Exhibit 3.3
CERTIFICATE
OF DESIGNATION OF PREFERENCES,
RIGHTS
AND LIMITATIONS
OF
SERIES
A, PREFERRED STOCK
The
undersigned, Robert Timothy, does hereby certify that:
1. He is
the President and Secretary, respectively, of Sport Endurance, Inc., Inc., a
Nevada corporation (the “Corporation”).
2. The
Corporation is authorized to issue 10,000,000 shares of preferred stock, of
which 2,000,000 have been issued.
3. The
following resolutions were duly adopted by the Board of Directors:
WHEREAS,
the Certificate of Incorporation of the Corporation provides for a classes of
its authorized stock known as preferred stock, comprised of 10,000,000 shares,
$0.0001 par value, issuable from time to time in one or more
series;
WHEREAS,
the Board of Directors of the Corporation is authorized to fix the dividend
rights, dividend rate, voting rights, conversion rights, rights and terms of
redemption and liquidation preferences of any wholly unissued series of
preferred stock and the number of shares constituting any Series and the
designation thereof, of any of them; and
WHEREAS,
it is the desire of the Board of Directors of the Corporation, pursuant to its
authority as aforesaid, to fix the rights, preferences, restrictions and other
matters relating to a series of the preferred stock, which shall consist of up
to 10,000,000 shares of the preferred stock which the corporation has the
authority to issue, as follows:
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Class
A Preferred
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10,000,000 Shares
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NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for
the issuance of a series of preferred stock for cash or exchange of other
securities, rights or property and does hereby fix and determine the rights,
preferences, restrictions and other matters relating to each series of preferred
stock as follows:
TERMS
OF PREFERRED STOCK
Section 1. Dividends. The shares
of preferred A stock shall have no dividend rights except to participate in
dividends declared by the Board of Directors in the same rate as the conversion
rights of each issue.
Section 2. Liquidation. Upon any
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary (a “Liquidation”), the
Holders shall not be entitled to any preference but shall participate in the
liquidation with the same status as common share holders in the same ratio as
the conversion rights provide.
Section 3. Voting The shares of
Preferred A Stock shall vote with Common Shareholders at the same rate as the
conversion rights provide.
Section 4. Conversion
Features
The
shares of Preferred A Stock shall convert into shares of the Corporation’s
Common Stock at the discretion of the Holder or the Corporation at the following
rates:
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Class
A Preferred
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3
Shares of Common for each Share
Preferred
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Section 5. Redemption. The
shares of Preferred A Stock shall have no redemption rights.
Section 6. Miscellaneous.
a) Notices. Any and all
notices or other communications or deliveries to be provided by the Holders
hereunder, including, without limitation, any Notice of Conversion, shall be in
writing and delivered personally, by facsimile, sent by a nationally recognized
overnight courier service, addressed to the Corporation, at the address set
forth above, facsimile number to be determined, Attn: Robert Timothy or such
other address or facsimile number as the Corporation may specify for such
purposes by notice to the Holders delivered in accordance with this Section. Any
and all notices or other communications or deliveries to be provided by the
Corporation hereunder shall be in writing and delivered personally, by
facsimile, sent by a nationally recognized overnight courier service addressed
to each Holder at the facsimile telephone number or address of such Holder
appearing on the books of the Corporation, or if no such facsimile telephone
number or address appears, at the principal place of business of the Holder. Any
notice or other communication or deliveries hereunder shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 5:30 p.m. (Eastern Standard time),
(ii) the date after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section later than 5:30 p.m. (Eastern Standard time ) on any
date and earlier than 11:59 p.m. (Eastern Standard time ) on such date,
(iii) the second Business Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given.
b) Absolute Obligation.
Except as expressly provided herein, no provision of this Certificate of
Designation shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the liquidated damages (if any) on, the
shares of Preferred A Stock at the time, place, and rate, and in the coin or
currency, herein prescribed.
c) Lost or Mutilated Preferred
A Stock Certificate. If a Holder’s Preferred Stock certificate shall be
mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver,
in exchange and substitution for and upon cancellation of a mutilated
certificate, or in lieu of or in substitution for a lost, stolen or destroyed
certificate, a new certificate for the shares of Preferred A Stock so mutilated,
lost, stolen or destroyed but only upon receipt of evidence of such loss, theft
or destruction of such certificate, and of the ownership hereof, and indemnity,
if requested, all reasonably satisfactory to the Corporation.
d) Governing Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Certificate of Designation shall be governed by and construed and
enforced in accordance with the internal laws of the State of Nevada, without
regard to the principles of conflicts of law thereof. Each party agrees that all
legal proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by any of the Transaction Documents (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, employees or agents) shall be commenced in the state and federal
courts sitting in the Nevada “Nevada Courts”). Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the Nevada
Courts for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein (including with
respect to the enforcement of any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, or such Nevada Courts are improper or inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Certificate of Designation and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Certificate of
Designation or the transactions contemplated hereby. If either party shall
commence an action or proceeding to enforce any provisions of this Certificate
of Designation, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
e) Waiver. Any waiver by
the Corporation or the Holder of a breach of any provision of this Certificate
of Designation shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Certificate of Designation. The failure of the Corporation or the Holder to
insist upon strict adherence to any term of this Certificate of Designation on
one or more occasions shall not be considered a waiver or deprive that party of
the right thereafter to insist upon strict adherence to that term or any other
term of this Certificate of Designation. Any waiver must be in
writing.
f) Severability. If any
provision of this Certificate of Designation is invalid, illegal or
unenforceable, the balance of this Certificate of Designation shall remain in
effect, and if any provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons and circumstances. If
it shall be found that any interest or other amount deemed interest due
hereunder violates applicable laws governing usury, the applicable rate of
interest due hereunder shall automatically be lowered to equal the maximum
permitted rate of interest.
g) Next Business Day.
Whenever any payment or other obligation hereunder shall be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business
Day.
h) Headings. The
headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designation and shall not be deemed to limit or affect any
of the provisions hereof.
RESOLVED,
FURTHER, that the President or any vice-president, and the secretary or any
assistant secretary or treasurer, of the Corporation be and they hereby are
authorized and directed to prepare and file a Certificate of Designation of
Preferences, Rights and Limitations in accordance with the foregoing resolution
and the provisions of Nevada law.
IN
WITNESS WHEREOF, the undersigned have executed this Certificate this 15th day of
August 2009.
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Name:
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Robert
Timothy
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Name:
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Robert
Timothy
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Title:
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President, Secretary
and sole director
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Title:
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President, Secretary
and sole director
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ANNEX
A
NOTICE OF
CONVERSION
(TO BE
EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES
OF
PREFERRED STOCK)
The
undersigned hereby elects to convert the number of shares of Series A Preferred
Stock indicated below, into shares of common stock, par value $0.001 per share
(the “Common
Stock”), of Sport Endurance, Inc., a Nevada corporation (the
“Corporation”),
according to the conditions hereof, as of the date written below. If shares are
to be issued in the name of a person other than undersigned, the undersigned
will pay all transfer taxes payable with respect thereto and is delivering
herewith such certificates and opinions as reasonably requested by the
Corporation in accordance therewith. No fee will be charged to the Holder for
any conversion, except for such transfer taxes, if any.
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Date
to Effect Conversion:
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_____________________
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Number
of shares of Preferred A Stock owned prior to Conversion
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_____________________
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Number
of shares of Preferred A Stock to be Converted:
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_____________________
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Stated
Value of shares of Preferred A Stock to be Converted:
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_____________________
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Number
of shares of Common Stock to be Issued:
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_____________________
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Applicable
Conversion Price:
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_____________________
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Number
of shares of Preferred A Stock subsequent to Conversion:
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_____________________
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[HOLDER]
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By:
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Name:
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Title:
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