ENDOVASC, INC.
CERTIFICATE OF DESIGNATIONS, POWERS,
PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS
SERIES NDC STOCK,
$.001 PAR VALUE PER SHARE
PURSUANT TO NRS 78.1955
1. The name of the corporation is Endovasc, Inc.
2. The following resolutions were adopted by the Board of Directors
pursuant to the Articles of Incorporation of the Company:
RESOLVED, that pursuant to the authority expressly granted to and vested in
the Board of Directors of the Company by the provisions of the Certificate
of Incorporation of the Company, the Board of Directors hereby authorizes
and designates a series of common stock of the Company (the "Series NDC
Stock") consisting of 15,000,000 shares.
FURTHER RESOLVED, that the Board of Directors hereby fixes and determines
the powers, preferences, limitations, and relative rights of the Series NDC
Stock as set forth in Exhibit A attached to these resolutions.
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FURTHER RESOLVED, that the President and the Secretary of the Company be,
and each hereby is, authorized to execute a Certificate of Designations
relating to the Series NDC Stock and cause the same to be filed with the
Secretary of State of the State of Nevada.
IN WITNESS WHEREOF, I do hereby execute these Articles of Amendment on July 1,
2003.
/s/ David P. Summers
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David P. Summers, President
EXHIBIT A
ENDOVASC, INC.
POWERS, PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS
OF
SERIES NDC STOCK
1. Definitions. As used in these powers, preferences, limitations and
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relative rights, the following terms have the meanings set forth in this
section.
(b) "Common Stock" means the common stock of the Corporation, $.001 par
value per share, that has not been assigned to any class or series of common
stock.
(c) "Common Stock Available Dividend Amount" on any date means the excess,
if any, of (i) the amount legally available for the payment of dividends on
Common Stock of the Corporation over (ii) the Series NDC Available Dividend
Amount and any other amounts set aside for dividends on a series of Common
Stock.
(d) "Common Stock Liquidation Amount" means excess, if any, of (i) the
total assets of the Corporation over (ii) the sum of the liabilities of the
Corporation and any amount needed to satisfy the preferential rights to which
holders of any Preferred Stock of the Corporation are entitled upon liquidation
of the Corporation.
(e) "Series NDC Available Dividend Amount" on any date means the excess,
if any, of (i) the paid in surplus relating to the Series NDC Stock and retained
earnings (net of retained losses) relating to the nutraceutical application of
the Corporations angiogenics patents, licenses, products and services, as
determined in accordance with generally accepted accounting principles in effect
at such time applied on a consistent basis.
(f) "Series NDC Liquidation Amount" means the product of (i) the Common
Stock Liquidation Amount times (ii) a fraction the numerator of which is the
Series NDC Available Dividend Amount and the denominator of which is the amount
legally available for the payment of dividends on Common Stock of the
Corporation.
(g) "Series NDC Stock" means the series of Common Stock of the Corporation
designated in these powers, preferences, limitations and relative rights.
2. Designation and Number. There shall be a series of Common Stock of the
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Corporation designated the "Series NDC Stock," and the number of shares
constituting such series shall be 15,000,000 shares, having $.001 par value per
share. The Series NDC Stock shall, with respect to all powers, preferences,
limitations and relative rights hereof be equal to and on a par with the Common
Stock, except as set forth herein.
3. Dividends. (a) The holders of the outstanding shares of Series NDC Stock
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shall be entitled to receive, when and as declared by the Board of Directors,
out of any funds legally available
therefor, cash dividends in an amount equal to the lesser of (i) the assets
legally available therefor and (ii) the Series NDC Available Dividend Amount.
(b) No dividends shall be declared or paid on Common Stock unless,
after giving effect thereto, the assets legally available for the payment of
dividends on the Series NDC Stock are greater than the Series NDC Available
Dividend Amount.
(c) The holders of the outstanding shares of Series NDC Stock shall
participate on a parity with the holders of the outstanding shares of Common
Stock in any dividend or distribution in the form of a security or evidence of
indebtedness issued by the Corporation other than shares of the Common Stock or
securities exchangeable for or convertible into shares of Common Stock.
(d) The Board of Directors may at any time declare and pay dividends
exclusively on the Series NDC Stock or exclusively on the Common Stock or on
both the Series NDC Stock and the Common Stock, in equal or unequal amounts,
notwithstanding the relative amounts of the Series NDC Stock Available Dividend
Amount and the Common Stock Available Dividend Amount, the amount of dividends
previously declared on each series, the respective voting or liquidation rights
of each series or any other factor.
4. Voting. Except as otherwise provided herein or as required by law, the
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Series NDC Stock shall be voted with the shares of the Common Stock of the
Company and not as a separate class, at any annual or special meeting of
shareholders of the Company, and may act by written consent in the same manner
as the Common Stock, in either case upon the basis of one vote for each share of
Series NDC Stock.
5. Liquidation Rights. In the event of any voluntary or involuntary
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liquidation, dissolution or termination of the Corporation, after payment or
provision for payment of the debts and other liabilities of the Corporation and
the full preferential amounts (including any accumulated and unpaid dividends)
to which the holders of any outstanding shares of the Preferred Stock are
entitled, the holders of the Series NDC Stock and the Common Stock shall be
entitled to receive the assets, if any, of the Corporation remaining for
distribution to holders of the Common Stock on a per share basis in proportion
to the respective Series NDC Liquidation Amount and the Common Stock Liquidation
Amount. Neither a merger nor share exchange of the Corporation into or with any
other company, nor a merger or share exchange of any other company into or with
the Corporation, nor a sale, lease, exchange or other disposition of all or any
part of the assets of the Corporation, shall, alone, be deemed a liquidation of
the Corporation, or cause the dissolution of the Corporation.
6. Dispositions. (a) In the event of the disposition, in one transaction or a
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series of related transactions, by the Corporation and/or its subsidiaries of
all or substantially all of the properties and assets attributed to the
nutraceutical application of its angiogenics patents, licenses, products and
services to one or more persons or entities other than the disposition by the
Corporation of all or substantially all its properties and assets in one
transaction or a series of related transactions in connection with the
liquidation, dissolution or termination of the Corporation and the distribution
of assets to shareholders as referred to in Section 5, or to any person or
entity
controlled (as determined by the Board of Directors) by the Corporation, the
Corporation shall, on or prior to the 85th day after the date of consummation of
such disposition (the "Disposition Date"),
(i) if such disposition involves less than all of the properties and
assets attributed to the nutraceutical application of the Corporation's
angiogenics patents, licenses, products and services and provided that
there are assets legally available therefor, pay to the holders of the
shares of the Series NDC Stock a dividend, as the Board of Directors shall
have declared subject to compliance with the provisions of these
declarations, in cash or other property having a fair value as of the
Disposition Date in the aggregate equal to the net proceeds received from
such disposition; or
(ii) if such disposition involves all (not merely substantially all) of
the properties and assets attributed to the nutraceutical application of
the Corporation's angiogenics patents, licenses, products and services,
redeem all outstanding shares of the Series NDC Stock in exchange for cash
or other property having a fair value as of the Disposition Date in the
aggregate equal to the net proceeds received from such disposition.
(b) Not later than the tenth (10th) Trading Day following the Disposition
Date, the Corporation shall notify each holder of Series NDC Stock (i) the net
proceeds of such disposition, (ii) the number of shares outstanding of the
Series NDC Stock, (iii) either the amount of any dividend pursuant to Section
6(i) or the amount of the redemption pursuant to Section 6(ii), (iv) the record
date as of which the holders of the Series NDC Stock will be determined for the
purposes of distributions pursuant to this Section, and (v) the date, time and
place at which any shares of Series NDC Stock are to be delivered for
redemption.
(c) The Corporation shall not be required to issue or deliver fractional
shares of any capital stock or of any other securities to any holder of Series
NDC Stock upon any redemption, dividend or other distribution pursuant to this
Section. If more than one share of Series NDC Stock shall be held at the same
time by the same holder, the Corporation may aggregate the number of shares of
any capital stock that shall be issuable or any other securities or property
that shall be distributable to such holder upon any redemption, dividend or
other distribution (including any fractional shares). If there are fractional
shares of any capital stock or of any other securities remaining to be issued or
distributed to the holders of Series NDC Stock, the Corporation shall, if such
fractional shares are not issued or distributed to the holder, pay cash in
respect of such fractional shares in an amount equal to the fair value thereof
on the fifth Trading Day prior to the date such payment is to be made (without
interest).
(d) No adjustments in respect of dividends shall be made upon the
redemption of any shares of Series NDC Stock; provided, however, that if the
redemption date with respect to any shares of Series NDC Stock shall be
subsequent to the record date for the payment of a dividend or other
distribution thereon or with respect thereto, the holders of such Series NDC
Stock at the close of business on such record date shall be entitled to receive
the dividend or other distribution payable on or with respect to such shares on
the date set for payment of such dividend or other distribution, in each case
without interest, notwithstanding the subsequent redemption of such shares.
(e) Before any holder of Series NDC Stock shall be entitled to receive
any cash payment and/or certificates or instruments representing shares of any
capital stock and/or other securities or property to be distributed to such
holder with respect to such Series NDC Stock pursuant to this Section, such
holder shall surrender at such place as the Corporation shall specify
certificates for such shares of Series NDC Stock, properly endorsed or assigned
for transfer (unless the Corporation shall waive such requirement). The
Corporation shall as soon as practicable after receipt of certificates
representing such shares of Series NDC Stock deliver to the person for whose
account such shares of Series NDC Stock were so surrendered, or to such person's
nominee or nominees, the cash and/or the certificates or instruments
representing the number of whole shares of the kind of capital stock and/or
other securities or property to which such person shall be entitled as
aforesaid, together with any payment in respect of fractional shares
contemplated by this Section, in each case without interest.
(f) From and after any applicable redemption date all rights of a
holder of shares of the Series NDC Stock shall cease except for the right, upon
surrender of the certificates representing such shares of the Series NDC Stock
as required by this Section, to receive the cash and/or the certificates or
instruments representing shares of the kind and amount of capital stock and/or
other securities or property for which such shares were redeemed, together with
any payment in respect of fractional shares and rights to dividends as provided
in this Section, in each case without interest.
(g) The Corporation shall pay any and all documentary, stamp or similar
issue or transfer taxes that may be payable in respect of the issuance or
delivery of any shares of capital stock and/or other securities upon redemption
of shares of Series NDC Stock pursuant to this Section. The Corporation shall
not, however, be required to pay any tax that may be payable in respect of any
transfer involved in the issuance or delivery of any shares of capital stock
and/or other securities in a name other than that in which the shares of such
Series NDC Stock so redeemed were registered, and no such issuance or delivery
shall be made unless and until the person requesting such issuance or delivery
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.
(h) Neither the failure to mail any notice required by this Section to
any particular holder of Series NDC Stock nor any defect therein shall affect
the sufficiency thereof with respect to any other holder of outstanding shares
of Series NDC Stock or the validity of any such redemption.
(i) The Board of Directors may establish such rules and requirements to
facilitate the effectuation of the transactions contemplated by this Section as
the Board of Directors shall determine to be appropriate.
7. Exchange. (a) At any time at which all of the assets and liabilities
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attributed to the nutraceutical application of the Corporation's angiogenics
patents, licenses, products and services (and no other assets or liabilities of
the Corporation or any subsidiary thereof) are held directly or indirectly by
one or more subsidiaries of the Corporation (a "NDC Subsidiary"), the Board of
Directors may on such date as the Board of Directors shall determine (the
"Exchange
Date") exchange all of the outstanding shares of Series NDC Stock for the number
of shares of common stock of such NDC Subsidiary equal to the quotient of (i)
the number of shares of the NDC Subsidiary then owned by the Corporation divided
by (ii) the number of shares of Series NDC Stock outstanding.
(b) Not later than the tenth (10th) Trading Day following the
determination of an Exchange Date, the Corporation shall notify each holder of
Series NDC Stock (i) the number of shares outstanding of the Series NDC Stock,
(ii) the number of shares of the NDC Subsidiary that will be issued for each
outstanding share of Series NDC Stock, (iii) the record date as of which the
holders of the Series NDC Stock will be determined for the purposes of
distributions pursuant to this Section, and (iv) the date, time and place at
which any shares of Series NDC Stock are to be delivered for exchange.
(c) The Corporation shall not be required to issue or deliver fractional
shares of any capital stock or of any other securities to any holder of Series
NDC Stock upon any exchange other distribution pursuant to this Section. If
more than one share of Series NDC Stock shall be held at the same time by the
same holder, the Corporation may aggregate the number of shares of any capital
stock that shall be issuable or any other securities or property that shall be
distributable to such holder upon any exchange or other distribution (including
any fractional shares). If there are fractional shares of any capital stock or
of any other securities remaining to be issued or distributed to the holders of
Series NDC Stock, the Corporation shall, if such fractional shares are not
issued or distributed to the holder, pay cash in respect of such fractional
shares in an amount equal to the fair value thereof on the fifth Trading Day
prior to the date such payment is to be made (without interest).
(d) No adjustments in respect of dividends shall be made upon the exchange
of any shares of Series NDC Stock; provided, however, that if the exchange date
with respect to any shares of Series NDC Stock shall be subsequent to the record
date for the payment of a dividend or other distribution thereon or with respect
thereto, the holders of such Series NDC Stock at the close of business on such
record date shall be entitled to receive the dividend or other distribution
payable on or with respect to such shares on the date set for payment of such
dividend or other distribution, in each case without interest, notwithstanding
the subsequent exchange of such shares.
(e) Before any holder of Series NDC Stock shall be entitled to receive any
cash payment and/or certificates or instruments representing shares of any
capital stock and/or other securities or property to be distributed to such
holder with respect to such Series NDC Stock pursuant to this Section, such
holder shall surrender at such place as the Corporation shall specify
certificates for such shares of Series NDC Stock, properly endorsed or assigned
for transfer (unless the Corporation shall waive such requirement). The
Corporation shall as soon as practicable after receipt of certificates
representing such shares of Series NDC Stock deliver to the person for whose
account such shares of Series NDC Stock were so surrendered, or to such person's
nominee or nominees, the cash and/or the certificates or instruments
representing the number of whole shares of the kind of capital stock and/or
other securities or property to which such person shall be entitled as
aforesaid, together with any payment in respect of fractional shares
contemplated by this Section, in each case without interest.
(f) From and after any applicable exchange date all rights of a holder of
shares of the Series NDC Stock shall cease except for the right, upon surrender
of the certificates representing such shares of the Series NDC Stock as required
by this Section, to receive the cash and/or the certificates or instruments
representing shares of the kind and amount of capital stock and/or other
securities or property for which such shares were exchanged, together with any
payment in respect of fractional shares and rights to dividends as provided in
this Section, in each case without interest.
(g) The Corporation shall pay any and all documentary, stamp or similar
issue or transfer taxes that may be payable in respect of the issuance or
delivery of any shares of capital stock and/or other securities upon exchange of
shares of Series NDC Stock pursuant to this Section. The Corporation shall not,
however, be required to pay any tax that may be payable in respect of any
transfer involved in the issuance or delivery of any shares of capital stock
and/or other securities in a name other than that in which the shares of such
Series NDC Stock so redeemed were registered, and no such issuance or delivery
shall be made unless and until the person requesting such issuance or delivery
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.
(h) Neither the failure to mail any notice required by this Section to any
particular holder of Series NDC Stock nor any defect therein shall affect the
sufficiency thereof with respect to any other holder of outstanding shares of
Series NDC Stock or the validity of any such exchange.
(i) The Board of Directors may establish such rules and requirements to
facilitate the effectuation of the transactions contemplated by this Section as
the Board of Directors shall determine to be appropriate.
8. Extraordinary Transactions. (a) In the event of (i) a merger or
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consolidation of the Corporation with or into another corporation resulting in
more than 50% of the outstanding shares of the surviving corporation's voting
stock being owned by a person or persons other than the holders of the Common
Stock as of the date immediately prior to such merger or consolidation; (ii) the
sale of voting stock resulting in more than 50% of the outstanding shares of the
Corporation's voting stock being owned by a person or persons other than the
holders of the shareholders of the Corporation as of the date immediately prior
to such sale; or (iii) the sale, transfer or lease of all, or substantially all,
of the assets of the Corporation (each, an "Extraordinary Transaction"), each
share of Series NDC Stock shall be converted to Common Stock on the day
immediately prior to such Extraordinary Transaction in the ratio that the Series
NDC Liquidation Amount bears to the Common Stock Liquidation Amount on such
date.
(b) The Corporation shall, within ten (10) days after the date the Board
of Directors approves an Extraordinary Transaction, give each holder of record
of the Series NDC Stock written notice of the proposed action, including the
date on which such action is scheduled to be taken, a description of the stock,
cash and property to be received by the holders of shares of Common Stock upon
consummation of the proposed action and the date of delivery thereof. If
any material change in the facts set forth in the notice shall occur, the
Corporation shall promptly give written notice to each holder of the Series NDC
Stock of such material change.
(c) The Corporation shall not consummate any Extraordinary Transaction
before the expiration of thirty (30) days after the mailing of the initial
notice or ten (10) days after the mailing of any subsequent written notice,
whichever is later; provided that any such 30-day or 10-day period may be
shortened upon the written consent of the holders of a majority of the then
outstanding shares of the Series NDC Stock (the "Majority Holders")
9. Legend. The certificates representing shares of the Series NDC Stock shall
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bear the following restrictive legend.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE DESIGNATIONS,
LIMITATIONS, PREFERENCES AND RELATIVE RIGHTS OF THE SERIES NDC STOCK, A
COPY OF WHICH MAY BE OBTAINED BY THE REGISTERED HOLDER HEREOF UPON WRITTEN
REQUEST TO THE ISSUER.
THE SECURITES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND
NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR ANY BENEFICIAL
INTEREST THEREIN MAY BE SOLD, PLEDGED, HYPOTHICATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AS
SET FORTH IN THE CERTIFICATE OF DESIGNATIONS, LIMITATION, PREFERENCES AND
RELATIVE RIGHTS RELATING TO THE SERIES NDC STOCK.
10. Loss. Theft. Destruction. Upon receipt by the Corporation of evidence
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satisfactory to the Board of Directors of the Corporation of the loss, theft,
destruction or mutilation of the certificate representing the holder's shares of
Series NDC Stock, and, in the case of loss, theft or destruction, of reasonable
satisfactory indemnification, and upon surrender and cancellation of such
certificate if mutilated, the Corporation shall execute and deliver a
replacement certificate.