BIOGAN INTERNATIONAL, INC.
AMENDED CERTIFICATE OF DESIGNATIONS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
(Pursuant to Section 151 of the General Corporation Law
of the State of Delaware)
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Gilles LaVerdiere and Robert Montgomery certify that:
A. They are President and Secretary, respectively, of Biogan
International, Inc., a Delaware corporation (the "Corporation").
B. Pursuant to authority given by the Corporation's Certificate of
Incorporation, and pursuant to Section 151 of the General Corporation Law of the
State of Delaware, the Board of Directors of the Corporation has duly adopted
the following preambles and resolutions effective as of July 26, 2000:
WHEREAS, the Certificate of Incorporation of the Corporation
provides for a class of shares known as undesignated preferred stock,
$.001 par value (the "Preferred Stock"), issuable from time to time in
one or more series;
WHEREAS, the Board of Directors of the Corporation is
authorized to determine or alter the rights, preferences, privileges
and restrictions granted to or imposed upon any wholly unissued series
of Preferred Stock, to fix the number of shares constituting any such
series and to determine the designation thereof, or any of them;
WHEREAS, the Board of Directors of the Corporation, by
unanimous written consent dated February 25, 2000, adopted a resolution
providing for the creation of a series of the Corporation's Preferred
Stock designated as "Series A Convertible Preferred Stock," and
pursuant to which the Corporation filed with the Delaware Secretary of
State on March 13, 2000 a Statement of Designations of the Preferences
of the Series of the Preferred Stock of Biogan International, Inc. to
be designated Series A Convertible Preferred Stock;
WHEREAS, no shares of Series A Convertible Preferred Stock
have been issued;
WHEREAS, the Board of Directors of the Corporation desires,
pursuant to the authority described above, to determine, fix and alter
certain of the rights, preferences, privileges and restrictions of the
Series A Convertible Preferred Stock.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors
hereby determines, fixes, alters and amends the designation of, and the
rights, preferences, privileges and restrictions relating to, the
Series A Convertible Preferred Stock as follows:
SERIES A CONVERTIBLE PREFERRED STOCK
1. DESIGNATION AND AMOUNT. The series of Preferred Stock designated as
Series A Convertible Preferred Stock ("Series A Preferred") shall consist of
31,300 shares.
2. DIVIDENDS. The holders of Series A Preferred shall not be entitled
to receive any dividends.
3. LIQUIDATION PREFERENCE. The holders of Series A Preferred shall have
a liquidation preference as follows:
3.1 RELATIVE PREFERENCE. In the event of any liquidation,
dissolution or winding up of the Corporation, either voluntary or
involuntary, the holders of the Series A Preferred shall be entitled to
receive, out of the assets of the Corporation available for
distribution to stockholders, prior and in preference to any
distribution of any assets of the Corporation to the holders of Common
Stock and of any other class or series of equity securities ranking, as
to liquidation rights, junior to the Series A Preferred, for each share
of Series A Preferred held at the time of such liquidation, dissolution
or winding up, an amount equal to $1.00 plus an amount equal to the
amount that would have been received by such holder had such holder
converted to Common Stock immediately prior to such voluntary or
involuntary liquidation, dissolution or winding up of the Corporation.
If, upon occurrence of such event, the assets and funds thus
distributed the holders of the Series A Preferred are insufficient to
permit the payment to the holders of the Series A Preferred the full
preferential amounts to which they are entitled pursuant to this
Section 3.1, then the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably among
the holders of the Series A Preferred and any other class or series of
capital stock of the Corporation ranking on a parity with the shares of
the Series A Preferred in proportion to the full liquidation preference
to which such holder is entitled.
3.2 DISTRIBUTION. After payment has been made to the holders
of the Series A Preferred of the respective amounts to which they shall
be entitled as provided in Section 3.1 above, the holders of such
shares shall not have any right or claim to any of the remaining assets
of the Corporation.
4. CONVERSION. The holders of the Series A Preferred shall have
conversion rights as follows:
4.1 RIGHT TO CONVERT. Each share of Series A Preferred shall
be convertible, at the option of the holder thereof, at any time after
September 30, 2000, for such number of fully paid and nonassessable
shares of Common Stock of the Corporation as is determined by
multiplying the number of shares of Series A Preferred being converted
by 12,000. Immediately following such conversion, the rights of the
holders of converted Series A Preferred shall cease and the persons
entitled to receive the Common Stock upon the conversion of Series A
Preferred shall be treated for all purposes as having become the owners
of such Common Stock, subject to the rights provided herein.
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4.2 MECHANICS OF CONVERSION. To convert Series A Preferred
into Common Stock, the holder shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation
or of any transfer agent for the Series A Preferred, and shall give
written notice to the Corporation at such office that he elects to
convert the same. Such notice shall also state the number of shares of
Series A Preferred to be converted and the name or names in which such
holder wishes the certificate or certificates for Common Stock to be
issued. The Corporation shall, as soon as practicable thereafter, issue
and deliver at such office to such holder of Series A Preferred, a
certificate or certificates for the number of shares of Common Stock to
which he shall be entitled as provided herein. Such conversion will be
deemed to have been made immediately prior to the close of business on
the date of such surrender of the shares of Series A Preferred to be
converted, and the person or persons entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock
on such date.
4.3 STOCK SPLITS; DIVIDENDS; ADJUSTMENTS. If the Corporation,
at any time while the Series A Preferred are outstanding, shall pay a
stock dividend or otherwise make a distribution or distributions on the
Common Stock, or the outstanding shares of Common Stock are subdivided,
combined or consolidated, by reclassification, stock split or
otherwise, into a greater or lesser number of shares of Common Stock,
the number of shares into which such Series A Preferred is convertible
shall, concurrently with the effectiveness of such dividend,
subdivision, combination or consolidation, be proportionately adjusted.
4.4 NO IMPAIRMENT. The Corporation will not, by amendment
hereof or of its Certificate of Incorporation, or through any
reorganization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Corporation, but will at all
times in good faith assist in the carrying out of all the provisions of
this Section 4 and in the taking of all such action as may be necessary
or appropriate in order to protect the conversion rights of the holders
of the Series A Preferred against impairment.
4.5 NOTICE OF RECORD DATE. In the event of any taking by the
Corporation of a record date of the holders of any class of securities
for the purpose of determining the holders thereof who are entitled to
receive any dividend or other distribution, any security or right
convertible into or entitling the holder thereof to receive additional
shares of Common Stock, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, the Corporation
shall deliver to each holder of Series A Preferred, at least 20 days
prior to the date specified therein, a notice specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution, security or right and the amount and character of such
dividend, distribution, security or right.
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4.6 FRACTIONAL SHARES. No fractional shares shall be issued
upon the conversion of any Series A Preferred. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more
than one share of Series A Preferred by a holder thereof and all Series
A Preferred issuable upon the purchase thereof shall be aggregated for
purposes of determining whether the conversion and/or purchase would
result in the issuance of any fractional share. If, after the
aforementioned aggregation, the conversion and/or purchase would result
in the issuance of a fraction of a share of Common Stock, the
Corporation shall, in lieu of issuing any fractional share, either
round up the number of shares to the next highest whole number or, at
the Corporation's option, pay the holder otherwise entitled to such
fraction a sum in cash equal to the fair market value of such fraction
on the Conversion Date (as determined in good faith by the Board of
Directors of the Corporation).
4.7 REORGANIZATION OR MERGER. In case of any reorganization or
any reclassification of the capital stock of the Corporation or any
consolidation or merger of the Corporation with or into any other
corporation or corporations or a sale or transfer of all or
substantially all of the assets of the Corporation to any other person,
then, as part of such reorganization, consolidation, merger, or
transfer if the holders of shares of Common Stock receive any
securities as part or all of the consideration for such reorganization,
consolidation, merger or sale, then it shall be a condition precedent
of any such event or transaction that provision shall be made such that
each share of Series A Preferred shall thereafter be convertible into
such new securities at a conversion price and pricing formula which
places the holders of Series A Preferred in an economically equivalent
position as they would have been if not for such event. In addition to
the foregoing, if the holders of shares of Common Stock receive any
other property or cash as part or all of the consideration for such
reorganization, consolidation, merger or sale, then such distribution
shall be treated to the extent thereof as a distribution under Section
4.3 above and such Section shall also apply to such distribution.
5. SPECIFIC ENFORCEMENT. The Corporation agrees that irreparable damage
would occur in the event that any of the provisions hereof were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the holders of Series A Preferred shall be entitled to
specific performance, injunctive relief or other equitable remedies to prevent
or cure breaches of the provisions hereof and to enforce specifically the terms
and provisions hereof, this being in addition to any other remedy to which any
of them may be entitled under agreement, at law or in equity.
6. VOTING RIGHTS. Except as otherwise required by law, the holders of
Series A Preferred shall be entitled to notice of any stockholders' meeting and
to vote with the Common Stock and any other series of Preferred Stock having the
right to vote generally as a single class upon any matter submitted to the
stockholders for a vote, as follows: (i) each holder of Series A Preferred shall
have one vote for each full share of Common Stock into which its respective
shares of Series A Preferred would be convertible on the record date for the
vote, and (ii) the holders of Common Stock shall have one vote per share of
Common Stock.
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7. NOTICES. The Corporation shall distribute to the holders of Series A
Preferred copies of all notices, materials, annual and quarterly reports, proxy
statements, information statements and any other documents distributed generally
to the holders of shares of Common Stock of the Corporation, at such times and
by such method as such documents are distributed to such holders of such Common
Stock.
8. REPLACEMENT CERTIFICATES. The certificate(s) representing the Series
A Preferred held by any holder of Series A Preferred may be exchanged by such
holder at any time and from time to time for certificates with different
denominations representing an equal aggregate number of Series A Preferred, as
reasonably requested by such holder, upon surrendering the same. No service
charge will be made for such registration or transfer or exchange. Upon receipt
by the Corporation of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any stock certificate representing the Series A
Preferred and, in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it, or upon surrender and cancellation of such stock
certificate if mutilated, the Corporation will make and deliver a new stock
certificate of like tenor and dated as of such cancellation at no charge to the
holder.
9. ATTORNEYS' FEES. In connection with enforcement by a holder of
Series A Preferred of any obligation of the Corporation hereunder, the
prevailing party shall be entitled to recovery of reasonable attorneys' fees and
expenses incurred.
10. NO REISSUANCE. No Series A Preferred acquired by the Corporation by
reason of redemption, purchase, conversion or otherwise shall be reissued.
11. SEVERABILITY OF PROVISIONS. If any right, preference or limitation
of the Series A Preferred set forth herein (as may be amended from time to time)
is invalid, unlawful or incapable of being enforced by reason of any rule or law
or public policy, all other rights, preferences and limitations set forth
herein, which can be given effect without the invalid, unlawful or unenforceable
right, preference or limitation shall nevertheless remain in full force and
effect, and no right, preference or limitation herein set forth be deemed
dependent upon any such other right, preference or limitation unless so
expressed herein.
12. LIMITATIONS. Except as may otherwise be required by law, the Series
A Preferred shall not have any powers, preference or relative participating,
optional or other special rights other than those specifically set forth herein
(as may be amended from time to time).
IN WITNESS WHEREOF, this Amended Certificate of Designations of Series
A Convertible Preferred Stock has been executed by the undersigned duly
authorized officers of the Corporation on July 31, 2000.
Biogan International, Inc.
By: /S/ GILLES LaVERDIERE
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Gilles LaVerdiere, President
By: /S/ ROBERT C. MONTGOMERY
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Robert C. Montgomery, Secretary
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