Exhibit 10.12
RESTATED CERTIFICATE OF DESIGNATIONS
RESTATED
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
BIOACCELERATE HOLDINGS, INC.
(Pursuant to Nevada Revised Statutes)
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Bioaccelerate Holdings, Inc., a corporation organized and existing under
the laws of the State of Nevada (the "Company"), hereby certifies that, pursuant
to the authority vested in the Board of Directors of the Company (the "Board")
by the Certificate of Incorporation of the Company (the "Certificate of
Incorporation"), as amended, the following resolution was adopted as of
September 1, 2005 by the Board pursuant to the applicable Nevada Revised
Statutes:
RESOLVED, that pursuant to the authority granted to and vested in the
Board in accordance with the provisions of the Certificate of Incorporation, as
amended, there shall be created a series of Preferred Stock, $0.001 par value,
which series shall have the following designations and number thereof, powers,
preferences, rights, qualifications, limitations and restrictions:
1. Designation and Number of Shares. There shall hereby be created and
established a series of Preferred Stock designated as "Series A Convertible
Preferred Stock" (the "Series A Preferred Stock"). The authorized number of
shares of Series A Preferred Stock shall be 5,500,000 shares; provided, that
whatever number of shares of Series A Preferred Stock is not issued and sold in
the offering of Series A Preferred Stock being undertaken contemporaneously with
the creation of the Series A Preferred Stock shall be cancelled, retired and
eliminated by the Company from the shares of Series A Preferred Stock which the
Company shall be authorized to issue. Any such shares of Series A Preferred
Stock so cancelled, retired and eliminated shall have the status of authorized
and unissued shares of Preferred Stock issuable in undesignated Series and may
be redesignated and reissued in any series other than as Series A Preferred
Stock.
2. Conversion.
(a) Right to Convert. Each share of Series A Preferred Stock shall be
convertible into a number of shares of the Company's common stock, par value
$0.001 per share (the "Common Stock") equal to the applicable Liquidation Amount
(as defined in Section 5 hereof) divided by the then applicable Conversion Price
(as defined herein) upon the earlier to occur of (i) the election of the holder
to convert (an "Optional Conversion"), in whole or in part, at any time, or from
time to time, commencing with date of the issuance of such share of Series A
Preferred Stock (the "Issuance Date") or (ii) the earliest to occur of the
following dates (an "Automatic Conversion"): (A) the date, at any time after the
one year anniversary of the Issuance Date, upon which both (x) the average of
the Market Price (as defined herein) for a share of Common Stock for a period of
at least thirty consecutive Trading Days (as defined herein) exceeds Three
Hundred Per Cent (300%) of the then-applicable Conversion Price and (y) the
average of the trading volume for the Common Stock during such period exceeds
100,000 shares per day (subject to adjustment of such trading volume threshold
in the event of stock splits, reverse stock splits, stock dividends,
recapitalizations or similar events) shares per Trading Day and the shares of
Common Stock issued upon such conversion are registered at such time under an
effective registration statement; (B) upon the affirmative vote of the holders
of a majority of the then outstanding shares of Series A Preferred Stock; or (C)
immediately prior to the closing of an underwritten public offering of the
Company's Common Stock for aggregate gross proceeds to the Company of not less
than One Hundred Million Dollars ($100,000,000) if the public offering price of
the Company's Common Stock is at least two (2) times the then applicable
Conversion Price and the shares of Common Stock issued upon such conversion are
registered at such time under an effective registration statement.
(b) As used herein, "Market Price" means, with respect to any applicable
security as of any applicable date, (i) the last closing trade price of such
security on whichever national securities exchange or trading market (including,
without limitation, the Nasdaq and the OTC Bulletin Board) is the principal
trading market where such security is listed by the Company for trading (the
"Principal Market"), as reported by Bloomberg, or (ii) if the Principal Market
should operate on an extended hours basis and does not designate the closing
trade price, then the last trade price of such security prior to the
commencement of extended trading hours on the applicable date, but in no event
later than 4:30:00 p.m., New York local time, as reported by Bloomberg, or (iii)
if no last trade price is reported for such security by Bloomberg, the average
of the bid prices, on the one hand, and the ask prices, on the other hand, of
all market makers for such security as reported in the "pink sheets" by Pink
Sheets LLC (formerly the National Quotation Bureau, Inc.). The applicable
trading market for such calculation, whether it is the Principal Market or the
"pink sheets", is hereafter referred to as the "Trading Market". The Company
shall make all determinations pursuant to this paragraph in good faith. In the
absence of any available public quotations for the Common Stock, the Board shall
determine in good faith the fair value of the Common Stock, which determination
shall be set forth in a certificate by the Secretary of the Company.
As used herein, "Trading Day" means a day on which the principal Trading
Market with respect to the Common Stock is open for the transaction of business.
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(c) Effecting a Conversion. Immediately upon the occurrence of an
Automatic Conversion, each holder's shares of Series A Preferred Stock, shall be
deemed to have been converted into the applicable number of shares of the
Company's Common Stock in accordance with the then applicable Conversion Price,
and certificates evidencing such shares of Common Stock shall be issued to such
holder within five business days after receipt of the applicable certificates
evidencing such holder's shares of Series A Preferred Stock, together with other
customary documentation (including delivery instructions). The holder shall
effect any Optional Conversion by surrendering the certificate or certificates
representing the shares of Series A Preferred Stock to be converted to the
Company, together with written notice of its election to convert and specifying
the name or names (with address) in which a certificate or certificates for
shares of Common Stock are to be issued (a "Stockholder Conversion Notice").
Each Stockholder Conversion Notice shall specify the number of shares of Series
A Preferred Stock to be converted and the date on which such conversion is to be
effected, which date may be neither prior to, nor more than 10 days after, the
date the holder delivers such Stockholder Conversion Notice. If no conversion
date is specified in a Stockholder Conversion Notice, the conversion date shall
be the date that the Stockholder Conversion Notice is delivered. Each
Stockholder Conversion Notice, once given, shall be irrevocable. A holder of
Series A Preferred Stock may only convert shares of Series A Preferred Stock in
blocks equal to not less than the lesser of (i) the number of shares of Series A
Preferred Stock, convertible into 15,000 shares of Common Stock and (ii) all
shares of Series A Preferred Stock then held by the stockholder. If the holder
is converting less than all shares of Series A Preferred Stock represented by
the certificate or certificates tendered by the holder with the Stockholder
Conversion Notice, the Company shall convert the number of shares of Series A
Preferred Stock so specified and shall promptly deliver (but not more than
fifteen business days later) to such holder a certificate for such number of
shares as have not been converted. Upon an Automatic Conversion, the Company
shall notify each holder thereof and each holder shall surrender the certificate
or certificates representing all of the shares of Series A Preferred Stock owned
by such holder and each holder of shares of Series A Preferred Stock shall be
deemed to be the holder of record of the Common Stock issued upon such Automatic
Conversion. All fractional shares resulting from the conversion of the Series A
Preferred Stock shall be rounded up to the next highest whole share. All
certificates representing shares of Series A Preferred Stock surrendered for
conversion shall be delivered to the Company for cancellation and canceled by
it. As promptly as practicable (but no more than ten business days) after the
surrender of any shares of Series A Preferred Stock, the Company shall (subject
to compliance with the applicable provisions of federal and state securities
laws) deliver to the holder of such shares so surrendered certificate(s)
representing the number of fully paid and nonassessable shares of Common Stock
into which such shares are entitled to be converted. Upon a conversion, any
accrued and unpaid dividends shall be paid either in cash, to the extent funds
are legally available therefor, or shares of Common Stock valued at the Market
Price, in the sole discretion of the Company.
(d) Conversion Price. The initial conversion price per share of the Series
A Preferred Stock (the "Conversion Price"), shall be equal to One Dollar and
Fifty Cents ($1.50) per share of Common Stock into which such number of share of
Series A Preferred Stock is convertible, subject to adjustment as provided in
Section 3.
(e) Reservation of Shares. The Company covenants that it will at all times
reserve and keep available out of its authorized and unissued Common Stock
solely for the purpose of issuance upon conversion of Series A Preferred Stock,
as herein provided, free from preemptive rights or any other actual contingent
purchase rights of persons other than the holders of Series A Preferred Stock
pursuant to this clause, not less than such number of shares of Common Stock as
shall be issuable upon the conversion of all outstanding shares of Series A
Preferred Stock. The Company covenants that all shares of Common Stock that
shall be so issuable shall, upon issue, be duly and validly authorized, issued
and fully paid, nonassessable and freely tradeable.
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If at any time the number of authorized but unissued shares of Common
Stock shall not be sufficient to effect the conversion of all then outstanding
shares of Series A Preferred Stock, in addition to such other remedies as shall
be available to the holders of such Series A Preferred Stock, the Company will
take such corporate action necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes.
(f) Issue Taxes. The Company shall pay all issue taxes, if any, incurred
in respect of the issue of shares of Common Stock on conversion. If a holder of
shares of Series A Preferred Stock specifies that the shares of Common Stock to
be issued on Automatic Conversion are to be issued in a name or names other than
the name or names in which such Series A Preferred Stock stand or the names of
affiliates of the initial holder of such shares, then the Company shall not be
required to pay any additional transfer or other taxes incurred by reason of the
issuance of such shares of Common Stock to the name of another, and if the
appropriate transfer taxes shall not have been paid to the Company or the
transfer agent for the Series A Preferred Stock, as applicable, at the time of
Automatic Conversion of the Series A Preferred Stock, as applicable, the shares
of Common Stock issued upon conversion thereof may be registered in the name or
names in which the Series A Preferred Stock, as applicable, were registered,
despite the instructions to the contrary.
3. Adjustment of Conversion Price.
(a) Definition of Additional Stock. For purposes of this Section 3,
"Additional Shares of Common Stock" includes all shares of Common Stock issued
by the Company after the Issuance Date, other than:
(i) The Shares of Series A Preferred Stock, or the Shares of
Common Stock issued upon conversion of shares of Series A Preferred
Stock;
(ii) Shares of Common Stock (subject to appropriate adjustment for
any stock dividend, stock split, combination or other similar
recapitalization affecting such shares) issuable or issued to the
Company's employees, officers, directors or consultants pursuant to
a stock option plan or restricted stock plan approved by the Board;
(iii) Shares of Common Stock issued or issuable pursuant to
subsection 3(d) below;
(iv) Shares of Common Stock or Preferred Stock issuable upon
exercise of options, warrants or upon conversion of convertible
securities or other rights outstanding as of the Issuance Date; and
options, warrants, and other convertible securities or rights issued in
connection with the sale by the Company of the Series A Preferred
Stock, if any; and
(v) Securities and options, warrants and other rights to
purchase securities issued (a) to financial institutions or lessors in
connections with commercial credit agreements, equipment financings or
similar transactions or (b) to other corporations, persons or entities
in connection with acquisitions, mergers or similar business
combinations, partnership arrangements, strategic alliances, licensing
arrangements or similar non-capital raising transactions approved by
the Board, including within this exception securities and options,
warrants and rights to purchase securities issued to raise capital
provided that the use of proceeds is to consummate such non-capital
raising transactions.
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The number and kind of securities issuable upon the conversion of the
Series A Preferred Stock and the Conversion Price shall be subject to adjustment
from time to time in accordance with the following provisions:
(b) Subdivision or Combination of Shares. In the event that the Company
shall at any time or from time to time, prior to conversion of shares of Series
A Preferred Stock (x) subdivide the outstanding shares of Common Stock into a
larger number of shares or (y) combine the outstanding shares of Common Stock
into a smaller number of shares, then, and in each such case, the Conversion
Price in effect immediately prior to such event shall be adjusted (and any other
appropriate actions shall be taken by the Company) so that the holder of any
share of Series A Preferred Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock or other securities of
the Company that such holder would have owned or would have been entitled to
receive upon or by reason of any of the events described above, had such share
of Series A Preferred Stock been converted immediately prior to the occurrence
of such event. An adjustment made pursuant to this Section 3(b) shall become
effective retroactively in the case of any such subdivision or combination, to
the close of business on the day upon which such corporate action becomes
effective.
(c) Stock Dividends. In case Additional Shares of Common Stock are issued
as a dividend or other distribution on the Common Stock (or such dividend is
declared), the Conversion Price shall be reduced, as of the date a record is
taken of the holders of Common Stock for the purpose of receiving such dividend
or other distribution (or if no such record is taken, as at the earliest of the
date of such declaration, payment or other distribution), to the Conversion
Price determined by multiplying the Conversion Price in effect immediately prior
to such declaration, payment or other distribution by a fraction (i) the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to the declaration or payment of such dividend or other
distribution, and (ii) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after the declaration or payment
of such dividend or other distribution. In the event that the Company shall
declare or pay any dividend on the Common Stock payable in any right to acquire
Common Stock for no consideration, then the Company shall be deemed to have made
a dividend payable in Common Stock in an amount of shares equal to the maximum
number of shares issuable upon exercise of such rights to acquire Common Stock.
(d) Recapitalization or Reclassification of Common Stock. In case of any
(i) capital reorganization or any reclassification (other than a change in par
value) of the capital stock of the Company, or (ii) exchange or conversion of
the Common Stock for or into securities of another corporation or other entity,
or (iii) consolidation or merger of the Company with or into any other person
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock or any issuance
of Additional Shares of Common Stock) or (iv) sale, lease or other conveyance of
all or substantially all of the assets of the Company, then in each instance
referred to in the preceding clauses (i) through (iv), the Board and the person
formed by such consolidation or resulting from such capital reorganization,
reclassification or merger or which acquires (by sale, lease or other
conveyance) such assets, as the case may be, shall make provision such that the
Series A Preferred Stock shall thereafter be convertible for the kind and amount
of shares of stock, other securities, cash and other property receivable upon
such capital reorganization, reclassification, consolidation, merger, sale,
lease or other conveyance, as the case may be, by a holder of shares of Common
Stock equal to the number of shares of Common Stock underlying the Series A
Preferred Stock, as applicable, issuable upon the conversion of the Series A
Preferred Stock immediately prior to the effective date of such capital
reorganization, reclassification, merger, consolidation, sale, lease or other
conveyance and, in each instance referred to in the preceding clauses (i)
through (iv) (each, a "Transaction"), appropriate adjustment (as reasonably
determined in good faith by the Board) shall be made in the application of the
provisions herein set forth with respect to rights and interests thereafter of
the holders of the Series A Preferred Stock, to the end that the provisions set
forth herein (including the specified changes in and other adjustments of the
number of shares underlying the Series A Preferred Stock) shall thereafter be
applicable, as near as reasonably may be, in relation to any such shares of
stock or other securities or other property thereafter deliverable upon
conversion of the Series A Preferred Stock. The Company shall not enter into any
Transaction unless effective provision shall be made so as to give effect to the
provisions set forth in this subsection (d).
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The Company shall not effect any transaction described in this subsection
3(d) unless (i) it first gives twenty (20) days' prior written notice of such
merger, consolidation, exchange of shares, recapitalization, reorganization or
other similar event or sale of assets (during which time the holders of Series A
Preferred Stock shall be entitled to convert the Series A Preferred Stock) and
(ii) the resulting successor or acquiring entity (if not the Company) assumes by
written instrument the obligations of this subsection 3(d). The provisions of
this subsection 3(d) shall similarly apply to successive consolidations,
reorganizations, reclassifications, exchanges, conversions, mergers, sales,
leases and other conveyances.
(e) Issuance of Stock at Less than Conversion Price. If the Company shall
issue any Additional Shares of Common Stock after the Issuance Date (other than
as provided in the foregoing subsections 3(b) through 3(d)), for no
consideration or for a consideration per share less than the Conversion Price in
effect on the date of and immediately prior to such issue, then in such event,
the Conversion Price shall be reduced, concurrently with such issue, to a price
equal to the quotient obtained by dividing:
(i) an amount equal to (x) the total number of shares of
Common Stock outstanding immediately prior to such issuance or sale multiplied
by the Conversion Price in effect immediately prior to such issuance or sale,
plus (y) the Aggregate Consideration Received (as such term is defined in
subsection 3(g)(v)) or deemed to be received by the Company upon such issuance
or sale, by
(ii) the total number of shares of Common Stock outstanding
immediately after such issuance or sale.
(f) Issuance of Options and Convertible Securities Deemed Issuance of
Additional Shares of Common Stock. If the Company, at any time or from time to
time after the Issuance Date, shall issue any options, warrants or rights to
purchase Common Stock (collectively, "Options") or securities that, by their
terms, directly or indirectly, are convertible into or exchangeable for shares
of Common Stock ("Convertible Securities") (in each case other than those
securities excluded, pursuant to Section 3, from the definition of "Additional
Shares of Common Stock") or shall fix a record date for the determination of
holders of any class of securities entitled to receive any such Options or
Convertible Securities, in each case other than those securities excluded,
pursuant to Section 3, from the definition of "Additional Shares of Common
Stock", then the maximum number of shares of Common Stock (as set forth in the
instrument relating thereto without regard to any provision contained therein
for a subsequent adjustment of such number) issuable upon the exercise of such
Options or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued under this Certificate as of the time
of such issue or, in case such a record date shall have been fixed, as of the
close of business on such record date, provided that in any such case in which
Additional Shares of Common Stock are deemed to be issued:
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(i) no further adjustment in the Conversion Price shall be
made upon the subsequent issue of Convertible Securities or shares of
Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities and, upon the expiration of any
such Option or the termination of any such right to convert or exchange
such Convertible Securities, the Conversion Price then in effect
hereunder shall forthwith be increased to the Conversion Price which
would have been in effect at the time of such expiration or termination
had such Option or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never been issued,
and the Common Stock issuable thereunder shall no longer be deemed to
be outstanding;
(ii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or decrease in the number of
shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon any such
increase or decrease becoming effective, be recomputed to reflect such
increase or decrease insofar as it affects such Options or the rights
of conversion or exchange under such Convertible Securities, provided
that no readjustment pursuant to this clause (B) shall have the effect
of increasing the Conversion Price to an amount which exceeds the lower
of (i) the Conversion Price on the original adjustment date, or (ii)
the Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date
and such readjustment date; and
(iii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any decrease in the
consideration payable to the Company, or increase in the number of
shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon any such
decrease or increase becoming effective, be recomputed to reflect such
decrease or increase insofar as it affects such Options or the rights
of conversion or exchange under such Convertible Securities, provided
that no readjustment pursuant to this clause (C) shall have the effect
of decreasing the Conversion Price to an amount which exceeds the lower
of (i) the Conversion Price on the original adjustment date, or (ii)
the Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date
and such readjustment date.
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(g) Other Provisions Applicable to Adjustment Under this Section 3. The
following provisions shall be applicable to the adjustments in the Conversion
Price as provided in this Section 3.
(i) Treasury Shares. The number of shares of Common Stock at
any time outstanding shall not include any shares thereof then directly
or indirectly owned or held by or for the account of the Company.
(ii) Other Action Affecting Common Stock. If the Company shall
take any action affecting the outstanding number of shares of Common
Stock other than an action described in any of the foregoing
subsections 3(b) through 3(f) hereof, inclusive, which would have an
inequitable effect on the holders of the Series A Preferred Stock, then
the Conversion Price shall be adjusted in such manner and at such times
as the Board on the advice of the Company's independent public
accountants may in good faith determine to be equitable in the
circumstances.
(iii) Minimum Adjustment. No adjustment of the Conversion
Price shall be made if the amount of any such adjustment would be an
amount less than one percent (1%) of the Conversion Price then in
effect, but any such amount shall be carried forward and an adjustment
in respect thereof shall be made at the time of and together with any
subsequent adjustment which, together with such amount and any other
amount or amounts so carried forward, shall aggregate an increase or
decrease of one percent (1%) or more.
(iv) Certain Adjustments. The Conversion Price shall not be
adjusted upward except in the event of a combination of the outstanding
shares of Common Stock into a smaller number of shares of Common Stock.
(v) Determination of Consideration.
(A) For purposes of subsection 3(e), the "Effective Price"
of Additional Shares of Common Stock shall mean the quotient
determined by dividing the total number of Additional Shares of
Common Stock issued or sold, or deemed to have been issued or sold,
by the Corporation under subsection 3(e), into the Aggregate
Consideration Received, or deemed to have been received, by the
Company under this subsection 3(e), for the issue of such Additional
Shares of Common Stock
(B) For purposes of this Subsection 3(f), the Aggregate
Consideration Received by the Company for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(A) Cash and Property: Such consideration shall:
(1) insofar as it consists of cash, be computed at the
aggregate gross amount of cash received by the
Company before deduction of any underwriting or
similar commissions, compensation or concessions
paid or allowed by the Company in connection with
such issue or sale and without deduction of any
expenses payable by the Company and excluding
amounts paid or payable for accrued interest or
accrued dividends;
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(2) insofar as it consists of property other than
cash, be computed at the fair market value thereof
at the time of such issue, as determined in good
faith by the Board; and
in the event Additional Shares of Common Stock are issued together with other
shares or securities or other assets of the Company for consideration which
covers both, be the proportion of such consideration so received, computed as
provided in clauses (1) and (2) above, as determined in good faith by the Board.
(B) Options and Convertible Securities. The consideration
per share received by the Company for Additional Shares of Common
Stock deemed to have been issued pursuant to subsection 3(f)(ii),
relating to Options and Convertible Securities, shall be determined
by dividing
(1) the total amount, if any, received or receivable
by the Company as consideration for the issue of
such Options or Convertible Securities, plus the
minimum aggregate amount of additional
consideration (as set forth in the instruments
relating thereto, without regard to any provision
contained therein for a subsequent adjustment of
such consideration) payable to the Company upon
the exercise of such Options or the conversion or
exchange of such Convertible Securities, or in the
case of Options for Convertible Securities, the
exercise of such Options for Convertible
Securities and the conversion or exchange of such
Convertible Securities, by
(2) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto,
without regard to any provision contained therein
for a subsequent adjustment of such number)
issuable upon the exercise of such Options or the
conversion or exchange of such Convertible
Securities.
(i) No Impairment. The Company will not, by amendment 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 Company but will at all
times in good faith assist in the carrying out of all the provisions of Section
3 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
Stock against impairment.
(j) Notices of Adjustments. Whenever the Conversion Price is adjusted as
herein provided, the Chief Financial Officer (or other senior executive officer
in the absence of such person) of the Company shall, in good faith, compute the
adjusted Conversion Price in accordance with the foregoing provisions and shall
prepare a written certificate setting forth such adjusted Conversion Price and
showing in detail the facts upon which such adjustment is based, and such
written instrument shall promptly be delivered to each record holder of the
Series A Preferred Stock.
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4. Ranking.
The Series A Preferred Stock shall rank, as to dividends, rights upon
liquidation, dissolution or winding up, senior and prior to (i) the Common Stock
and (ii) each other class or series of capital stock of the Company hereafter
created which does not expressly rank pari passu with or senior to the Series A
Preferred Stock, as applicable, except as otherwise approved by the affirmative
vote or consent of the holders of a majority of the outstanding shares of Series
A Preferred Stock pursuant to Section 9 hereof. (All equity securities of the
Company to which the Series A Preferred Stock ranks senior to, whether with
respect to dividends, rights upon liquidation, dissolution, winding up or
otherwise, including the Common Stock, are collectively referred to herein as
"Junior Securities," all equity securities of the Company to which the Series A
Preferred Stock ranks on a parity with, whether with respect to dividends or
upon liquidation, dissolution, winding up or otherwise, are collectively
referred to herein as "Parity Securities" and all equity securities of the
Company to which the Series A Preferred Stock ranks junior, whether with respect
to dividends or upon liquidation, dissolution, winding up or otherwise are
collectively referred to herein as "Senior Securities").
5. Liquidation Rights.
(a) Liquidation Preference. Upon a voluntary or involuntary
liquidation, under applicable bankruptcy or reorganization legislation, or
dissolution or winding up of the Company, (each a "Liquidation"), before any
distribution of assets shall be made to the holders of Junior Securities, the
holder of each share of Series A Preferred Stock then outstanding shall be paid
out of the assets of the Company legally available for distribution to its
stockholders (the "Available Assets") an amount per share equal to the
"Liquidation Amount." For purposes of a Liquidation, the "Liquidation Amount"
shall mean the original issue price per share of the Series A Preferred Stock
($6.00, as adjusted for stock splits, dividends, combinations or other
recapitalization of the Series A Preferred Stock) plus any declared and unpaid
dividends thereon (the "Liquidation Preference"). Upon the completion of the
distribution required by this subsection 5(a), and any other distribution to any
other class or series of Senior Securities, if assets remain in the Company, the
remaining assets of the Company available for distribution to stockholders shall
be distributed among the holders of shares of any other series of preferred
stock in accordance with their respective terms, then to the holders of Common
Stock pro rata based on the number of shares of the Common Stock actually
outstanding and held by holders of shares of Common Stock. Notwithstanding the
foregoing, if the holders of the Series A Preferred Stock would receive on an
as-converted basis an amount greater than the Liquidation Preference, such
holders shall be entitled to receive such greater amount. In the event of any
"Deemed Liquidation" (as such term is hereinafter defined), the holder of each
share of Series A Preferred Stock then outstanding shall be paid out of the
Available Assets the greater of (x) the Liquidation Preference or (y) such
amount as the holders of the Series A Preferred Stock would receive on an
as-converted basis. For purposes hereof, a "Deemed Liquidation" shall be deemed
to have occurred if the Company shall effect any merger, combination,
reorganization of the Company, other than (i) a merger, combination or
reorganization or other transaction (or a related series of such transactions)
in which less than Fifty Per Cent (50%) of the voting power of the Company is
disposed of or in which the stockholders of the Company immediately prior to
such merger, reorganization or consolidation own greater than Fifty Per Cent
(50%) of the Company's voting power immediately after, or (ii) any transaction
to which a majority in interest of the outstanding Series A Preferred Stock has
consented.
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(b) Priority. If the Available Assets are insufficient to pay the
holders of Series A Preferred Stock the full amount of the Liquidation Amount,
the holders of Series A Preferred Stock, in the aggregate, will share ratably in
the distribution of the Available Assets in proportion to the respective amounts
that would otherwise be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such shares were paid
in full.
(c) Notice. The Company will send a written notice of a Liquidation
to the holders of record of the Series A Preferred Stock, stating a payment
date, the Liquidation Amount and the place where the Liquidation Amount will be
paid, using any of the following delivery methods: (i) in person; (ii) mailed by
certified or registered mail, return receipt requested; or (iii) sent by
national courier, not less than 25 days prior to the payment date stated
therein. The notice will be addressed to each holder at its address as shown by
the records of the Company.
6. Appraisal. If a majority in interest of the holders of the Series A
Preferred Stock reasonably disagrees with any of the Board's determinations
referred to in Section 2, Section 3 or Section 5 above (each, a
"Determination"), then the Company and a majority in interest of such holders
(the "Series A Representative") shall use good faith efforts to mutually agree
upon the designation of a single Qualified Appraiser (as defined below) within
seven (7) business days of such event requiring a Determination. The date of
such event requiring a Determination shall be referred to as the "Determination
Date." If such a single Qualified Appraiser is designated, that person shall
make a Determination. If the Company and the Series A Representative do not so
agree upon the designation of a single Qualified Appraiser within such period,
then within five (5) business days following the end of such period, each of the
Company and the Series A Representative by written notice to the other shall
designate a Qualified Appraiser (or if any party fails to select a Qualified
Appraiser within the time period specified, the person selected by the other
party shall be the Qualified Appraiser) and the two Qualified Appraisers so
designated shall within ten (10) business days of their designation jointly
designate a third Qualified Appraiser and solely such third Qualified Appraiser
so designated shall independently make a Determination. If there is only a
single Qualified Appraiser, the fees and expenses of the Qualified Appraiser
shall be paid equally by the Company and the Series A Representative. If three
Qualified Appraisers are appointed, the Company shall pay the fees and expenses
of the Qualified Appraiser which it appoints, the Series A Representative shall
pay the fees and expenses of the Qualified Appraiser which it appoints, and the
fees and expenses of the third Qualified Appraiser shall be shared equally by
the Company and the Series A Representative. The designated Qualified Appraiser
shall make the Determination not later than ten (10) business days following the
Determination Date. The Determination made by the Qualified Appraiser shall be
final, conclusive and binding on the parties hereto. None of the Qualified
Appraisers shall be affiliated with any of the Company, the Series A
Representative or another Qualified Appraiser. For the purposes of this
Agreement, "Qualified Appraiser" shall mean an individual who is engaged on a
regular basis (although not necessarily full time) in valuing securities or
arrangements similar to this Agreement, as the case may be, and may include (but
shall not be limited to) professional business appraisers, investment bankers or
accountants.
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7. Dividends.
Each share of Series A Preferred Stock shall carry a cumulative dividend
at a rate of Six Per Cent (6%) per annum, payable out of funds legally available
therefor, prior and in preference to the payment of all other dividends on the
Junior Securities, quarterly in arrears (with the first payment on December 31,
2005) in cash or shares of the Company's Common Stock, at the Company's option,
whether or not declared by the Board of Directors. The shares of the Company's
Common Stock issued in payment of the dividend hereunder shall be valued at the
twenty (20) trading day trailing average market price of the Common Stock as of
the date five (5) days prior to the dividend payment date. In the event that the
shares of Common Stock issued in payment of dividends payable more than one
hundred eighty (180) days after the issuance of the Series A Preferred Stock to
which such dividends relate are not then registered under an effective
registration statement, the Company shall only pay such dividends in cash.
8. Voting Rights.
Each holder of outstanding shares of Series A Preferred Stock is entitled
to the number of votes equal to the number of whole shares of Common Stock into
which the shares of Series A Preferred Stock held of record by such holder are
convertible as of the applicable record date at each meeting of stockholders of
the Company (and written actions of stockholders in lieu of meetings) with
respect to any and all matters presented to the stockholders of the Company for
their action or consideration. Except as provided by law and by the provisions
of Section 9 below, the holders of shares of Series A Preferred Stock shall vote
together with the holders of Common Stock as a single class.
Notwithstanding the above, the Company shall provide each holder of Series
A Preferred Stock with prior written notification of any meeting of the
stockholders (and copies of proxy materials and other information sent to
stockholders). In the event of any undertaking by the Company of a record of its
stockholders for the purpose of determining stockholders who are entitled to
receive payment of any dividend or other distribution, any right to subscribe
for, purchase or otherwise acquire (including by way of merger, consolidation or
recapitalization) any share of any class or any other securities or property, or
to receive any other right, or for the purpose of determining stockholders who
are entitled to vote in connection with any proposed sale, lease or conveyance
of all or substantially all of the assets of the Company, or any proposed
liquidation, dissolution or winding up of the Company, the Company shall mail a
notice to each holder, at least ten (10) days prior to the record date specified
therein (or twenty (20) days prior to the consummation of any transaction or
event, whichever is earlier), of the date on which any such record is to be
taken for the purpose of such dividend, distribution, right or other event, and
a brief statement regarding the amount and character of such dividend,
distribution, right or other event to the extent known at such time.
To the extent that under the Nevada Revised Statutes ("NRS") the vote of
the holders of the Series A Preferred Stock, voting separately as a class or
series as applicable, is required to authorize a given action of the Company,
the affirmative vote or consent of the holders of at least a majority of the
shares of the Series A Preferred Stock, voting together in the aggregate and not
in separate series unless required under the NRS, represented at a duly held
meeting at which a quorum is present or by written consent of a majority of the
shares of Series A Preferred Stock (except as otherwise may be required under
the NRS), voting together in the aggregate and not in separate series unless
required under the NRS, shall constitute the approval of such action by the
class or by both series, as applicable. To the extent that under the NRS holders
of the Series A Preferred Stock are entitled to vote on a matter with holders of
Common Stock, voting together as one class, each share of Series A Preferred
Stock shall entitle the holder thereof to cast that a number of votes per share
as is equal to the number of shares of Common Stock into which it is then
convertible using the record date for determining the stockholders of the
Company eligible to vote on such matters as the date as of which the Conversion
Price is calculated. Holders of the Series A Preferred Stock shall be entitled
to written notice of all stockholder meetings or written consents (and copies of
proxy materials and other information sent to stockholders) with respect to
which they would be entitled by vote, which notice would be provided pursuant to
the Company's bylaws and the NRS).
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9. Protective Provisions. So long as the shares of Series A Preferred
Stock are outstanding, the Company shall not, take, approve or otherwise ratify
any of the following actions without the consent of at least a majority of the
aggregate of the then outstanding shares of Series A Preferred Stock, voting as
a separate series:
(a) authorize, issue or agree to authorize or issue any new class
or series of Senior Securities or Parity Securities or securities or rights of
any kind convertible into or exercisable or exchangeable for any such Senior
Securities or Parity Securities, or offer, sell or issue any Senior Securities
or Parity Securities or securities or rights of any kind convertible into or
exercisable or exchangeable for any such Senior Securities or Parity Securities;
(b) purchase, repurchase or redeem shares of (i) Common Stock,
(ii) securities or rights of any kind convertible into or exercisable or
exchangeable for Common Stock or (iii) other securities of the Company, (except
in the case of a termination of an employee, at which the Company may repurchase
or redeem such shares of Common Stock at cost and pursuant to any agreement
under which such shares of Common Stock were issued);
(c) increase the authorized number of shares of Series A Preferred
Stock; or
(d) amend the Certificate of Incorporation or Bylaws of the
Company or alter or change the rights, preferences or privileges of the Series A
Preferred Stock or any Parity Securities or Senior Securities in each case so as
to affect adversely the rights, preferences or privileges of the Series A
Preferred Stock.
10. No Reissuance of Series A Preferred Stock.
No outstanding share or shares of Series A Preferred Stock acquired by the
Company by reason of redemption, purchase, conversion or otherwise shall be
reissued, and all such shares of Series A Preferred Stock shall be cancelled,
retired and eliminated from the shares of Series A Preferred Stock which the
Company shall be authorized to issue. Any such shares of Series A Preferred
Stock acquired by the Company shall have the status of authorized and unissued
shares of Preferred Stock issuable in undesignated Series and may be
redesignated and reissued in any series other than as Series A Preferred Stock.
11. Registered Holders.
A holder of Series A Preferred Stock registered on the Company's stock
transfer books as the owner of shares of Series A Preferred Stock shall be
treated as the owner of such shares for all purposes. All notices and all
payments required to be mailed to a holder of shares of Series A Preferred Stock
shall be mailed to such holder's registered address on the Company's stock
transfer books, and all dividends and redemption payments to a holder of Series
A Preferred Stock made hereunder shall be deemed to be paid in compliance hereof
on the date such payments are deposited into the mail addressed to such holder
at such holder's registered address on the Company's stock transfer books.
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12. Certain Remedies.
Any registered holder of shares of Series A Preferred Stock shall be
entitled to an injunction or injunctions to prevent breaches of the provisions
of this Certificate of Designations and to enforce specifically the terms and
provisions of this Certificate of Designations in any court of the United States
or any state thereof having jurisdiction, this being in addition to any other
remedy to which such holder may be entitled at law or in equity.
13. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
14. Severability of Provisions.
If any right, preference or limitation of the Series A Preferred Stock set
forth herein (as may be amended) from time to time is invalid, unlawful or
incapable of being enforced by reason of any rule of law or public policy, such
right, preference or limitation (including, without limitation, the dividend
rate) shall be enforced to the maximum extent permitted by law and all other
rights, preferences and limitations set forth herein (as so amended) which can
be given effect without the invalid, unlawful or unenforceable right, preference
or limitation herein set forth shall be deemed dependent upon any other such
right, preference or limitation unless so expressed herein.
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[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the undersigned, being the CEO of the Company, has
executed this Certificate of Designations as of September 1, 2005.
BIOACCELERATE HOLDINGS, INC.
By:
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Name:
Title: