from the Certificate of Incorporation of the Corporation all matters
set forth in the Certificate of Powers, Designations of the Series A Stock
with
respect to such series of stock.
C.
Effective immediately upon the filing of the Amendment, each outstanding share
of the Corporation’s Series B Convertible Preferred Stock, $.01 par value
(“Series B Stock”) shall be automatically converted into one share of the
Corporation’s Common Stock, $.01 par value and, there then being no issued or
outstanding shares of Series B Stock and it being the intention of the Board
of
Directors that no further shares of Series B Stock will thereafter be issued
subject to the Certificate of Powers, Designations of the Series B Stock (the
“Series B COD”), there shall be eliminated from the Certificate of Incorporation
of the Corporation all matters set forth in the Series B COD with respect to
such series of stock.
IN
WITNESS WHEREOF, the undersigned have executed this Written Consent on the
25th
day of
May, 2006.
HOLDERS
OF COMMON STOCK AND SERIES K STOCK
|
|
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|
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/s/ Mona
Rametra |
|
Mona
Rametra |
|
|
|
|
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/s/ Perry
Sutaria |
|
Perry
Sutaria |
|
|
|
|
|
/s/ Raj
Sutaria |
|
Raj
Sutaria |
|
|
|
|
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/s/ Ravi
Sutaria |
|
Ravi
Sutaria |
|
|
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P&K
HOLDINGS,
LLC |
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|
|
By: |
/s/ Perry
Sutaria |
|
Perry
Sutaria, Manager |
|
|
|
|
RAMETRA
HOLDINGS
I, LLC |
|
|
|
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By: |
/s/ Perry
Sutaria |
|
Perry
Sutaria, Manager |
|
|
|
|
RAJS
HOLDINGS I,
LLC |
|
|
|
|
By: |
/s/ Perry
Sutaria |
|
Perry
Sutaria, Manager |
|
|
|
|
RAVIS
HOLDINGS I,
LLC |
|
|
|
|
By: |
/s/ Perry
Sutaria |
|
Perry
Sutaria, Manager |
|
|
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HOLDER OF CLASS A STOCK |
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GUZOV
OFSINK,
LLC |
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By: |
/s/ Darren
Ofsink |
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Darren
Ofsink, Member |
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HOLDER
OF CLASS B
STOCK |
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By: |
/s/ Kenneth
Cappel |
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Kenneth
Cappel, as Attorney-in-
Fact
for Surinder Rametra
|