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EXHIBIT 4.8
NORTH AMERICAN TECHNOLOGIES GROUP, INC.
CERTIFICATE OF DESIGNATION
SERIES I CONVERTIBLE PREFERRED STOCK
HENRY W. SULLIVAN and JOSEPH P. GALDA do hereby certify that they are the
Chief Executive Officer and Secretary, respectively, of NORTH AMERICAN
TECHNOLOGIES GROUP, INC., a Delaware corporation (hereinafter referred to as the
"Corporation"); that, pursuant to the Corporation's Certificate of Incorporation
and Section 151 of the Delaware General Corporation Law, the Board of Directors
of the Corporation adopted the following resolutions on September 13, 2000:
WHEREAS, the Corporation has determined to designate a new Series I
Convertible Preferred Stock pursuant to the authority granted in its Certificate
of Incorporation and Section 151 of the Delaware General Corporation Law.
NOW, THEREFORE, the Corporation's Series I Preferred shall have the rights
and preferences set forth below:
SERIES I CONVERTIBLE PREFERRED STOCK. There is hereby created a series of
preferred stock designated as Convertible Preferred Stock, Series I (the "Series
I Preferred"), which will consist of 10,000 shares. The Series I Preferred
shall have the preferences, voting powers, relative, participating, optional or
other special rights and privileges, and the qualifications, limitations and
restrictions as provided below:
1. DIVIDENDS AND DISTRIBUTIONS. Beginning on the date of the issuance of
the Series I Preferred, the holders of shares of Series I Preferred shall be
entitled to receive dividends at a rate of 10% per annum of the Stated Value (as
defined below). Dividends shall be fully cumulative, prior and in preference to
any declaration or payment of any dividend or other distribution on the
Corporation's common stock, par value $0.001 per share ("Common Stock").
Payments of dividends or any other distributions on account of the Series I
Preferred shall be at all times equal in right to the rights of the holders of
the Corporation's Series F Convertible Preferred Stock ("Series F Preferred"),
Series G Convertible Preferred Stock ("Series G Preferred" and Series H
Convertible Preferred Stock ("Series H Preferred"). The dividends on the Series
I Preferred shall accrue from the date of issue and shall be payable semi-
annually on June 30 and December 31 of each year (each a "Dividend Date"),
commencing on December 31, 2000 except that if any such date is a Saturday,
Sunday or legal holiday (a "Non-Business Day") then such dividend shall be
payable on the next day that is not a Saturday, Sunday or legal holiday on which
banks in the State of Delaware are permitted to be closed (a "Business Day") to
holders of record as they appear on the stock books of the Corporation on the
applicable record
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date, which shall be not more than 60 nor less than 10 days preceding the
payment date for such dividends, as fixed by the Board of Directors (the "Record
Date"). The dividends on the Series I Preferred shall be payable only when, as
and if declared by the Board of Directors out of funds legally available
therefor. The dividends shall, at the option of the Corporation, either (1) be
payable in cash, or (2) accrue, and thereafter shall be payable in cash,
provided, however, that at the option of the Corporation, dividends may be paid
upon conversion of the Series I Preferred Stock, as provided in Section 3
hereof, in cash or in such number of shares of the Corporation's Common Stock
equal to the aggregate amount of the accrued dividends divided by the Conversion
Price (as defined herein). Subject to the provisions of the preceding sentence
and the next paragraph, in the absence of an election by the Board of Directors
within 10 days of each Dividend Date to pay dividends in cash, the dividends
shall accrue. The amount of dividends payable for any period that is shorter or
longer than a full half-year shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. LIQUIDATION RIGHTS. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, distributions
shall be made to the holders of Series I Preferred in respect of such Series I
Preferred, in the following manner:
(a) SERIES I PREFERRED LIQUIDATION PREFERENCE. The holders of the
Series I Preferred shall be entitled to be paid all amounts payable hereunder on
account of the liquidation of the Corporation, in parity with the holders of the
Series F Preferred, Series G Preferred and Series H Preferred, but prior to the
payment of any amounts on account of the liquidation of the Corporation to the
holders of any other class or Series of preferred stock or common stock of the
Corporation, out of the assets of the Corporation available for distribution to
holders of its capital stock, a preferred distribution as set forth below. The
liquidation preference payable to the holders of the Series I Preferred shall be
equal to the sum of (i) $100.00 per share (the "Stated Value"), as appropriately
adjusted to reflect any stock split, stock dividend, combination,
recapitalization and the like (collectively a "Recapitalization") of the Series
I Preferred, plus (ii) all accrued or declared but unpaid dividends (including
any interest accrued thereon calculated through the date of liquidation) (the
sum of (i) and (ii) being collectively referred to as the "Series I Liquidation
Preference"). If, upon the occurrence of a liquidation, dissolution or winding
up, the assets and funds thus distributed among the holders of the Series F
Preferred, the Series G Preferred, the Series H Preferred and Series I Preferred
shall be insufficient to permit the payment to such holders of their full
liquidation preferences, then the entire assets and funds of the Corporation
legally available for distribution to the holders of capital stock shall be
distributed, pari passu, to the holders of the Series F Preferred, the Series G
Preferred, the Series H Preferred and the Series I Preferred.
(b) REMAINING ASSETS. If assets are remaining after payment in full
of the Series I Liquidation Preference to all holders of the Series I Preferred,
then the holders of any other class or series of Preferred Stock (other than the
holders of the Series F Preferred, Series G Preferred and Series H Preferred,
which Series have a liquidation preference in parity with the Series I
Preferred), if any, shall be entitled to their respective preferential amounts
on liquidation, and thereafter the holders of the Common Stock shall be entitled
to share ratably in all such
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remaining assets and surplus funds based on the number of shares of Common Stock
held by each.
(c) VALUATION OF SECURITIES AND PROPERTY. In the event the
Corporation proposes to distribute assets other than cash in connection with any
liquidation, dissolution or winding up of the Corporation, the value of the
assets to be distributed to the holders of shares of Series I Preferred shall be
determined in good faith by the Board of Directors. Notwithstanding the
foregoing, any securities so distributed shall be valued as follows:
(i) If the securities are traded on a national securities
exchange or the NASDAQ National Market System ("NASDAQ/NMS") or actively
traded over-the-counter (other than NASDAQ/NMS), the value of such
securities shall be deemed to be the average of the security's closing
prices on such exchange or NASDAQ/NMS over the thirty (30) calendar day
period ending three (3) days prior to the distribution; and
(ii) If there is no active public market, the value shall be the
fair market value thereof as determined in good faith by the Board of
Directors.
The method of valuation of securities subject to an investment letter or other
restrictions on free marketability shall be adjusted to make an appropriate
discount from the market value determined as above in clauses (i) or (ii) to
reflect the fair market value thereof as determined in good faith by the Board
of Directors.
3. CONVERSION. The Series I Preferred is subject to conversion at the
times and on the terms set forth in this Section 3:
(a) RIGHT OF HOLDER TO CONVERT.
(i) Election to Convert. The Series I Preferred shall initially
be convertible, at the option of the holder thereof, at any time at the
principal office of the Corporation or any transfer agent for the Series I
Preferred, into that number of fully paid and nonassessable shares of Common
Stock as would equal, (1) the aggregate Stated Value of the Series I Preferred
shares to be converted, divided by (2) $2.00 per share (the "Conversion Price").
Upon such a conversion, the aggregate amount of all accrued or declared but
unpaid dividends (including any interest, if any, accrued thereon calculated as
of the date of conversion) on the Series I Preferred shall also be converted and
converted into Common Stock at the Conversion Price.
(ii) Mechanics of Conversion. Before a holder of Series I
Preferred shall be entitled to convert the same into shares of Common Stock and
to receive certificates therefor, such holder shall surrender the certificate or
certificates therefor, duly endorsed, at the principal office of the Corporation
or of any transfer agent for the Series I Preferred, and shall give written
notice to the Corporation at such office that such holder elects to convert the
same. The Corporation shall, as soon as practicable after such delivery, issue
and deliver to such holder of the Series I Preferred, a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled as aforesaid. Such conversion shall be deemed to have
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been made immediately prior to the close of business on the date of such
surrender of the shares of the Series I Preferred to be converted, and the
holder or holders 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.
(b) ADJUSTMENT OF CONVERSION PRICE.
(i) Subdivisions, Combinations, or Consolidations of Common Stock.
In the event the outstanding shares of Common Stock shall be subdivided,
combined or consolidated, by stock split, stock dividend, combination or like
event, into a greater or lesser number of shares of Common Stock, the Conversion
Price in effect immediately prior to such subdivision, combination,
consolidation or stock dividend shall, concurrently with the effectiveness of
such subdivision, combination or consolidation, be proportionately adjusted.
(ii) Reclassifications. In the case, at any time after the date
hereof, of any capital reorganization or any reclassification of the stock of
the Corporation (other than as a result of a stock dividend or subdivision,
split-up or combination of shares), or the consolidation or merger of the
Corporation with or into another person (other than a consolidation or merger in
which the Corporation is the continuing entity and which does not result in any
change in the Common Stock), the shares of the Series I Preferred shall, after
such reorganization, reclassification, consolidation or merger be convertible
into the kind and number of shares of stock or other securities or property of
the Corporation or otherwise to which such holder would have been entitled if
immediately prior to such reorganization, reclassification, consolidation or
merger such holder had converted its shares of the Series I Preferred Stock into
Common Stock.
(iii) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section 3,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
the Series I Preferred so adjusted a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of a the Series I Preferred, furnish or cause to be furnished
to such holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the conversion of the Series I Preferred.
(c) ADDITIONAL ADJUSTMENTS TO CONVERSION PRICE.
(i) Special Definitions For purposes of this Section (3)(c), the
following definitions shall apply:
(1) "Options" shall mean rights, options or warrants to
subscribe for purchase or otherwise acquire either Common Stock or Convertible
Securities.
(2) "Convertible Securities" shall mean any evidences of
indebtedness, shares or other securities convertible into or exchangeable for
Common Stock.
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(3) "Additional Shares of Common Stock" shall mean any shares
of Common Stock issued (or, pursuant to Section 3(c)(iii), deemed to be issued)
by the Corporation after the Series I Original Issue Date (as defined herein),
other than shares of Common Stock issued or issuable:
(A) upon conversion of shares of Series F Preferred,
Series G Preferred (regardless of Subseries) and Series H Preferred;
(B) pursuant to a stock grant, option plan or purchase
plan, other employee stock incentive program or agreement approved by the Board
of Directors (as adjusted under Section 3(b)) (the "Option Pool");
(C) in a transaction described in Section (3)(b);
(D) pursuant to the terms of any stock grant, option,
warrant, employment agreement or other written obligation, agreement or
commitment to which the Company was a party as of the Series I Original Issue
Date; or
(E) by way of dividend or other distribution on shares of
Common Stock excluded from the definition of Additional Shares of Common Stock
by the foregoing clauses (A), (B), (C) or (D).
(4) "Series I Original Issue Date" shall mean the date on
which the first share of Series I Preferred was issued.
(ii) Limitation on Adjustment of Conversion Price. In the event
of any adjustment of the Conversion Price under this Subsection 3(c), no such
adjustment shall result in an adjustment to the Conversion Price to a price
below $1.50 per share or a price above $2.000 per share (subject in either case
to adjustment under Subsection 3(b) hereof).
(iii) Deemed Issuance of Additional Shares of Common Stock
(1) Options and Convertible Securities. In the event the
Corporation at any time or from time to time after the Series I Original Issue
Date shall issue any Options (other than the issuance of Options pursuant to the
Option Pool) or Convertible Securities 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, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the exercise of such Options and conversion or
exchange of such Convertible Securities shall be deemed to be Additional Shares
of Common Stock issued 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 Additional Shares of Common Stock shall not be deemed to have been
issued unless the consideration per share (determined pursuant to Section
(3)(c)(v) hereof) of such Additional Shares of Common Stock would be less than
$2.00 per share (subject to adjustment under
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Subsection 3(b) hereof) on the date of and immediately prior to such issue, or
such record date, as the case may be, and provided further that in any such case
in which Additional Shares of Common Stock are deemed to be issued:
(A) except as provided in Section (3)(c)(iii)(1)(B), 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;
(B) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any change in the
consideration payable to the Corporation, or change in the number of shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof (other
than under or by reason of provisions designed to protect against dilution), 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; and
(C) no readjustment pursuant to clause (B) above shall have
the effect of increasing the Conversion Price to an amount which exceeds the
lower of (1) the Conversion Price on the original adjustment date or (2) 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.
(iv) Adjustment of Conversion Price Upon issuance of Additional Shares
of Common Stock. In the event the Corporation shall issue Additional Shares of
Common Stock for consideration per share less than $2.00 (subject to Section
3(c)(ii) hereof, and subject to further adjustment under Subsection 3(b)
hereof), then and in each such event the Conversion Price shall be reduced to a
price (calculated to the nearest cent) determined by multiplying such Conversion
Price by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issue plus the number of
shares of Common Stock which the aggregate consideration received by the
Corporation for the total number of Additional Shares of Common Stock so issued
would purchase at such Conversion Price, and the denominator of which shall be
the number of shares of Common Stock outstanding immediately prior to such issue
plus the number of such Additional Shares of Common Stock so issued.
(v) Determination of Consideration. For purposes of this Section
(3)(c), the consideration received by the Corporation for the issuance of any
Additional Shares of Common Stock shall be computed as follows:
(1) Cash and Property: Such consideration shall:
(A) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Corporation;
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(B) insofar as it consists of property other than cash, be
computed at the fair value thereof at the time of such issue. as determined by
the Board of Directors in the good faith exercise of its reasonable business
judgment; and
(C) in the event Additional Shares of Common Stock are issued
together with other shares or securities or other assets of the Corporation for
consideration which covers both, be the proportion of such consideration so
received, computed as provided in clauses (A) and (B) above, as determined by
the Board of Directors in the good faith exercise of its reasonable business
judgment.
(2) Option and Convertible Securities. The consideration per share
received by the Corporation for Additional Shares of Common Stock deemed to have
been issued pursuant to Section (3)(c)(iii)(1), relating to Options and
Convertible Securities, shall be determined by dividing.
(A) the total amount, if any, received or receivable by the
Corporation 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 Corporation 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
(B) 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.
(d) STATUS OF CONVERTED STOCK. In case any shares of the Series I
Preferred shall be converted pursuant to Section 3 hereof, the shares so
converted shall, at the option of the Corporation, be canceled, and, if not
canceled, shall not be reissuable as shares of Series I Preferred but shall be
part of the authorized but unissued capital stock of the Corporation.
(e) MISCELLANEOUS. All calculations under this Section 3 shall be
made to the nearest cent or to the nearest whole share, as the case may be.
(f) NO IMPAIRMENT. The Corporation will not, through any
reorganization, recapitalization, 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 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 Series I Preferred against impairment.
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(g) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series I Preferred, such number of its shares of Common Stock
as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series I Preferred. 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 the Series I Preferred, the
Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
4. VOTING RIGHTS. Except as otherwise required by law or by Section
8, the holders of all of the Series I Preferred issued and outstanding, in the
aggregate, shall be entitled to the number of votes equal to the number of
shares of Common Stock into which shares of Series I Preferred are convertible
on any record date, or, if no such record date is established, at the date such
vote is taken or any written consent of stockholders is solicited, such votes to
be counted together with all other shares of stock of the Corporation having
general voting power and not separately as a class. Fractional votes by the
holders of the Series I Preferred shall not, however, be permitted, and any
fractional voting rights shall (after aggregating all shares into which shares
of Series I Preferred held by each holder could be converted) be rounded to the
nearest whole number.
5. NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record 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 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 mail to each
holder of the Series I Preferred, at least twenty (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 or right, and the amount
and character of such dividend distribution or right.
6. NOTICES. Any notice required by the provisions of the Certificate
to be given to the holders of the Series I Preferred shall be deemed given when
deposited in the United States mail, postage prepaid, and addressed to each
holder of record at his or her address appearing on the books of the
Corporation, or upon actual receipt when personally delivered or sent by
overnight or other courier delivery.
7. PROTECTIVE PROVISIONS. So long as any shares of the Series I
Preferred are outstanding, the Corporation shall not, without first obtaining
the approval of the holders of at least a majority in interest of the Series I
Preferred then outstanding, voting as a separate class, take any action that:
(i) alters the rights, preferences or privileges of the Series I
Preferred;
(ii) increases or decreases the authorized number of shares of
Series I Preferred of the Corporation;
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(iii) creates any new class or series of shares that has a
preference over the Series I Preferred with respect to voting, dividends or
liquidation preferences; or
(iv) reclassifies stock into shares having a preference over the
Series I Preferred with respect to voting, dividends or liquidation preferences.
This Certificate may be delivered by facsimile and executed in one or more
counterparts, each of which shall constitute an original and all of which taken
together shall constitute one and the same Consent.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its President and attested to by its
Secretary and the corporate seal to be affixed hereto, this 14th day of
September, 2000.
NORTH AMERICAN TECHNOLOGIES
GROUP, INC.
Date: September 14, 2000 /s/ Henry W. Sullivan
--------------------------------------
Henry W. Sullivan
President and Chief Executive Officer
/s/ Joseph P. Galda
--------------------------------------
Date: September 14, 2000 Joseph P. Galda
Secretary
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