-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WzUymPVYkHihwtDz2gcLeXi9oOn5rPzRxys5gc5z7visiUVJST8juqRjiRJCFnw7 LVIs6Byp+7FWu2otyE8TWQ== 0001144204-09-046848.txt : 20090902 0001144204-09-046848.hdr.sgml : 20090902 20090902145107 ACCESSION NUMBER: 0001144204-09-046848 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20090902 DATE AS OF CHANGE: 20090902 GROUP MEMBERS: ARNOLD L. HERMELIN GROUP MEMBERS: DAVID S. HERMELIN GROUP MEMBERS: GREG D. KENLEY GROUP MEMBERS: JOSHUA L. HERMELIN GROUP MEMBERS: LAWRENCE BRODY GROUP MEMBERS: LISA M. KENLEY GROUP MEMBERS: THOMAS R. CORBETT SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KV PHARMACEUTICAL CO /DE/ CENTRAL INDEX KEY: 0000057055 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 430618919 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-12338 FILM NUMBER: 091050724 BUSINESS ADDRESS: STREET 1: 2503 S HANLEY RD CITY: ST LOUIS STATE: MO ZIP: 63144 BUSINESS PHONE: 3146456600 MAIL ADDRESS: STREET 1: 2503 S HANLEY RD CITY: ST LOUIS STATE: MO ZIP: 63144 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HERMELIN MARC S CENTRAL INDEX KEY: 0001039209 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 2503 SOUTH HANLEY RD CITY: ST LOUIS STATE: MO ZIP: 63144 SC 13D/A 1 v159618_sc13da.htm

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Amendment No. 1 to

SCHEDULE 13D

UNDER THE SECURITIES EXCHANGE ACT OF 1934

K-V Pharmaceutical Company

(Name of Issuer)

Class B Common Stock, $.01 Par Value

(Title of Class of Securities)

482 740 10 7

(CUSIP Number)

Phillip R. Stanton

10 South Broadway, Suite 2000

St. Louis, Missouri 63102

(314) 241-9090

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

September 2, 2009

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).

CUSIP No. 482 740 10 7

Schedule 13D

Page 2 of 12 Pages

(1)	Name of Reporting Person Marc S. Hermelin
(2)	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
(3)	SEC Use Only
(4)	Source of Funds (See Instructions) OO
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e). ¨
(6)	Citizenship or Place of Organization U.S.
Number of Shares Beneficially Owned by Each Reporting Person With		(7)	Sole Voting Power 1,748,235
		(8)	Shared Voting Power 4,550,299
		(9)	Sole Dispositive Power 1,748,235
		(10)	Shared Dispositive Power
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person 6,298,534
(12)	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ (See Instructions)
(13)	Percent of Class Represented by Amount in Row (11) 51.4%
(14)	Type of Reporting Person (See Instructions) IN

CUSIP No. 482 740 10 7

Schedule 13D

Page 3 of 12 Pages

(1)	Name of Reporting Person Arnold L. Hermelin
(2)	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
(3)	SEC Use Only
(4)	Source of Funds (See Instructions) OO
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e). ¨
(6)	Citizenship or Place of Organization U.S.
Number of Shares Beneficially Owned by Each Reporting Person With		(7)	Sole Voting Power 0
		(8)	Shared Voting Power 2,246,209
		(9)	Sole Dispositive Power 0
		(10)	Shared Dispositive Power 2,246,209
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person 2,246,209
(12)	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ (See Instructions)
(13)	Percent of Class Represented by Amount in Row (11) 18.3%
(14)	Type of Reporting Person (See Instructions) IN

CUSIP No. 482 740 10 7

Schedule 13D

Page 4 of 12 Pages

(1)	Name of Reporting Person Lawrence Brody, not individually but solely in his capacity as co-trustee of the 1973 Trusts (as defined herein)
(2)	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
(3)	SEC Use Only
(4)	Source of Funds (See Instructions) OO
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e). ¨
(6)	Citizenship or Place of Organization U.S.
Number of Shares Beneficially Owned by Each Reporting Person With		(7)	Sole Voting Power 0
		(8)	Shared Voting Power 4,382,764
		(9)	Sole Dispositive Power 0
		(10)	Shared Dispositive Power 4,382,764
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person 4,382,764
(12)	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ (See Instructions)
(13)	Percent of Class Represented by Amount in Row (11) 35.8%
(14)	Type of Reporting Person (See Instructions) IN

CUSIP No. 482 740 10 7

Schedule 13D

Page 5 of 12 Pages

(1)	Name of Reporting Person David S. Hermelin
(2)	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
(3)	SEC Use Only
(4)	Source of Funds (See Instructions) OO
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e). ¨
(6)	Citizenship or Place of Organization U.S.
Number of Shares Beneficially Owned by Each Reporting Person With		(7)	Sole Voting Power 52,875
		(8)	Shared Voting Power 2,136,555
		(9)	Sole Dispositive Power 52,875
		(10)	Shared Dispositive Power 2,136,555
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person 2,189,430
(12)	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o (See Instructions)
(13)	Percent of Class Represented by Amount in Row (11) 17.9%
(14)	Type of Reporting Person (See Instructions) IN

CUSIP No. 482 740 10 7

Schedule 13D

Page 6 of 12 Pages

(1)	Name of Reporting Person Thomas R. Corbett, not individually, but solely in his capacity as trustee of the 1971 Trusts and the Yosef Trust (each, as defined herein)
(2)	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
(3)	SEC Use Only
(4)	Source of Funds (See Instructions) OO
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e). ¨
(6)	Citizenship or Place of Organization U.S.
Number of Shares Beneficially Owned by Each Reporting Person With		(7)	Sole Voting Power 881,780
		(8)	Shared Voting Power 0
		(9)	Sole Dispositive Power 881,780
		(10)	Shared Dispositive Power 0
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person 881,780
(12)	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ (See Instructions)
(13)	Percent of Class Represented by Amount in Row (11) 7.2%
(14)	Type of Reporting Person (See Instructions) IN

CUSIP No. 482 740 10 7

Schedule 13D

Page 7 of 12 Pages

(1)	Name of Reporting Person Greg D. Kenley, not individually but solely in his capacity as co-trustee of the Jacob Trust (as defined herein)
(2)	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
(3)	SEC Use Only
(4)	Source of Funds (See Instructions) OO
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e). ¨
(6)	Citizenship or Place of Organization U.S.
Number of Shares Beneficially Owned by Each Reporting Person With		(7)	Sole Voting Power 0
		(8)	Shared Voting Power 500,893
		(9)	Sole Dispositive Power 0
		(10)	Shared Dispositive Power 500,893
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person 500,893
(12)	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ (See Instructions)
(13)	Percent of Class Represented by Amount in Row (11) 4.1%
(14)	Type of Reporting Person (See Instructions) IN

CUSIP No. 482 740 10 7

Schedule 13D

Page 8 of 12 Pages

(1)	Name of Reporting Person Lisa M. Kenley, not individually but solely in her capacity as co-trustee of the Jacob Trust (as defined herein)
(2)	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
(3)	SEC Use Only
(4)	Source of Funds (See Instructions) OO
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e). ¨
(6)	Citizenship or Place of Organization U.S.
Number of Shares Beneficially Owned by Each Reporting Person With		(7)	Sole Voting Power 0
		(8)	Shared Voting Power 500,893
		(9)	Sole Dispositive Power 0
		(10)	Shared Dispositive Power 500,893
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person 500,893
(12)	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ (See Instructions)
(13)	Percent of Class Represented by Amount in Row (11) 4.1%
(14)	Type of Reporting Person (See Instructions) IN

CUSIP No. 482 740 10 7

Schedule 13D

Page 9 of 12 Pages

(1)	Name of Reporting Person Joshua L. Hermelin
(2)	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
(3)	SEC Use Only
(4)	Source of Funds (See Instructions) OO
(5)	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e). ¨
(6)	Citizenship or Place of Organization U.S.
Number of Shares Beneficially Owned by Each Reporting Person With		(7)	Sole Voting Power 655
		(8)	Shared Voting Power 500,893
		(9)	Sole Dispositive Power 655
		(10)	Shared Dispositive Power 500,893
(11)	Aggregate Amount Beneficially Owned by Each Reporting Person 501,548
(12)	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ¨ (See Instructions)
(13)	Percent of Class Represented by Amount in Row (11) 4.1%
(14)	Type of Reporting Person (See Instructions) IN

CUSIP No. 482 740 10 7

Schedule 13D

Page 10 of 12 Pages

Note: This Amendment No. 1 to Schedule 13D (this “Amendment”) amends a Schedule 13D (the “Original Filing”) filed on August 5, 2009 by Marc S. Hermelin, Arnold L. Hermelin, David S. Hermelin, Lawrence Brody, Greg D. Kenley, Lisa M. Kenley, Joshua L. Hermelin, and Thomas R. Corbett (the “Reporting Persons”) with respect to shares of Class B Common Stock, $.01 par value per share (the “Class B Shares”) of K-V Pharmaceutical Company, a Delaware corporation (the “Company”). This Amendment is being filed to disclose the Reporting Persons’ delivery to the Company of a request for a record date with respect to an Action by Written Consent of Stockholders, which request was delivered to the Company on September 1, 2009 by the Reporting Persons. Capitalized terms used in this Amendment and not defined herein shall have the definitions given them in the Original Filing. This Amendment amends the Original Filing only as expressly set forth herein.

1. Item 6 of the Original Filing is hereby amended and supplemented with the following:

A. Written Consent. As disclosed in the Original Filing, on August 5, 2009 the Reporting persons delivered to the Company a certain Action by Written Consent of Stockholders (the “August 5 Written Consent”), which effected certain amendments to the Company’s By-Laws. (The Company’s By-Laws as previously amended, including without limitation amendments effected by the August 5 Written Consent are referred to as the “By-Laws”). On August 7, 2009, the Company notified the Reporting Persons of the Company’s belief that the August 5 Written Consent was invalid and not effective because the request to fix a record date submitted by the Reporting Persons did not specify the contemplated actions to be taken by the Reporting Persons. The Company also notified the Reporting Persons that, in the event the Reporting Persons delivered to the Company a written notice, in compliance with Article II, Section 12 of the Company’s By-Laws, requesting the board of directors of the Company (the “Board”) to fix a record date for stockholder action by written consent, the Board intends to fix a record date as provided in the By-Laws.

The Reporting Persons dispute the Company’s position that the August 5 Written Consent was invalid and maintain that the actions effected in the August 5 Written Consent were effective and remain in effect because the Company’s By-Laws do not require that a request to fix a record date contain a description of the action proposed to be taken. Nonetheless, on September 1, 2009, the Reporting Persons delivered to the Company a request that the Board fix a record date with respect to a second Action by Written Consent of Stockholders (the “Second Written Consent”) which request was accompanied by the form of the Second Written Consent.

The Second Written Consent will effect further amendments to the By-Laws, as set forth in the copy thereof which is filed as Exhibit 2 to this Amendment and incorporated herein by this reference. The delivery of the request to fix a record date with respect to the Second Written Consent does not constitute an admission of the ineffectiveness of the August 5 Written Consent, which remains in full force and effect to the extent not superseded by the Second Written Consent.

The Reporting Persons may be deemed to be a “group” as such term is defined in Section 13d of the Exchange Act; provided, however, that except for their intent to cooperate in filing the Second Written Consent, presently none of the Reporting Persons have any contracts, arrangements, understandings or relationships with respect to any future actions, including any further written consents or votes at meetings of stockholders.

CUSIP No. 482 740 10 7

Schedule 13D

Page 11 of 12 Pages

Item 7. Material to be Filed as Exhibits

1	Joint Filing Agreement, dated September 2, 2009

2	Form of Action by Written Consent of Stockholders, delivered to the Company on September 1, 2009

CUSIP No. 482 740 10 7

Schedule 13D

Page 12 of 12 Pages

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 2, 2009

	/s/ Marc S. Hermelin
	Marc S. Hermelin

	/s/ Arnold L. Hermelin
	Arnold L. Hermelin

	/s/ David S. Hermelin
	David S. Hermelin

	/s/ Lawrence Brody
	Lawrence Brody, not individually but solely in his capacity as co-trustee of the 1973 Trusts (as defined in this Schedule 13D)

	/s/ Greg D. Kenley
	Greg D. Kenley, not individually but solely in his capacity as co-trustee of the Jacob Trust (as defined in this Schedule 13D)

	/s/ Lisa M. Kenley
	Lisa M. Kenley, not individually but solely in her capacity as co-trustee of the Jacob Trust (as defined in this Schedule 13D)

	/s/ Joshua L. Hermelin
	Joshua L. Hermelin

	/s/ Thomas R. Corbett
	Thomas R. Corbett, not individually but solely in his capacity as trustee of the 1971 Trusts and the Yosef Trust (each, as defined in this Schedule 13D)

EX-1 2 v159618_ex1.htm

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, each of the undersigned does hereby consent and agree to the joint filing on behalf of each of them of this Schedule 13D, and to the inclusion of this Joint Filing Agreement as an exhibit thereto.

Dated: September 2, 2009

	/s/ Marc S. Hermelin
	Marc S. Hermelin

	/s/ Arnold L. Hermelin
	Arnold L. Hermelin

	/s/ David S. Hermelin
	David S. Hermelin

	/s/ Lawrence Brody
	Lawrence Brody, not individually but solely in his capacity as co-trustee of the 1973 Trusts (as defined in this Schedule 13D)

	/s/ Greg D. Kenley
	Greg D. Kenley, not individually but solely in his capacity as co-trustee of the Jacob Trust (as defined in this Schedule 13D)

	/s/ Lisa M. Kenley
	Lisa M. Kenley, not individually but solely in her capacity as co-trustee of the Jacob Trust (as defined in this Schedule 13D)

	/s/ Joshua L. Hermelin
	Joshua L. Hermelin

	/s/ Thomas R. Corbett
	Thomas R. Corbett, not individually but solely in his capacity as trustee of the 1971 Trusts and the Yosef Trust (each, as defined in this Schedule 13D)

EX-2 3 v159618_ex2.htm

FORM OF ACTION BY WRITTEN CONSENT OF STOCKHOLDERS

Pursuant to § 228 of the Delaware General Corporation Law, the undersigned stockholders of K-V Pharmaceutical Company, a Delaware corporation (the "Corporation"), holding, as of September ___, 2009 ("Record Date"), outstanding stock in the Corporation having not less than the minimum number of votes that would be necessary to authorize or take the actions set forth in this Action by Written Consent of Stockholders at any annual or special meeting of the stockholders of the Corporation at which all shares entitled to vote thereon were present and voted, hereby consent to and adopt the following actions of the stockholders of the Corporation in lieu of a special meeting of the stockholders of the Corporation:

RESOLVED, that Section 12 of Article II of the By-Laws of the Corporation be, and hereby is, amended so as to read in its entirety as follows:

"Section 12. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than three days after the date upon which the resolution fixing the record date is adopted by the board of directors. Any stockholder of record seeking to have the stockholders authorize or take corporate action by written consent shall, by written notice to the secretary, request the board of directors to fix a record date. The board of directors shall promptly, but in all events within three days after the date on which such a request is received, adopt a resolution fixing the record date. If no record date has been fixed by the board of directors within three days after the date on which such a request is received, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the date on which the board of directors adopts the resolution taking such prior action."

RESOLVED, that Section 10 of Article III of the By-Laws of the Corporation be, and hereby is, amended so as to read in its entirety as follows:

"Section 10. The board of directors may, by resolution passed by a majority of the whole board of directors, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Except as otherwise expressly required under the Delaware General Corporation Law, any United States federal law, including but not limited to the Securities Exchange Act of 1934, and the rules of the New York Stock Exchange, any action or resolution of any committee of the board of directors (including but not limited to compensation, stock options or stock grants, and other forms of remuneration granted to any executive officer of the corporation) shall only be effective or binding upon the corporation upon ratification of such action or resolution by the board of directors in accordance with these By-Laws; provided, however, that no action or resolution (other than actions or resolutions involving matters described of Section 13 of these By-laws, which shall be governed by the provisions of Section 1 and Section 13 of Article VIII) of any committee of the board of directors formed solely for the purpose of and which action consists solely of (1) responding to requests by the Government for documents, testimony or other factual information, or (2) responding to discovery requests in securities and ERISA litigation, shall require ratification by the board of directors."

RESOLVED, that Article III of the By-Laws of the Corporation be, and hereby is, amended by adding and inserting the following Section 13 at the end of such Article:

"Section 13. Each of the following acts or resolutions of the board of directors, or any committee thereof, or the ratification by the board of directors of any such act or resolution by any committee thereof, in order to be effective, shall require the unanimous affirmative vote or unanimous written consent of the members of the board of directors then in office (other than any directors who affirmatively recuse themselves prior to the vote):

(a) The approval of any agreement or contract, or the issuance of any security, which confers stockholder voting rights;

(b) The increase in the number of the members of the board of directors, in accordance with Section 1 of Article III of these by-laws, to a number which is in excess of eight (8);

(c) The approval of any contract, agreement or other document or instrument which contains any provision (1) which imposes a penalty, acceleration of debt, purchase obligation or other adverse effect upon the corporation resulting from the election or appointment of any individual to the board of directors or the removal of any member of the board of directors or (2) which restricts, limits or dilutes the right of the stockholders to elect or appoint any individual to the board of directors or to remove any member of the board of directors.

RESOLVED, that Section 1 of Article VIII of the By-Laws of the Corporation be, and hereby is, amended by deleting such section in its entirety and replacing such section with the following:

"Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders of shares representing a majority of the voting power of the corporation or by the board of directors, provided however that these bylaws may be altered, amended or repealed or new by-laws may be adopted by the board of directors only if such action is approved by either (a) the unanimous written consent of the members of the board of directors then in office, or (b) the affirmative vote of all but one of the members of the board of directors then in office, at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting."

RESOLVED, that Section 4 of Article III of the By-Laws of the Corporation be, and hereby is, amended by deleting such section in its entirety and replacing such section with the following:

"Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. All such regular or special meetings may not be scheduled to occur on any religious holiday (including the Sabbath holiday) which is observed as a non-working day by any member of the board of directors.

The undersigned stockholders of the Corporation have executed this Action by Written Consent of Stockholders on the respective dates indicated below each respective stockholder's signature. Wherever possible, each individual action in this Action by Written Consent of Stockholders shall be interpreted in such a manner as to be valid, operable, lawful, enforceable and effective under applicable law, but if any individual action in this Action by Written Consent of Stockholders is determined or deemed to be invalid, inoperative, unlawful, unenforceable or ineffective to any extent for any reason, such circumstances shall not have the effect of rendering the action in question invalid, inoperative, unlawful, unenforceable or ineffective in any other jurisdiction, case or circumstance, or of rendering any other action in this Action by Written Consent of Stockholders invalid, inoperative, unlawful, unenforceable or ineffective. This Action by Written Consent of Stockholders may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which shall constitute one and the same written document. Pursuant to § 228(d) of the Delaware General Corporation Law, any copy, facsimile or other reliable reproduction of this Action by Written Consent of Stockholders may be substituted or used in lieu of the original of this document, and a signature by any of the stockholders to this Action by Written Consent of Stockholders, transmitted by facsimile or other electronic transmission, shall be deemed to constitute an original and fully effective signature of such stockholder.

[Remainder of page intentionally left blank. Signature pages follow.]

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