NATURAL WAY TECHNOLOGIES, INC.
Certificate of Designation, Preferences and Rights
of a Series of 10,000 Shares of Preferred Stock,
$.001 Par Value, Designated
"Series C Convertible Preferred Stock"
--------------------------------------
Natural Way Technologies, Inc., a Nevada Corporation (the "Corporation"),
by way of this Certificate of Designation, Preferences and Rights (as it may
hereafter be amended, modified or supplemented upon vote of the Board of
Directors of the Corporation and approval of all holders of Series C Preferred
Stock, as such term is hereinafter defined, this ("Certificate") certifies
that, pursuant to the authority expressly vested in the Board of Directors by
Article IV of the Corporation's Restated Articles of Incorporation, and in
accordance with the provisions of Section 78.195 of the Nevada Revised
Statutes, the Board of Directors of the Corporation has duly adopted the
following resolutions creating a series of its Preferred Stock designated as
Series C Convertible Preferred Stock:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation by the provisions of
Article IV of the Articles of Incorporation of the Corporation, as
amended, this Board of Directors hereby creates a series of Preferred
Stock, $.001 par value, and this Board of Directors hereby fixes the
designation and the voting power, preferences and rights, and the
qualifications, limitations or restrictions thereof, of the shares of such
series (in addition to the powers, preferences and rights, and the
qualifications, limitations or restrictions thereon, set forth in the
Articles of Incorporation, as amended, which are applicable to all series
of Preferred Stock of the Corporation) as follows:
Ten thousand (10,000) shares of Preferred Stock, par value $.001 per
share, of the Corporation are hereby constituted as a series of Preferred
Stock designated as Series C Convertible Preferred Stock (the "Series C
Convertible Preferred Stock" ) with the voting powers and the preferences
and rights hereinafter set forth:
Section 1. Dividends. The holders of shares of Series C Convertible
Preferred Stock (the "Preferred Shares") shall be entitled to receive out of
the assets of the Corporation legally available for dividends such dividends in
cash, stock or property as the board of directors shall, in its discretion,
declare from time to time.
Section 2. Liquidation Preference. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, the holders of the Preferred Shares shall be entitled to be
paid first out of the assets of the Corporation available for distribution to
holders of the Corporation's capital stock of all classes an amount equal to
$1,000.00 per share of Series C Convertible Preferred Stock, and no more,
before any distribution shall be made to the holders of the Common Stock or any
other class of capital stock or series thereof ranking junior to the Preferred
Shares with respect to the distribution of assets. If the assets of the
Corporation shall be insufficient to permit the payment in full to the holders
of the Preferred Shares of the amounts thus distributable, then the entire
assets of the Corporation available for such distribution shall be distributed
ratably among the holders of the Preferred Shares in proportion to the full
preferential amount each such holder is otherwise entitled to receive.
Section 3. Voting Rights. The holders of the Series C Preferred Stock
shall have no right to vote with respect to matters requiring the vote of the
holders of the Corporation's capital stock except as set forth below. Without
the approval of holders of a majority of the outstanding Preferred Shares, the
Corporation shall not (a) authorize, create or issue any shares of any class or
series ranking senior to the Preferred Shares as to liquidation rights, (b)
amend, alter or repeal, by any means, the Certificate of Incorporation if the
powers, preferences, or special rights of the Preferred Shares would be
adversely affected, or (c) become subject to any restriction on the Preferred
Shares, other than restrictions arising solely under the General Corporation
Law of the State of Nevada or existing under the Certificate of Incorporation
as in effect on December 31, 1995.
Section 4. Redemption. Preferred Shares shall be subject to redemption,
at the option of the Corporation, in whole or in part, on ten (10) days written
notice, at any time(s) after December 31, 1997 at a price equal to $1,000 per
share plus any accrued dividends.
Section 5. Conversion. (a) The holder of any Series C Preferred Shares
shall have the right, at his option on delivery to the Corporation of written
notice and upon surrender of such shares to the Corporation, to convert part or
all of the Preferred Shares held into shares of Common Stock of the
Corporation. In the event the holder of any Series C Preferred Shares has not
notified the Corporation of his election to convert the Preferred Shares into
Common Stock on the terms set forth herein on or before December 31, 1997, the
right of the holders of such Preferred Shares to convert the same into Common
Stock shall expire, provided, however, that all Preferred Shares remaining
outstanding at such date shall, at the option of the Corporation, be converted
into Common Stock of the Corporation on the terms set forth herein on such
date.
(b) Conversion of the Series C Preferred Shares shall be subject to the
following limitation: the outstanding Preferred Shares will become eligible
for conversion on or after the date which is 45 days after the closing date of
the purchase of such Preferred Shares (the "Closing Date"). Each conversion
shall be effected by surrendering the certificate(s) evidencing the Preferred
Shares to be converted to the Company with the form of conversion certificate
executed by the holder thereof as to all or a specified portion of the shares
evidenced by such certificate (subject to the limitations set forth above and
provided that conversions will not be permitted for Preferred Shares having an
aggregate liquidation preference of less than $100,000 except as may be
required by the foregoing limitation on conversion) and accompanied, if
required by the Company, by proper assignment in blank. The date of execution
of such certificate and delivery by facsimile to the Company at (713) 547-9810,
shall be deemed to the be "conversion date", provided that certificates
evidencing the shares so converted are delivered within three (3) business days
to the Company or its designated agent.
(c) The number of shares of Common Stock issuable upon conversion of each
share of Series C Convertible Preferred Stock shall equal the number of shares
of Series C Preferred Shares to be converted multiplied by one thousand (1,000)
and divided by the "Conversion Factor." The Conversion Factor for purposes
hereof shall be equal to the lesser of the Market Price on the Conversion Date,
or $3.00.
(d) For purposes hereof, the "Market Price" shall be the average closing
bid price of the Corporation's Common Stock as reported on the Nasdaq System
(or such other similar organization which may report such information if Nasdaq
no longer reports such information or, if not so available, the fair market
price as determined by the Board of Directors) for the five business days
preceding the date of notice of conversion.
(e) Neither fractional shares, nor scrip or other certificates evidencing
such shares, shall be issued by the Corporation on conversion of the Preferred
Shares as herein provided, but the Corporation shall round to the nearest whole
number the number of shares issuable in such event.
(f) Preferred Shares so converted shall be restored to the status of
authorized but unissued shares.
(g) The Corporation will reserve from its authorized and unissued shares
of Common Stock, and shall increase the number of reserved shares from time to
time, a number of shares sufficient to permit conversion of the Preferred
Shares.
IN WITNESS WHEREOF, Natural Way Technologies, Inc. has caused this
Certificate to be duly executed and attested effective as of the 21st day of
November, 1996.
NATURAL WAY TECHNOLOGIES, INC.
/s/ Yui Yat Hung
Yui Yat Hung, President
ATTEST:
/s/Yiu Yat On
Yiu Yat On, Secretary
STATE OF TEXAS S
S
COUNTY OF HARRIS S
I, T. MICHELE HANLON, a Notary Public, do hereby certify that on this 21
day of November, 1996, personally appeared before me Yui Yat Hung who, being
by me first duly sworn declared that he is the President of Natural Way
Technologies, Inc., that he signed the foregoing document as President of the
corporation, and that the statements therein contained are true and correct.
/s/ T. Michele Hanlon
T. Michele Hanlon
Notary Public in and for the
State of Texas
Printed Name of Notary Public: T. Michele Hanlon
My Commission Expires: June 26, 1999
STATE OF TEXAS S
S
COUNTY OF HARRIS S
I, T. MICHELE HANLON, a Notary Public, do hereby certify that on this 21
day of November, 1996, personally appeared before me Yiu Yat On who, being by
me first duly sworn declared that he is the Secretary of Natural Way
Technologies, Inc., that he signed the foregoing document as Secretary of the
corporation, and that the statements therein contained are true and correct.
/s/ T. Michele Hanlon
T. Michele Hanlon
Notary Public in and for the
State of Texas
Printed Name of Notary Public: T. Michele Hanlon
My Commission Expires: June 26, 1999